Allahabad High Court
Radhey Shyam And 2 Others vs State Of U.P. And Another on 17 August, 2016
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- APPLICATION U/S 482 No. - 24285 of 2016
Applicant :- Radhey Shyam And 2 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Pratibha Singh,Ashok Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Naheed Ara Moonis,J.
Heard learned counsel for the applicants, the learned AGA for the State and perused the record.
The instant application has been filed by the applicants with a prayer to quash the charge sheet dated 1.3.2016 in Case Crime No.1371 of 2015, under sections 308, 504, 506 I.P.C., Police Station Kotwali Nagar, District Etah pending in the Court of learned Chief Judicial Magistrate Etah.
It is submitted by learned counsel for the applicants that the opposite party no.2 has lodged the F.I.R. against the applicants with absolutely false and concocted allegations when no such incident has ever occurred. Learned court below has proceeded against the applicants in a pedantic manner merely on the basis of statement of the witnesses recorded under Section 161 Cr.P.C. and passed the order taking cognizance against them to face the trial under the aforesaid offence when no prima facie offence is made out, which is nothing but sheer abuse of the process of law.
Per contra learned AGA opposed contention of the applicants stating that the order passed by the learned Magistrate does not suffer from any legal or procedural infirmity. The learned Magistrate has taken cognizance of the matter on the basis of the statement of the complainant and other witnesses including injured under section 161 Cr.P.C. and other clinching material collected by the investigating agency during investigation. The innocence of the applicants cannot be adjudged at the primitive stage. The applicants will have ample opportunity to raise objection at the appropriate stage before the court below.
From the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R. P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing the proceeding is refused. There is no merit in this application filed under Section 482 Cr.P.C., thus the same is accordingly dismissed. The applicants have ample opportunity to raise all the objections at the appropriate stage.
However, the applicants are directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.
In case the applicants fail to surrender within the stipulated period the court below shall take appropriate action against them.
Order Date :- 17.8.2016
RU
