Allahabad High Court
Pradeep Kumar Agarwal And Another vs State Of U.P. And Another on 11 August, 2022
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- APPLICATION U/S 482 No. - 10820 of 2022
Applicant :- Pradeep Kumar Agarwal And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Abhinav Gaur,Sr. Advocate,Vibhu Rai
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Mr. Ankit Shukla, Advocate holding brief of Mr. Vibhu Rai, the learned counsel for applicants and the learned A.G.A. for the State.
Perused the record.
Challenge in this application under Section 482 Cr.P.C. is to the order dated 10th December, 2021 passed by the Special Judge (SC/ST Act), Aligarh in Sessions Trial No. 270 of 2019 (State of U.P. Vs. Pradeep Kumar Agrawal & Another) arising out of Case Crime No. 618 of 2018, under Sections 323, 406, 420, 504, 506 I.P.C. and Sections 3 (2) (v.a.) S.C./S.T. (Prevention of Atrocities) Act, 1989, Police Station-Sasni Gate, District Aligarh, whereby discharge claimed by the applicants has been refused. The applicants have also challenged the summoning order dated 2nd July, 2019 passed by court below as well as the entire proceedings of above mentioned criminal case, now pending in the court of Special Judge (SC/ST Act), Aligarh.
Record shows that applicants earlier approached this Court by means of Application U/S 482 No. 39619 of 2019 (Pradeep Kumar Agarwal & Another Vs. State of U.P. & Others), which was disposed of finally vide order dated 5th November, 2019. For ready reference, the order dated 5th November, 2019 is reproduced hereunder:-
"Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C., has been filed for quashing the order dated 2.7.2019 as well as the entire proceedings of Case No. 270 of 2019, arising out of case crime no. 618 of 2018, under Sections 323, 406, 420, 504, 506 IPC and 3(2) 5A SC/ST (Prevention of Atrocities) Act, 1989, Police Station Sasni Gate, District Aligarh, pending before the court of ADJ IInd, Aligarh.
The contention of the counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
The disputed defence of the accused cannot be considered at this stage. 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 he is free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the proceedings of the aforementioned case is refused.
However, it is provided that in case, the applicants move an appropriate application for discharge through counsel before the concerned Court below within a period of one month from today, the same shall be considered and disposed off as expeditiously as possible in accordance with law, by the concerned Court below preferably within a period of four months, thereafter.
For a period of five months from today or till the disposal of the discharge application whichever, is earlier, no coercive action shall be taken against the applicants in the aforesaid case.
In case no such application is filed within a period of one month from today, as prescribed above, the present order shall stand automatically vacated.
With the aforesaid directions, this application is finally disposed off. "
Subsequent to the above order dated 5th November, 2019, the applicants appeared before the court below and filed discharge application on 3rd December, 2019. The said discharge application came to be rejected by court below vide order dated 10th December, 2021, which is under challenge in the present application.
Present application came up for admission on 27th May, 2022 and this Court passed the following order:
"Notice on behalf of opposite party no. 1 has been accepted by learned AGA.
Issue notice to opposite party no.2, returnable at an early date.
Put up as fresh on 19.7.2022"
Office has submitted its report dated 18th July, 2022 stating therein that notice has been served personally upon opposite party no.2. However, inspite of the notice having been served upon opposite party no.2, no counter affidavit has been filed by opposite party no.2 nor any one appears on his behalf to oppose this application.
Challenging the order impugned dated 10th December, 2021, Mr. Trivedi, learned Senior Counsel appearing for the applicants submits that the order impugned is not only illegal but also arbitrary. According to Mr. Trivedi, court below, while passing the order impugned, has not adverted to the issues raised by the applicants by means of discharge application dated 3rd December, 2019, which was also supported by an affidavit. In support of the aforesaid submission, Mr. Trivedi, has invited the attention of the Court to page nos. 155 onwards of the present application, on the basis whereof, he submits that the court below has not adverted to the facts of the case, the grounds raised for discharge, the legality or otherwise of the discharge claimed by the applicants but has recorded a bald conclusion. Court below has just abraded the discharge application filed by the applicants. There is no discussion of the prosecution evidence collected either. As such, court blow has failed to exercise its jurisdiction vested in it with due diligence.
Per contra, the learned A.G.A. for the State has opposed this application. He submits that the court below has refused discharge claimed by the applicants on the ground that even in a case of strong suspicion, the trial can be maintained. He, therefore, submits that no indulgence be granted by this Court in favour of the applicants. The applicants will have ample opportunity to establish their innocence during the course of trial.
Having considered the submissions made by the learned Senior Counsel for the applicants, the learned A.G.A. for State and upon perusal of the records, this Court finds that court below has dealt with the discharge claimed by the applicants in a very wrong manner. In the order impugned the court below has only referred to the provisions of Sections 277 Cr.P.C. and the judgments of the Apex Court and making general observations, has refused discharge claimed by the applicants. While passing the order impugned, no conclusive finding has been recorded by the court below in light of the grounds urged by the applicants in their application dated 3rd December, 2019. No allegation has been made to consider the evidence that has been collected nor any specific finding has been recorded for refusing discharge. Mr. Trivedi, learned Senior Counsel appearing on behalf of the applicants is right in submitting that the court below has not passed a speaking and reasoned order, therefore, the order impugned is arbitrary.
In view of above, the present application succeeds and is allowed. Order impugned dated 10th December, 2021 is hereby quashed. The matter is remitted back to court below to pass a fresh order in the light of observations made herein-above, preferably within a period of two months from the date of production of a certified copy of this order.
It goes without saying that court below shall proceed against the applicants only after disposal of the discharge application filed by the applicant.
(Rajeev Misra, J.)
Order Date :- 11.8.2022
Sushil/-
