Allahabad High Court
Pooja Kotal Gupta & Anr. vs State Of U.P. & Anr. on 17 June, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Case :- U/S 482/378/407 No. - 1688 of 2020 Applicant :- Pooja Kotal Gupta & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Jalaj Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Virendra Kumar Srivastava,J.
In view of COVID-2019 Pandemic, the matter is being heard in chamber through Video Conferencing.
Heard Sri Jalaj Kumar Gupta, learned counsel for the applicants, Ms. Nand Prabha Shukla, learned A.G.A. for the State and peruse the record.
The instant application has been filed u/s 482 Cr.P.C. with a prayer to quash the criminal proceeding of Case No. 1482 of 2020, arising out of Charge Sheet No. 72 of 2020, Case Crime No. 1509 of 2015, U/s 406, 504, 506 I.P.C. (State vs. Pooja Kotal Gupta & Ors.) pending before the learned Chief Judicial Magistrate, District Kheri.
Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in this case due to a counter-blast case. Learned counsel further submits that in this case, as per the prosecution version, three kitti committees of Rs. 1,10,000/-, 1,02,000/- and Rs. 80,000/- were formed wherein the applicant no. 1 and the informant were a member. As per the prosecution case, the whole money as alleged by the informant used to be deposited to the applicant no. 1 but the applicant no. 1 has refused to return the due amount of Rs. 1,06,000/- to the informant. Learned counsel further submits that as per the prosecution story when the informant tried to get the alleged rupees returned from the applicant no. 1 but his money was not returned and the applicant no. 1 and 2 along with other family members have threatened to the informant. Learned counsel further submits that the whole proceeding is a civil dispute, no cognizable offence is made out against the applicants and is also an abuse of process of law which is liable to be quashed.
Per-contra, learned A.G.A. has vehemently opposed and submits that in this case, cognizable offence is made out since the applicants have misappropriated Rs. 1,06,000/- of the informant. At this stage, the veracity of the prosecution case and merit/demerit of the case cannot be adjudged.
Hon'ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana & Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843, Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra AIR (2019) SC 847, after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicants. All the submissions made by the learned counsel for the applicants relates to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire criminal proceedings is hereby refused.
Without observing any opinion on the merit or demerit of the trial of the case, the instant application stands dismissed.
Since the certified copy of this order, in view of the COVID-2019 pandemic, may not be easily available to the applicants and the applicants are unable to get certified copy of this order, they may file computer generated copy of this order from the official website of this Court and self- attested by the learned counsel for the applicants, before the concerned Magistrate/Court/Authority/Official.
The concerned Magistrate/ Court/ Authority/ Official, before accepting such computerized copy, filed by the applicants, as a genuine, shall verify its authenticity from the official website of this Court and proceed further in view of the direction issued by a Division Bench of this Court vide order dated 06.4.2020, passed in Suo-Motu PIL No.564 of 2020 which reads as under :-
"To meet the eventualities occurred as a consequence to lock-down due to the threat of Novel Corona Virus (COVID-19), we issued certain directions under an order dated 26th March, 2020. In continuation of the directions aforesaid it is further directed that:-
(i) .................................
(ii) It is brought to our notice that before enforcement of the lock-down different courts in the State of Uttar Pradesh including the High Court have granted orders to release the accused-applicant/appellant(s) on bail but they have not been released so far due to non-availability of sureties.
Looking to impediments in arranging sureties because of lock-down, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicant/appellant(s) whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lock-down may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicant/appellant(s) undertakes to furnish required sureties within a period of one month from the date of his/her actual release.
The order be published in the official website of this Court. A soft-copy of this order shall be sent to all concerned Courts and Tribunals; the learned Advocate General; the learned Additional Solicitor General of India; the learned Assistant Solicitor General of India; State Public Prosecutor and the Chairman of Bar Council of Uttar Pradesh."
Office is also directed to send a computerized copy of this order to the District Judge concerned through e-mail or the fax, as the case may be, forthwith.
Order Date :- 17.6.2020 saurabh