Allahabad High Court
Shiv Kumar @ Tinka And 4 Others vs State Of U.P. And Another on 27 March, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- APPLICATION U/S 482 No. - 2267 of 2023
Applicant :- Shiv Kumar @ Tinka And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajesh Kumar,Mohit Singh,Syed Irfan Ali
Counsel for Opposite Party :- G.A.,Alok Kumar Yadav,Bed Kant Mishra
Hon'ble Shekhar Kumar Yadav,J.
Heard Mr V. P. Srivastava, learned senior counsel assisted by Mr Mohit Singh, learned counsel for the applicants, Mr Jai Singh, Advocate holding brief of Mr Alok Kumar Yadav, learned counsel for the opposite party no. 2, Mr R. P. Mishra, learned AGA for the State and perused the record.
By means of this application, applicants have prayed for quashing of the summoning order dated 17.12.2022 passed by Court of Special Judge (POCSO Act)/Addl. Sessions Judge, Firozabad as well as entire proceedings of Mis. Case (Final Report)/Protest Petition No. 1025 of 2022 (Satish Chandra Vs Shiv Kumar and others) arising out of Case Crime No. 308 of 2022, under Sections 363,366,376-D, 202 IPC and Section 5G/6 of POCSO Act, P.S. Shikohabad, District Firozabad.
Initially an FIR was lodged by opposite party no. 2 against the applicants in which after investigation final report was submitted by the Investigating officer, against which opposite party no. 2 filed protest petition, which was allowed by the court below and the applicants have been summoned under Sections 363,366,376-D, 202 IPC and Section 5G/6 of POCSO Act, P.S. Shikohabad, District Firozabad to face the trial vide order impugned in the instant application.
Summoning order has been challenged on the ground that police submitted final report where against protest petition was filed and the court below after considering the documents of investigation as also the documents placed before it along with protest petition, has rejected final report and proceeded matter as police case, hence it is illegal. In support of his arguments, he relied upon the case of M/s India Carat Pvt Ltd Vs State of Karnataka and another, (1989) 2 SCC 132 and H.S. Bains, Director, Small Saving cum Deputy Secretary Finance,Punjab, Chandigarh, (1980) 4 SCC 631.
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.
Learned A.G.A., on the contrary, submitted that impugned order is well in accordance with law and the same does not require any interference by this Court. It is further submitted that it is open to court below to accept or not, final report submitted by Police, and the court below can examine the matter himself. If it finds expedient on the basis of material available, can summon the accused directly. Therefore, it cannot be said that court below has not applied its mind or has committed any illegality. The court below has after recording his satisfaction allowed the protest petition and rejected the final report and have summoned the applicants. He has also contended that in view of the procedure prescribed under the POCSO Act, which being a special enactment, the procedure prescribed therein, would be required to be followed and in terms thereof the designated Special Court is fully empowered to summon upon receiving of the police report under section 33(1) of the POCSO Act.
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. The grounds taken in the application reveal that many of them relate to disputed question of fact. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put to an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner, but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in first information report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage. Factual submissions and defence as raised in the application can be more appropriately gone into by the trial court at the appropriate stage. The applicant has an alternative statutory remedy of moving discharge application at the appropriate stage.
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 M/s Neeharika Infrastructure PVT Ltd. Vs State of Maharashtra, AIR 2021 SC 1918, 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, lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, State of M.P. Vs Awadh Kishore Gupta and others [(2004) 1 SCC 691, and Dr. Monica Kumar and Another Vs State of UP and Others, (2008) 8 SCC 781. 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. or 245 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 the summoning order is refused.
The application has no force and is accordingly dismissed. However, in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, the same shall be considered and decided in view of the settled law laid down in Satender Kumar Antil Vs Central Bureau of Investigation and another (Special Leave to Appeal (Criminal) No. 5191 of 2021 decided on 7.10.2021.
Order Date :- 27.3.2023
RavindraKSingh
