Allahabad High Court
Rakesh Singh Chauhan And Another vs State Of U.P. Thru. Prin. Secy. And ... on 9 May, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- APPLICATION U/S 482 No. - 2461 of 2022
Applicant :- Rakesh Singh Chauhan And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. And Another
Counsel for Applicant :- Vivek Kumar Rai,Ajai Kumar,Shakti Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for petitioner, learned A.G.A. for the State and perused the material available on record.
By means of this petition under Section 482 Cr.P.C. the petitioner has prayed to quash the summoning order dated 22.12.2021 and proceedings of Special Sessions Trial No. 1444 of 2021 arising out of Case Crime No. 1088 of 2020, under Sections 2 (b) (i) and Section 3 of the U.P. Gangsters and Anti Social Activities Act, Police Station- Kotwali Sadar District - Kheri.
Learned counsel for petitioner has submitted that the petitioner the in the gang chart two cases have been shown against the applicants bearing case crime no. 1071 of 2019 under Sections 147, 148, 384, 306 I.P.C. and 3 (2) V of the S.C./S.T. Act, P.S.-Kotwali Sadar, District- Kheri and case crime no. 1136 of 2019 under Sections 147, 504, 506, 341 I.P.C. and 3 (1) (r), (s) of the S.C./S.T. Act, P.S.-Kotwali Sadar, District- Kheri. The main contention of the learned counsel for the applicants is that in both the two cases the opposite party no. 2 is complainant. In support of his submission learned counsel for the applicants relied upon a judgment of this Court in the case of Mahendra Patel Vs. State of U.P. (Criminal Misc. Application No. 3737 of 2004) decided on 17.4.20006 in which it has been held that if the same complainant lodged two or more cases against the same accused persons then the proceedings under U.P. Gangsters Act is not made out against the accused persons. The whole prosecution is nothing but an abuse of process of law.
On the other hand, learned A.G.A. for the State has submitted that prima facie case is made out against the petitioner as the applicants intimidated the opposite party no. 2.
Before arguing the case on merits, learned counsel for the petitioner while pressing the present petition submits that the court below while summoning the petitioner has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the court below has not taken into consideration the material placed before the trial court along with charge sheet and, therefore, the trial court has materially erred in summoning the petitioner.
So far as quashing of charge sheet and entire proceedings is concerned, from the perusal of the 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 the petitioner. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. Considering the arguments of learned counsel for the parties and going through the record, it cannot be said that no offence is made out against applicant and all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C.
The prayer for quashing the proceedings and summoning order is refused.
So far as regard the cognizance and summoning order passed by the learned trial court concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and appellant failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
The disputed defence of the petitioner cannot be considered at this stage. In the absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, which is already refused. 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.
As requested, the petitioner is permitted to appear before the concerned court within fifteen days from today through counsel and move an application claiming discharge. The concerned court shall after hearing the counsel decide the application on merits, in accordance with law, within a period of two months from today, which shall not exceed.
No coercive measure shall be adopted against the petitioner for a period of two months from today or till the disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the 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 lower court even after hearing the counsel for accused 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 directions/observations, this petition under Section 482 Cr.P.C. is disposed of.
Order Date :- 9.5.2022
Anuj Singh
