Khursheed Ahmad Khan vs State Of U.P. And Another
2023 Latest Caselaw 5185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 69
 

 
Case :- APPLICATION U/S 482 No. - 3386 of 2023
 

 
Applicant :- Khursheed Ahmad Khan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Intekhab Alam Khan,Indu Shekhar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

List revised.

Heard Sri Intekhab Alam Khan, learned counsel for the applicant and Ms. Arti Agarwal, learned counsel for the State and perused the record.

This application under Section 482 Cr.P.C. has been filed by the applicant Khursheed Ahmad Khan with the prayer to quash the entire proceeding arise out of charge sheet dated 23.04.2022 (State Vs. Khursheed and others) in Case Crime No. 737 of 2020, under Sections 419, 420, 323, 504, 467, 468, 384, 506, 471 IPC, Police Station Cantt, District Varanasi, pending in the court of learned Chief Judicial Magistrate, Varanasi as well as summoning order dated 16.08.2022 and with a further prayer to stay the further proceedings of the aforesaid case, during the pendency of the present application.

Learned counsel for the applicant argued that the applicant has been falsely implicated in the present. It is argued that the allegations against the applicant in the First Information Report are to the effect that the applicant is in unlawful possession of his property since long. It is argued that the other allegations are against co-accused Aiyaz Khan, Dilshad Ahmad and Waseem which is to the effect that they have obtained firearm licenses by giving wrong addresses. It is argued that even the order summoning the applicant which is dated 16.08.2022 is a non speaking order and the trial court has passed a cryptic order by summoning the applicant. Learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation : (2015) 4 SCC 609 and while placing para 47 it is argued that the Apex Court has held that the words sufficient grounds for proceeding appearing in Section 204 Cr.P.C. suggest that the trial court has to take cognizance only if there is sufficient ground for proceeding and the trial court was expected to pass a detailed order for summoning but the same has not been done. It is argued that as such the proceedings as initiated against the applicant are clearly abuse of process of law.

Per contra, learned counsel for the State opposed the prayer for quashing. In so far as the applicant is concerned, he is named in the First Information Report and there are allegations against him. After thorough investigation, charge sheet has been submitted against the applicant after which the trial court has perused the documents and then summoned the applicant and other co-accused persons. It is argued that the allegations against the applicant are serious in nature along with co-accused persons who are history sheeters and are even having their gangs in the State and also are indulged in various offences. It is argued that even during investigation, the allegations against the applicant, have surfaced after which charge sheet has been submitted.

After having heard learned counsel for the parties and perusing the documents, it is apparent that the applicant is named in the First Information Report and there are allegations against him. The investigation has concluded by submitting a charge sheet against the applicant on which the trial court has taken cognizance and summoned him. The trial court has ordered taking cognizance and summoning on 16.08.2022 and has stated that the case diary has been perused has then taken cognizance and has summoned the applicant and other co-accused persons. In so far as the passing of the summoning order in detail is concerned, it is trite law that the trial court is only expected to apply its mind and pass an order to reflect that the trial court has applied its mind and perused the documents. In the case of Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 13 it has been held by the Apex Court that the trial court is not expected to pass a detailed order while summoning.

Further, In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147, Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44, Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424 it has been held that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case.

In the cases of Bhushan Kumar Vs. State of NCT of Delhi : (2012) 2 SCC 424, Nupur Talwar Vs. CBI : (2012) 11 SCC 465, Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons.

Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of State of Haryana and Others Vs. Bhajan Lal and Others : (1992) Suppl (1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.

Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.

Looking to the facts of the case, the prima facie allegation against the applicant and the law as stated above, no case for interference is made out. The present application under Section 482 Cr.P.C. is thus dismissed.

Order Date :- 16.2.2023

M. ARIF

(Samit Gopal, J.)