Allahabad High Court
Yogeshwar Mishra And Another vs State Of U.P. And Another on 22 September, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 48
Case :- APPLICATION U/S 482 No. - 26078 of 2016
Applicant :- Yogeshwar Mishra And Another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Manish Tiwary, Ashwini Kumar Awasthi
Counsel for Opposite Party :- G.A.
Hon'ble Pramod Kumar Srivastava,J.
1. In complaint case no. 1298 of 2013 (Sanjay Singh Vs. Yogeshwar Mishra & others), the court of Special Chief Judicial Magistrate, Allahabad had passed order dated 6.11.2013, of cognizance and summoning of applicants Yogeshwar Mishra and Chandr Prabha Mishra for offences u/ss 504 and 506 IPC. The proceedings of said complaint case was challenged through application u/s 482 CrPC No. 5844 of 2015 with request for quashing entire proceedings of said case. This application was disposed of by order dated 26.2.215 this Court, by which relief sought for quashing of the proceedings of said case, but it was observed that if accused feels appropriate, he may avail relief through application u/s 245(2) CrPC before trial court. After it applicants moved application dated 3.4.2015 for their discharge. After affording opportunity of hearing to parties trial court had dismissed said application by it's order dated 30.6.2015.
2. Said order dated 30.6.2015 and entire proceedings of aforesaid complaint case has been challenged again by same applicants through present application u/s 482 CrPC.
3. Learned counsel for the applicants contended that complaint was filed on the basis of incorrect facts, because daughter of applicant no.-2 was never married with complainant (present opposite party no.-2). He further pointed out that there are other criminal proceedings going on against opposite party no.-2, in which he is absconding and is not even appearing in proceedings u/s 9 of the Hindu Marriage Act initiated by him. His submission is that prosecution is malicious and is based on incorrect facts, therefore, the proceedings of said complaint case should be quashed.
4. These contentions were refuted by AGA who supported the merits of the impugned ofder, and also submitted that after disposal of earlier application u/s 482 CrPC on merits for the identical relief, the second application is not maintainable.
5. From perusal of record, it is found that the order of cognizance and summoning was passed against the applicants for using defamatory language against complainant, and also for using foul words relating to abusive language and intimidating him. At this stage, this contention of learned counsel for the applicants cannot be accepted that on the basis of allegedly claimed relationship the opposite party no.-2 had filed complaint case maliciously on the basis of incorrect facts. Such averments are in nature of defence version relating to facts that can be considered by trial court at appropriate time, when evidences in that regard will adduced and facts will be proved.
6. So far as the merits of the impugned order dated 30.6.2015 is concerned, there appears no factual or legal irregularity or infirmity in it. The order of cognizance and summoning was passed against the applicants on the basis of facts available before the trial court. In fact this case relate to facts and not to law points. Whether applicants had committed overt acts for which they were summoned, is a matter of fact that can be proved or disproved on the basis of evidences only. When the order of cognizance and summoning has become final on the basis of factual aspect, the allowing of any application u/s 245(2) CrPC in such matter will amount to reviewing the said order or recalling it, that cannot be done by trial court. After considering the facts trial court had passed impugned order rejecting application u/s 245(2) CrPC, which apparently suffers from no infirmity or perversity that may require interference by this court.
7. Apart from it, earlier application u/s 482 Cr.P.C. No. 5844 of 2015 has been moved by applicants for same relief, for which present application has been moved. At the time of disposal of earlier application, relief sought has been declined by this court. The contention of learned counsel for the applicant on subsequent filing of application u/s 482 CrPC for same relief is totally unacceptable. If this court has once considered the prayer for the relief sought by applicant and rejected it, then subsequent application for same relief cannot be allowed in exercise of inherent jurisdiction of this court on the ground that for such subsequent application for same relief and for same facts but in different garb of order of rejection of application u/s 245(2) CrPC. Such practice is nothing but abuse of process of court which should be depreciated. There is no legal propriety for granting same relief, when matter has been decided only on merit.
8. In view of above this application is dismissed.
9. Applicants are directed to appear before trial court immediately.
Order Date :- 22.9.2016
vkj
