Allahabad High Court
Rajeev Kumar Gupta vs State Of U.P. And Another on 23 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- APPLICATION U/S 482 No. - 36579 of 2022 Applicant :- Rajeev Kumar Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Javed Habib Counsel for Opposite Party :- G.A. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
By means of this Application under Section 482 Cr.P.C., the prayer is made to quash the charge sheet No.08/2022 dated 18.01.2022, cognizance order dated 28.09.2022 and the proceedings of Criminal Case No. 6448 of 2022 (State versus Rajeev Gupta) arising out of Case Crime No.043 of 2021, under Sections 353, 504 I.P.C. & 3/7 E.C. Act, Police Station Usawa, District Bandaun, pending in the court of Additional Chief Judicial Magistrate-II, Badaun.
It is argued by the learned counsel for the applicant that the applicant used to run a fair price shop. He resigned from his dealership. His resignation was accepted. He returned the remaining ration and e-pass machine, so no liability of the applicant was left towards the opposite party. As per opinion given by the prosecuting officer to S.S.P. concerned, appended at pages 90 to 91 of the paper book, as the whole ration, which was due towards the applicant had been returned to the first informant, so no case under Section 3/7 of E.C. Act can be said to be made out against the applicant. It was opined by the prosecuting officer that the final report could be given in the matter.
Further, the attention of the Court is drawn towards the impugned order dated 28.09.2022 wherein it is mentioned that all the independent witnesses have stated that Supply Inspector, Rajesh Kumar Singh, the opposite party no.2 received back e-pass machine and the rest food grain from the applicant. In the discussion of the order, the trial court also found that offence, under Sections 353 and 504 I.P.C. can be said to be made out against Rajesh Kumar Gupta (the present applicant) and even then in the operative portion of the order, the applicant has been summoned under Section 3/7 E.C. Act also to face trial apart from Sections 353 & 504 I.P.C.
It is true that till the lodging of FIR, after resignation the present applicant had not returned the residue food grain supplied to him and also the e-pass machine. When his resignation was accepted and when it was demanded by the first informant/ opposite party no.2, it is alleged that e-pass machine and remaining ration was returned to the supply inspector. Thus, it is submitted that neither an offence under Section 3/7 E.C. Act can be said to be made out, nor offence under Sections 353 & 504 I.P.C. can be said to be made against him as there is no allegation of any assault or any criminal force used by him.
From the perusal of record, it is found that e-pass machine and the remaining food grain after the acceptance of resignation of the applicant was received back by the Supply Inspector/ opposite party no.2 on 12.04.2021 and even then charge-sheet under Section 3/7 E.C. Act was filed by the investigating officer. In the summoning order also, the trial court has admitted the fact that the residue of food grain and e-pass machine were returned by the present applicant to the Supply Inspector, hence, the case under Sections 353 and 504 I.P.C. can only be said to be made out and by mistake applicant was summoned under Section 3/7 E.C. Act also alongwith Sections 352 and 504 I.P.C.
If we go through the Sections 353 and 504 I.P.C., for offence under Section 504 I.P.C. there must be intention of insult with intent to provoke breach of the peace and in the FIR and the statement of witnesses, it has come that the applicant abused and became ready to fight. As per Section 353 I.P.C. assault or criminal force must be there to constitute an offence under this section and for assault any gesture or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he would make gesture or preparation is about to use criminal force is must. Thus, prima face, the ingredient of assault can be said to be present in the matter.
Hence, on the basis of above discussion of the Court, the impugned order dated 28.09.2022 is quashed to the extent of Section 3/7 of E.C. Act only. For Section 353 and 504 I.P.C. the application of the applicant is rejected.
The Application under Section 482 Cr.P.C. is thus, allowed partly.
Order Date :- 23.2.2023 Radhika