Allahabad High Court
Pappan@ Sanjay vs State Of U.P. And Another on 2 August, 2023
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:154170
Court No. - 87
Case :- APPLICATION U/S 482 No. - 18124 of 2023
Applicant :- Pappan@ Sanjay
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Raj Narayan Tiwari
Counsel for Opposite Party :- G.A.,Saumitra Dwivedi
Hon'ble Neeraj Tiwari,J.
1. Heard Sri Prabha Shanker Pandey along with Sri Raj Narayan Tiwari, learned counsel for the applicant, learned AGA for State and Sri Saumitra Dwivedi, learned counsel for opposite party no. 2.
2. The present 482 Cr.P.2C. application has been filed to quash the charge sheet dated 18.1.2023 and cognizance order dated 14.2023 as well as the entire proceedings of Case No. 2040 of 2023 (State Vs. Pappan @ Sanjay and others), arising out of Case Crime No. 0690/2022, under Sections- 147, 148, 149, 302, 307, 120B, 34 I.P.C., Police Station- Hapurnagar, District- Hapur, pending in the court of C.J.M., Hapur.
3. Learned counsel for the applicant submitted that he has filed supplementary affidavit in Registry on 31.7.2023, which is not on record.
4. Learned counsel for the applicant submitted that version of FIR is ex facie false and further on the date of incident, applicant was not present at there. In the charge sheet, he was given the charge of conspiracy, which is malafide with ulterior motive. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Shambhu Kharwar Vs. State of U.P. and another; Criminal Appeal No. 1231 of 2022 decided on 12.8.2022.
5. Per contra, Sri Saumitra Dwivedi, learned counsel for opposite party no. 2 submitted that these are disputed questions of fact and cannot be adjudicated here. He further submitted that so far as plea of alibi is concerned, it can be raised before the Trial Court. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Subed Ali and others Vs. State of Assam; 2020 LawSuit (SC) 598. He next submitted that earlier, applicant has filed Criminal Misc. Writ Petition No. 11912 of 2022, but later on, same was withdrawn with liberty to apply for bail. Thereafter, he has filed Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 13157 of 2022, which was also rejected by this Court vide order dated 12.4.2023. He next submitted that till date, he has not surrendered before the Court and filed the present application, which is misused of process of law. He has also placed reliance upon the judgment of Apex Court in the matter of Lavesh Vs. State (NCT OF DELHI); (2012) 2 WLC 681 in which accused was absconder in proceeding and Court is of the view that he is not entitled for anticipatory bail.
6. I have considered the rival submissions made by learned counsel for the parties and perused the record. In the present matter, disputed questions of fact are involved, therefore, that cannot be seen before this Court U/S 482 Cr.P.C. Further, conduct of applicant is also does not appear proper as he has filed Criminal Misc. Writ Petition No. 11912 of 2022 challenging the FIR and withdrawn the same with liberty to apply for bail. Thereafter, he approached to file Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 13157 of 2022, which was rejected vide order dated 12.4.2023. Now, it is required on the part of applicant to surrender before the Court and obtain bail, but instead of that, he come before this Court after completion of proceeding of 82 & 83 Cr.P.C. This Court is of the firm view that as on date, in the present matter, disputed questions of fact are involved, therefore, argument of counsel for the applicant that FIR is ex facie false, cannot be accepted. So far as other questions i.e. plea of alibi, ulterior motive and malicious intention are concerned, it is question of facts that can very well be verified by the Trial Court in light of judgement of Apex Court in the matter of Subed Ali (supra), therefore, this Court is not inclined to interfere with the matter.
7. 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. The disputed defence of the accused cannot be considered at this stage.
8. So far as any interim relief is concerned, in light of judgment of Apex Court in the matter of Lavesh (supra), considering the fact that applicant is an absconder, no interim relief can be granted to him for surrendering before the Court and obtain bail.
9. Accordingly, present application is dismissed. No order as to costs.
10. However, it is open the applicant to surrender before the Court and obtain any interim relief as permitted in accordance with law.
Order Date :- 2.8.2023/Arvind
