Allahabad High Court
Mohd. Rizwan Khan Alias Mohd. Rizwan ... vs State Of U.P. Thru. The Prin. Secy. Home ... on 7 May, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 2316 of 2022 Applicant :- Mohd. Rizwan Khan Alias Mohd. Rizwan Alias Pappu Opposite Party :- State Of U.P. Thru. The Prin. Secy. Home Lko. And Another Counsel for Applicant :- Ramakar Shukla Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned charge sheet dated 23.6.2020 as well as cognizance/summoning order dated 9.4.2021 and the entire proceedings of Crl. Case No. 2037/2021 arising out of Case Crime No. 166 of 2020, under Sections 34/384/506 I.P.C., Police Station- Kotwali Nagar, District- Sultanpur.
Learned counsel for the applicant submits that on perusal of the entire allegation in the FIR, it reveals that no offence u/s 384 IPC is made out against the applicant. As per definition of Section 383 IPC, neither any fear of injury was extended to the opposite party no.2 nor any ingredient was found regarding dishonestly inducing any person to deliver to any person any property or valuable security. The relevant Section 383 IPC is quoted hereunder:
"383. Extortion.?Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits ?extortion?."
The counsel for the applicant further submits that thus, no disclosed offence is made out against the applicant. But the investigating officer without collecting any cogent and credible offence wrongly submitted the charge-sheet against the applicant and thereby, the learned Magistrate without applying judicial mind wrongly summoned the applicant.
Learned A.G.A. vehemently opposes the submissions advanced by the counsel for the applicant and submits that prima facie, case is made out against the applicant. Thus, the trial court rightly summoned the applicant after applying the judicial mind.
So far as quashing of charge sheet and entire proceedings is concerned, from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioners. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the petitioner has got a right of discharge according to the provisions prescribed in Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court.
So far as the cognizance and summoning order passed by the learned trial court is concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and petitioner failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
The prayer for quashing the impugned charge sheet as well as impugned summoning order is refused.
However, considering the aforesaid, the applicant is permitted to appear before the concerned court within one month from today through his counsel and move an application claiming discharge. The concerned court shall after hearing the counsel decide the application on merits, in accordance with law, within a period of two months from today. At the time of hearing of the discharge application, the counsel may raise all the legal issues also.
No coercive measures shall be adopted against the applicant for a period of two months from today or till the disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless, it shall not abstain from discharging the accused only on the ground that the material available at the time of hearing the discharge application. On the other hand, if the lower court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
With the above observations/directions, this application stands disposed of.
Order Date :- 7.5.2022 Shravan