Allahabad High Court
Smt. Rakhi Chauhan vs State Of U.P. And Anr on 25 February, 2019
Bench: Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- APPLICATION U/S 482 No. - 6762 of 2019
Applicant :- Smt. Rakhi Chauhan
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Sanjay Kumar Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Bachchoo Lal,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present application under section 482 Cr.P.C. has been filed to set-aside the entire proceeding of Complaint Case No. 3470 of 2016 (Sanju Devi Vs. Babulal and others), under section 427 IPC, P.S. Kotwali Hathras, District Hathras pending in the court of A.C.J.M. Hathras and summoning order dated 12.11.2018.
The submission of learned counsel for the applicant is that from the perusal of complaint filed by O.P. No. 2 it appears that there is civil dispute in between the parties. No criminal offence is made out against the applicant. The O.P. No. 2 has also filed a Civil Suit No. 93 of 2016 (Smt. Sanju Devi Vs. Smt. Rakhi Chauhan and others) before Civil Judge (Sr. Div.), Hathras on 5.7.2016 for permanent injunction and cancellation of sale deed. In that suit it has not been mentioned that applicant has damaged roof and wall of shop of O.P. No. 2. In fact, there is civil dispute in between the parties and civil suit is also going on in Civil Court. The O.P. No. 2 has filed this false and frivolous complaint only for the purpose of harassment. The summoning order is not in accordance with law.
On the other hand learned A.G.A. argued that in complaint it has been mentioned that applicant and other co-accused have damaged the wall and roof of shop of O.P. No. 2. The learned Magistrate after considering the entire evidence available on record and finding a prima facie case has summoned the applicant and other co-accused under section 427 IPC. There is no illegality or irregularity in the impugned summoning order.
A perusal of the record shows that O.P. No. 2 in his complaint it has mentioned that O.P. No. 2 has purchased a shop from one Babu Lal in the year 2014 and the shop is in possession of O.P. No. 2. In para 2 of the complaint it has mentioned that the applicant and other co-accused damaged the wall and roof of shop on the pretext to new construction. The learned Magistrate after considering the allegation made in the complaint as well as statements of complainant and witnesses recorded under section 200 and 202 Cr.P.C. and finding a prima facie case has summoned the applicant and other co-accused to face the trial under section 427 IPC. I do not find any illegality or irregularity in the impugned summoning order. The learned Magistrate dealing with the complaint at this stage has to see only prima facie case and it can not be said that no prima facie case is made out against the applicant. The disputed defence of the accused can not be considered at this stage.
Considering the facts and circumstances of the case, I do not find any ground to set-aside the entire proceeding of the aforementioned case as well as summoning order dated 12.11.2018, therefore, the prayer for setting aside the same is hereby refused.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, her prayer for bail shall be considered and decided expeditiously in accordance with law.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 25.2.2019
Masarrat
