Allahabad High Court
Dilshad Ahmad And Another vs State Of U.P. And Another on 13 July, 2021
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Court No. - 40
Case :- APPLICATION U/S 482 No. - 10472 of 2021
Applicant :- Dilshad Ahmad And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Akash Deep Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Pathak,J.
Heard learned counsel for the applicant and learned A.G.A. for the State, who have appeared through video conferencing.
Applicant has invoked the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the charge sheet dated 20.01.2021 and summoning order dated 17.02.2020 of Criminal Case No.8956 of 2021 arising out of Case Crime No.658 of 2020 under Sections 504, 506 IPC, P.S.Rajghat, District-Gorakhpur pending in the Court of Civil Judge (S.D.)/F.T.C., District-Gorakhpur, by which the applicants have been called upon for trial under Section 504 and 506 IPC.
Learned counsel for the applicant submitted that no offence against applicant is disclosed and present prosecution has been instituted with a malafide intention for the purposes of harassment. He has referred certain documents and statements in support of his contention.
Learned counsel for the applicant submitted that FIR dated 04.09.2020 i.e. Case Crime No.0658 of 2020 has been filed against four accused including present applicants under Section 471, 468, 467, 420 and 419 IPC with an allegation that Nirmal Kumar Pandey and Satish Kumar Pandey, who are co-owners of the land along with first informant/O.P. no.2 namely, Sanjay Kumar Pandey, have illegally executed an agreement to sale in favour of the present applicants. After due investigation, the I.O. submitted charge sheet dated 20.01.2021 only arraigning the present applicants under Section 504 and 506 IPC but other co-accused namely, Nirmal Kumar Pandey and Satish Kumar Pandey have not been arraigned in the charge sheet as an accused. It is submitted that the genesis of crime with respect to execution of forged sale deed has already been negated by the I.O. but just to create a false case, present applicants, who are vendees, have illegally been arraigned in the charge sheet.
Learned A.G.A. submits that it is a disputed question of fact with respect to conduct of the present applicants, who have been charge sheeted under Section 504 and 506 IPC and same can be effectively adjudicate upon after trial and at this stage their innocence cannot be ascertained, which requires evidence to proof.
Present matter involves disputed questions of fact regarding transfer of shares which pertains to civil dispute and has illegally been dragged into a criminal proceeding. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.
In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :-
?61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court.?
In a recent judgment passed on 15.04.2019 in Criminal Appeal No.675 of 2019 arising out of SLP (Crl.) No.1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.
The disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.
After hearing learned counsel for the parties and perusing the averments made in the present application, prayer for quashing the charge sheet dated 20.01.2021 and summoning order dated 17.02.2020 of the aforementioned case is refused.
However, it is provided that in case applicants move an appropriate application for discharge along with a copy of this order before the concerned Court below, which shall be considered and decided by the Court below as expeditiously as possible in accordance with law, without being prejudiced by the order passed by this Court.
If the concerned Court feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the Court below holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless, it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
With the aforesaid conspectus, this application is disposed of.
Order Date :- 13.7.2021
Manish Himwan
