Allahabad High Court
Prem Kumar Gautam vs State Of U.P. And Another on 26 August, 2021
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- APPLICATION U/S 482 No. - 978 of 2021
Applicant :- Prem Kumar Gautam
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajesh Kumar Gautam
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Rajesh Kumar Gautam, learned counsel for applicant 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 05.02.2020 submitted in Case Crime No.7652 of 2020, under Sections- 376(2)(A)(1), 506 I.P.C., Police Station- Awagarh, District- Etah, as well as entire proceedings of consequential Case No.7652 of 2020, (State Vs. Prem Kumar Gautam), arising out of above-mentioned case crime number, and now pending in the court of Chief Judicial Magistrate, Etah.
Learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in above-mentioned case crime number. Allegations made in F.I.R. are false and concocted. It is then contended that applicant is a member of U.P. Police Force. Applicant initiated proceedings against first informant regarding his arrest as he is a gangster. As a counter-blast to the action taken by applicant in discharge of his official duties, present criminal proceedings have been engineered against applicant. It is next contended that investigation is not free and fair. It is defective. Investigating agency has acted as an agent of prosecution. Consequently, charge-sheet submitted against applicant is tainted.
Attention of Court was also invited to the report submitted by Circle Officer, Jalesar dated 10.09.2019 to demonstrate that the F.I.R. has been lodged only to falsely implicate present applicant. 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 10.07.2019, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of the investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of the investigation, which is substantially adverse to applicant, Investigating Officer opined to submit a charge-sheet. Accordingly, a charge-sheet dated 05.02.2020 has been submitted against applicant under Sections- 376(2)(A)(1), 506 I.P.C. Perusal of charge-sheet further goes to show that as many as seven prosecution witnesses have been nominated. It is thus urged that in view of above, it cannot be said that at this stage that prosecution of applicant is false or there is no material to support the prosecution of applicant. 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]"
It is then contended that charge-sheet is the outcome of investigation. When no defect, deficiency, irregularity or illegality have been pointed out in investigation of above-mentioned case crime number, consequently charge-sheet cannot be challenged.
Reliance placed upon report dated 10.09.2019 is wholly misconceived as it is not part of case-diary. It is also not an impeccable piece of evidence. On the aforesaid premise, learned A.G.A. contends that present application is liable to be dismissed.
When confronted with aforesaid, learned counsel for applicant 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 of aforementioned criminal case. 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, application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 26.8.2021
Saif
