Allahabad High Court
Meraj And Another vs State Of U.P And Another on 27 January, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 66
Case :- APPLICATION U/S 482 No. - 37902 of 2022
Applicant :- Meraj And Another
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Pankaj Kumar Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard, Mr. Vivek Kumar Yadav, the learned counsel for applicants and the learned A.G.A. for State.
Perused the record.
Challenge in this application under Section 482 Cr.P.C. is to the Summoning Order dated 22.06.2022 passed by Judicial Magistrate, Kushinagar at Padrauna in Case No. 177 of 2017 (State Vs. Abbas and Others) under Sections 498A, 323, 504 IPC and 3/4 Dowry Prohibition Act, Police Station-Mahila Thana, District Kushinagar arising out of Case Crime No. 16 of 2015, under Sections 498A, 323, 504 IPC and 3/4 Dowry Prohibition Act, Police Station-Mahila Thana, District Kushinagar.
At the very outset, the learned A.G.A. has raised a preliminary objection by submitting that applicant earlier approached this Court by means of Application U/s 482 Cr.P.C. No. 7016 of 2017 (Abbas and 4 Others Vs. State of U.P. and Another) wherein this Court pass an interim order dated 03.03.2017. For ready reference, the same is reproduced hereinunder:-
"Heard learned counsel for the applicants and learned A.G.A. for the State.
This petition under Section 482, Cr.P.C. has been filed for quashing the charge sheet dated 05.11.2015 as well as cognizance taking order dated 01.12.2016 passed by learned Judicial Magistrate Kushi Nagar at Padrauna in Criminal Case No. 177 of 2017 arising out of Case Crime No. 0016 of 2015 under Sections 498A, 323, 504 I.P.C., and Section 3/4 of Dowry Prohibition Act, Police Station Mahila Thana, District Kushi Nagar.
It is contended by learned counsel for the applicants that the husband as well as entire family members of the husband have been falsely implicated in the present case by the opposite party no.2. Learned counsel further contends that the applicant nos. 3 and 5 lives separately from the husband and they have no concern with the opposite party no.2 and her husband they have also been implicated falsely on the general allegations, which is against the well settled principles of law as laid down by Hon'ble Apex Court reported in 2012 (10) SCC 741 in the matter of Geeta Mehrotra and another Vs. State of Uttar Pradesh.
So far as the applicant nos.1,2 and 4 namely, Abbas, Shakina and Seraj are concerned following orders is being passed:-
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 applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred 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. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant have got a right of discharge under Section 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the proceedings is refused.
However, it is provided that if the applicant nos. 1, 2 and 4 appears and surrenders before the court below within 30 days from today and applies for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed off so far as applicant nos. 1, 2 and 4 are concerned.
So far as the applicant nos. 3 and 5 are concerned the following orders is being passed:-
Issue notice to the opposite party no.2 returnable within four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks time to file counter affidavit. The opposite party no. 2 may also file counter affidavit within the said period. As prayed by the learned counsel for the applicants two week thereafter is granted for filing rejoinder affidavit.
List after expiry of the aforesaid period before appropriate Court.
Till the next date of listing, no coercive action shall be taken against the applicant nos.3 and 5 in the aforesaid case.
Order Date :- 3.3.2017"
Subsequently, aforementioned application was dismissed for want of prosecution vide order dated 25.04.2019, which reads as under:-
"List revised. None appeared on either side. Learned A.G.A. is present.
The application is accordingly, dismissed for want of prosecution.
Interim order, if any, stands vacated.
Let a copy of this order be communicated to the court concerned.
Order Date :- 25.4.2019"
Applicants have already filed a recall-restoration application in above-mentioned Application U/s 482 Cr.P.C. seeking recall of order dated 25.04.2019. As such, present application is not maintainable.
When confronted with above, the learned counsel for applicants could not overcome the same.
In view of above, the present application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 27.1.2023
Vinay
