Allahabad High Court
Ram Bihari Yadav And 5 Others vs State Of U.P. And Another on 24 August, 2021
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- APPLICATION U/S 482 No. - 6134 of 2021
Applicant :- Ram Bihari Yadav And 5 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ajay Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ajay Singh, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging charge-sheet dated 03.11.2020 submitted in Case Crime No.107 of 2019, under Sections- 306, 447, 448 and 34 I.P.C., Police Station- Girwan, District- Banda, Cognizance Taking Order dated 05.12.2020 passed by Chief Judicial Magistrate, Banda upon aforesaid charge-sheet, as well as entire proceedings of consequential Case No.10911/IX of 2020, (State Vs. Ram Bihari Yadav and 6 others), under Sections- 306, 447, 448 and 34 I.P.C., Police Station- Girwan, District- Banda arising out of above-mentioned case crime number, and now pending in the court of Additional Chief Judicial Magistrate, Banda.
Learned counsel for applicants contends applicants are innocent. They have been falsely implicated in above-mentioned case crime number. Allegations made in F.I.R. are false and concocted. Learned counsel for applicants has then invited attention of Court to written report dated 31.05.2020 given by Preeti, daughter of Geeta Yadav (deceased). On the basis of above, it is contended that in the aforesaid written report, applicants have not been implicated. Subsequently, as an afterthought applicants have been named in F.I.R. dated 11.06.2020 lodged by first informant/opposite party-2. It is also submitted that from the perusal of post-mortem report of deceased- Geeta Yadav, it is evident that no ante-mortem injury was found on the body of deceased. The doctor who conducted autopsy of the body of deceased has opined that deceased has died on account of asphyxia as a result of ante-mortem hanging. It is further contended that from the material on record, there is nothing to show abatement, instigation or conspiracy on the part of applicants. F.I.R. has been lodged with an ulterior motive to falsely implicate present applicants. There is nothing on record to support prosecution of applicants. On the aforesaid premise, it is thus urged that present criminal proceedings are not only malicious, but also an abuse of process of Court. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that subsequent to F.I.R. dated 11.06.2020, Investigating Officer proceeded with statutory investigation of above-mentioned case crime number in terms of Chapter XII Cr.P.C. During course of the investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected during course of investigation, which is substantially adverse to applicants, he opined to submit charge-sheet. Consequently, a charge-sheet dated 03.11.2020 was submitted against applicants. Perusal of charge-sheet goes to show that as many as 24 prosecution witnesses have been nominated. On the aforesaid premise, it is thus urged that at this stage, it cannot be said that prosecution of applicants is false or there is no material to support the prosecution of applicants. Reference has also been made to paragraph-37 of the judgment of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499, wherein following has been observed. For ready reference, same is reproduced herein under:
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
Consequently, learned A.G.A. submits that applicants are not entitled to any indulgence by this Court.
When confronted with above, learned counsel for applicants could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for Stateand upon perusal of 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 applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
In view of above, present application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 24.8.2021/Saif
