Abdul Ali And Others vs State Of U.P. And Another
2023 Latest Caselaw 22319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:167193
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 13056 of 2010
 

 
Applicant :- Abdul Ali And Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pradeep Chandra,Asha Parihar,Pratik Chandra
 
Counsel for Opposite Party :- Govt. Advocate,Rajesh Ji Verma
 

 
Hon'ble Dinesh Pathak,J.

In Ref:- (Crl. Misc. Recall/Restoration Application No.1 of 2021)

1. Instant recall application has been filed along with the delay condonation application on 20.10.2021 against the order dated 11.2.2020 by which application u/s 482 Cr.P.C. has been ordered to be dismissed having become infructuous by efflux of time.

2. Learned counsel for the applicants submits that the cause of action still exists, therefore, present application may be restored to its original number and same may be decided on merits.

3. Cause shown for the delay and non appearance of the learned counsel for the applicants on the date of hearing is sufficient and to the satisfaction of the Court.

4. Learned AGA has no objection in allowing the aforesaid application and hear the matter on merits.

5. In this conspectus, as above, delay condonation application as well as recall/restoration application are allowed. Delay in filing the restoration application is condoned.

6. Present application u/s 482 Cr.P.C. is restored to its original number.

(Order on Application u/s 482 Cr.P.C.)

1. Heard learned counsel for the applicants and learned AGA.

2. The present applicants have invoked the inherent power of this Court under Section 482 Cr.P.C., for quashing the complaint being Complaint Case No. 2 of 2008 (Azeem Bux Vs. Abdul Ali and others) as well as summoning order 24.2.2010 passed in Complaint Case No.2 of 2008 passed by Special Judge (DAA) Orai at Jalaun, under Sections 395, 397 and 342 I.P.C., Police Station Kasba Jalaun, District Jalaun, pending in the Court of Special Judge (DAA), Orai at Jalaun.

3. Opposite party No.2 has moved a complaint dated 15.12.2007 levelling allegations of wrongful confinement, docoity and robbery against the present applicants with an averments that the complainant is the tenant in the shop in question and the applicant No.1 is the owner of the shop. On 07.12.2007 present applicants came at the shop of the complainant and made him captive. They threatened him for life on the gunpoint. They have broken the lock of the shop and looted the material worth Rs.24,000/-. Learned Magistrate, after considering the statements under Section 200 and 202 Cr.P.C., has issued process against the present applicants under Sections 395, 397 and 342 I.P.C. vide order dated 24.2.2010.

4. It is submitted by learned counsel for the applicants that on the face of the application under Section 156(3) Cr.P.C. no case is made out against the present applicants. It is highly improbable that the heavy sewing machines and the other goods as mention in the complaint could be taken out from the shop of the present applicants. It is further submitted that false and malicious prosecution has been made against the present applicants just to exert pressure upon them so that they may come to the compromise in landlord-tenant dispute. It is further submitted that false and concocted story has been portrayed in the complaint which has illegally been relied upon by the learned Magistrate while issuing the process without properly examining its truthfulness. No proper inquiry has been conducted by the learned Magistrate to record his satisfaction with respect to the complicity of the present applicants in the commission of crime. It is further submitted that impugned order dated 24.2.2010 passed by learned Magistrate is illegal and unwarranted under the law, hence liable to be rejected.

5. Per contra, learned AGA has vehemently opposed the submissions as raised by learned counsel for the applicants and contended that learned Magistrate has rightly issued the process against the present applicants after considering the case of the complainant in detail and the statement made by complainant under Section 200 Cr.P.C. and the witnesses under Section 202 Cr.P.C. It is further contended that from the face of the record, prima facie, the complicity of the present applicants in the commission of crime cannot be rule out, therefore, they have rightly be indicted in the occurrence of the crime as mentioned in the complaint. It is further contended that, at this juncture, innocence of the present applicants cannot be inferred, which is matter of trial and learned trial court can adjudicated upon more appropriately with respect to the innocence of the present applicants after apprising the evidence on record. It is next contended that no legal ground is made out to warrant the indulgence of this Court to exercise the inherent jurisdiction under Section 482 Cr.P.C. to quash the criminal proceeding, therefore, instant application is liable to be dismissed being misconceived and devoid on merits.

6. Having considered the rival submissions advanced by learned counsel for the applicants as well as learned AGA and perusal of record, it reveals that learned Magistrate, by previous order dated 04.11.2008, has rejected the complaint moved on behalf of the complainant (opposite party No.2). Having been aggrieved, complainant has preferred a revision before this Court being registered as Crl. Revision No.415 of 2009. This Court has allowed the aforesaid revision and relegated the parties before learned Magistrate to get the complaint decided denovo. In pursuance of the order passed by this Court learned Magistrate has reconsidered the matter. On behalf of the complainant Mohammad Ismail (P.W.-1), Suresh Chand (P.W.-2), Mohammad Waseem Raza (P.W.-3) and Awdhesh Kumar Mishra (P.W.-4) were appeared as a witnesses and made their statements under Section 202 Cr.P.C. Learned Magistrate has examined the case of the complaint in the light of the statements made by the complainant and the witnesses and, accordingly, came to conclusion that, prima facie, case is made out against the present applicants and summoned them under Sections 395, 397 and 342 I.P.C. Statements made by witnesses under Section 202 Cr.P.C. are, prima facie, sufficient to corroborate the case of the complainant with respect to the complicity of the present applicants in commission of crime. There is no justification to re-examine the matter whereas ones the matter has already been remitted before the trial court for fresh consideration and the same has been decided in pursuance of the order passed by this Court. Innocence of the present applicant cannot be inferred at this stage. Learned Magistrate has examined the occurrence of offence on the basis of the averment made in the complaint and the corroborative evidence adduced by the complainant and the inquiry as conducted by him under Sections 202 Cr.P.C. Evidence adduced on behalf of the accused, at this stage, is not liable to be considered to examine the legality and validity of the summoning order. After going through the contents of the complaint, instant matter can not be treated to be a simple case of landlord-tenant dispute. Occurrence of offence on the date of incident, as averred in the complaint and corroborated by witness, has properly been examined by learned Magistrate.

7. In this conspectus, as above, I do not find any justifiable ground to interfere in the order impugned dated 24.2.2010 in exercise of inherent jurisdiction under Section 482 Cr.P.C. Neither there is any abuse of process of Court nor any sufficient ground exist to pass an order to secure the end of justice. There is nothing on record to demonstrate as to how the present applicants are prejudiced or, if is there any likelihood of causing miscarriage of justice to them, owing to the order under challenge.

8. Resultantly, instant application, being misconceived and devoid on merits, is dismissed with no order as to costs.

9. Before parting, learned counsel for the applicants submits that bail application if filed by the present applicants may be considered in the light of the dictum of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 Supreme Court Cases 773. In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences.

10. Considering the entire facts and circumstances of the case and the dictum of Hon'ble Supreme Court, I think it appropriate that in case, the present applicants appear/surrender before the concerned court below and move bail application within two weeks, the same shall be considered and decided in accordance with law, considering the judgment of Hon'ble Supreme Court, expeditiously as early as possible.

Order Date :- 18.8.2023

Md Faisal