Allahabad High Court
Udaybhan Chaudhary vs State Of U.P. And Another on 25 April, 2023
Bench: Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- APPLICATION U/S 482 No. - 4083 of 2023
Applicant :- Udaybhan Chaudhary
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shrawan Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Shiv Shanker Prasad,J.
This application under Section 482 CrPC has been filed by the applicant with the prayer to quash the summoning order dated 26.08.2022 as well as entire proceedings of Complaint Case No. 17632 of 2022 (Smt. Shiv Kumari Vs. Lal Ji and others), under Sections 406, 420 I.P.C., Police Station Munderwa, District Basti
On the request of learned counsel for the applicant Court proceeded to hear the matter. The case is being decided finally without issuing notice to the opposite party no.2. If opposite party no.2 feels aggrieved with this order, it will be open to him to file recall application.
Heard learned counsel for the applicant as well as the learned AGA and perused the record.
It was submitted by the learned counsel for the applicant that offence under Sections 420 and 406 IPC are not attracted in the present matter. Order taking cognizance in the matter is illegal and without application of judicial mind.
Brief facts of the case are that opposite party no.2 has opened a hotel in Munderwa town, where the applicant used to come and sit. The opposite party no.2 has asked the applicant for labour and labourers to get her old house built, on which he said that he will built her home. On the very next day, he negotiated with the alleged contractor accused Lalji and got it fixed for eight lakh rupees. At the behest of accused Lalji and Udaybhan, the complainant gave eight lakh rupees. Three to four days after receiving the money, Lalji started the construction by demolishing 2/3 part of the house. After erecting only 6 pillars, he went away telling that there is some work at home. When the contractor did not come to work for several days, the complainant asked the accused to return her money, the applicant, knowing her to be illiterate, has given three checks of Rs 1.5 lakh, 2 lakh and 4 lakh, respectively. On the next day, Lal Ji and the applicant came to her house and took back all the three checks saying that the cheques are wrongly crossed and they will give the correct check later, then get the money paid. In this regard, the applicant filed an application at the police station. A compromise has taken place in front of the witnesses at the police station and it was settled that and after deducting one lakh rupees for expenses, they will give seven lakh rupees within three months, yet these people have not given any money to the complainant. In this regard, the accused, being of one opinion, hurled abuses at the complainant and threatened to kill her.
Learned counsel for the applicant invited the attention of the Court to the summoning order dated 26.08.2022. He submits that the order impugned in the present application is wholly arbitrary and therefore liable to be set aside by this Court. Elaborating his submission, learned counsel for the applicant submits that the Court below has simply recorded a conclusion that on the basis of the complaint, the statement of the complainant and her witnesses, prima facie an offence under sections 406, 420 IPC appears to have been committed. The said conclusion recorded by the Court below is not preceded by a discussion of the allegations made in the complaint or the statement of the complainant and his witnesses as recorded under sections 200 and 202 Cr. P. C. He, therefore, submits that in absence of any finding recorded by the Court below, on the basis of the averments made in the complaint, the statement of the complainant and that of the witnesses, no prima facie satisfaction was recorded by the Court below for summoning the applicants under sections 406, 420 IPC.
In support of the aforesaid submission, reliance is placed upon the judgement of this Court in the case of K.L. Agarwal Vs. State of U.P. and another, ADJ 2016 11 808 and in the case of Hasmukhlal D. Vora & another Vs. The State of Tamil Nadu, 2023 (1) R.C.R. (Criminal) 624.
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 applicants at this stage. All the submissions made at the bar, relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. 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.
In the latest judgment of the Hon'ble Supreme Court in the case of State of U.P. Vs. Akhil Sharda & Others reported in 2022 SCC OnLine SC 820 has held that while deciding the application under Section 482 Cr.P.C., the High Court has conducted mini trial which is not permissible at that stage. The relevant portion whereof reads as follows:
"Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C.. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered.
....
Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C."
The prayer for quashing the aforesaid charge-sheet, summoning order as well as entire proceeding of the aforesaid case is refused.
However, in view of the entirety of facts and circumstances of the case, it is directed that the applicant shall surrender before the concerned court below within six weeks from today and in case apply for bail, the bail application of the applicant shall be disposed of expeditiously by the courts below in accordance with law and keeping in view the guidelines as laid down by the Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and Another, reported in (2021) 10 SCC 773.
For the period of six weeks from today or till the time of surrender of the applicant before the concerned court below, whichever is earlier, he shall not be arrested in the above case.
With the above observations and directions, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 25.4.2023
Abhishek Singh
