Allahabad High Court
Ajay Pratap Singh And Another vs State Of U.P. And Another on 20 April, 2023
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- APPLICATION U/S 482 No. - 3095 of 2018
Applicant :- Ajay Pratap Singh And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Om Prakash Misra
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Shamim Ahmed,J.
Heard Sri Om Prakash Misra, the learned counsel for the applicants as well as Sri Diwaker Singh, the learned A.G.A. for the State-opposite party No. 1 and perused the record.
The instant application has been filed by the applicants-Ajay Pratap Singh and Rahul Singh for quashing of the cognizance order dated 06.12.2017 passed by the court of learned Chief Judicial Magistrate, Bahriach in Case No. 13393/2017:State Vs. Santosh Mishra and others as well as charge-sheet bearing Charge Sheet No. 319/2017 in Case Crime No. 2077 of 2017, under Sections 419, 420 I.P.C. and Section 66 of the Information Technology Act, Police Station Kotwali Dehat, District Bahraich.
Learned counsel for the applicants submits that the applicants are innocent and has been falsely implicated in the present case. They are not involved in the present case. The First Information Report was also lodged against unknown persons.
Learned counsel for the applicants further submits that on 08.10.2017 the police has arrested as many as eight persons including the present applicants on the pointing out of the complainant and thereafter the Investigating Officer prepared joint Fard of Baramadgi on 08.10.2017 regarding Case Crime No. 2150 of 2017 under Sections 419, 420 I.P.C. and Section 66 IT Act, Case Crime No. 2151 of 2017 under Sections 419, 420 I.P.C. and Section 66 IT Act, Case Crime No. 2153 of 2017 under Section 66 IT Act, including the present case i.e. Case Crime No. 2077 of 2017, under Sections 419, 420 I.P.C. and Section 66 of the Information Technology Act, Police Station Kotwali Dehat, District Bahraich.
Learned counsel for the applicant further submits that on the basis of joint Fard Baramadgi prepared by the Investigating Officer, the name of the applicants have been falsely implicated in the present case, whereas no such recovery was ever made. It is the money which was legally withdrawn from the bank by the applicant. He further submits that without considering the material available on record in a mechanical manner submitted the charge-sheet against the applicants and the learned Magistrate took cognizance in a routine manner, thus the entire exercise is nothing but an abuse of process of law. In support of his argument learned counsel for the applicant has placed reliance upon the judgment of a co-ordinate Bench of this Court passed in Application under Sections 482/378/407 No. 4302 of 2013: Shatrughan Khetan @ Shatrughan Kumar Agarwal Vs. The State of U.P. dated 30.09.2013.
Per contra, learned A.G.A. submits that the applicants were involved in the commission of the offence and recovery of amount was made and along with the applicants six other accused persons were arrested by the Investigating Agency on the pointing out of complainant, thus it appears that they are operating a gang involved in this type of crime. Some of the mobile phone, ATM Cards were also recovered from the possession of the applicants. He further submits that the Investigating Officer after investigating the matter properly submitted the charge-sheet. There is no illegality in the charge-sheet and the learned Magistrate after considering the entire evidence and the material available before him took cognizance as per the law and this is not the stage to consider all these factual aspect before this Court. In support of his arguments learned A.G.A. has placed reliance upon the judgment rendered by the Hon'ble Apex Court in the case R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.)283 and submits that the applicants could not point out any illegality or infirmity, whether the charge-sheet was filed by the Investigating Officer, who is not competent nor he discloses that the charge-sheet was filed in an arbitrary manner and with mala fide intention or it is an abuse of process of law, thus in view of the aforesaid judgments rendered by Hon'ble Apex Court, the applicants are not entitled to get any relief.
Learned A.G.A. further submits that the case of the applicant is totally distinguishable to the case cited by the learned counsel for the applicants and has no nexus at all to the present case. Each and every case has to be seen on it's own footing. The judgment cited by the learned counsel for the applicants is not applicable in the present case and the case of the applicants is covered by the judgment of the Apex Court as stated above.
After considering the arguments of learned counsel for the applicants as well as learned A.G.A. and after perusal of the record, this Court does not find any illegality and infirmity in the charge-sheet and cognizance order. Prima facie, offence against the applicants is made out.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not.
From the decisions the Apex Court laid down in cases of (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.)283, the court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the charge sheet/summoning order as prima facie commission of an offence is made out against the applicants. In the result, the prayer for quashing of the charge sheet/summoning order is refused. There is no merit in this application filed under Section 482 Cr.P.C. and is liable to be dismissed.
Accordingly, the instant application is dismissed.
Order Date :- 20.4.2023
Arvind
