Allahabad High Court
Brijesh Bairagi And 6 Others vs State Of U.P. And Another on 27 January, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- APPLICATION U/S 482 No. - 35857 of 2022
Applicant :- Brijesh Bairagi And 6 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohd. Afzal
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
Present application has been filed by the applicants with the prayer to quash the charge sheet dated 14.08.2021 as well as entire proceeding of Case No. 7951 of 2022 (State Vs. Gulveer and others) arising out of Case Crime No.13 of 2021, under Sections 188 and 447 I.P.C., Police Station- Kasna, District Greater Noida, Commissionerate (Gautam Budh Nagar), pending in the Court of Additional Chief Judicial Magistrate-III, Gautam Budh Nagar.
It is submitted by learned counsel for the applicants that cognizance taken in the matter for the offence under Section 447, 188 IPC is illegal and without application of judicial mind. Mandatory provisions provided under U.P. Amendment for the offence under Section 441 IPC have not been followed before lodging the F.I.R. for the aforesaid offence. Entire story narrated in the F.I.R. is false. No prima facie case is made out against the applicant. Referring to aforesaid facts it is submitted that continuation of proceeding of the aforesaid case against the applicants is nothing but an abuse of process of law.
Per contra, learned counsel appearing for the State argued that the perusal of the F.I.R. goes to show that a cognizable offence is made out. In this case the F.I.R. was also lodged and after investigation charge sheet under Section 188, 447 IPC has been submitted and, therefore, it cannot be said that no offence is made out. In the last, it is argued that the present application is devoid of merit and deserves to be dismissed.
After having heard learned counsel for the parties and perusing the records, it is apparent that the impugned F.I.R. discloses a cognizable offence. There is an allegation for offence under Section 188 I.P.C. also, which is a cognizable offence. The grounds as raised in the present application are disputed questions of facts, which cannot be looked into in the present petition.
The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment.
From the perusal of 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. All the submissions made at the bar relates to the disputed question 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. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be, before the court below and he is free to take all the submissions in the said discharge application before the trial court.
The prayer for quashing the proceedings of case as well as charge sheet is refused.
At this stage, learned counsel for the applicants submitted that directions may be given to the court below to consider the bail application of the applicants in view of the judgment in the case Satendra Kumar Antil vs. Central Bureau of Investigation and another, 2021 SCC Online SC 922.
In the case of Satendra Kumar Antil (supra), the Hon'ble Supreme Court laid down the guidelines for deciding of the bail application. For that purpose, the cases have been divided under four categories. The Hon'ble Supreme Court has observed that the trial courts and the High Courts will keep in mind the aforesaid guidelines, while considering the bail application. This Court has no doubt, that as and when, the applicants approach the trial court for bail, the trial court shall definitely follow the directions given in the case of Satendra Kumar Antil (supra).
As such application has no force and is accordingly dismissed.
Order Date :- 27.1.2023
Krishna*
