Allahabad High Court
Ashish Kumar Dubey vs State Of U.P. And 3 Others on 6 September, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:175669
Court No. - 4
Case :- APPLICATION U/S 482 No. - 33227 of 2023
Applicant :- Ashish Kumar Dubey
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Aqueel Ahmad
Counsel for Opposite Party :- G.A.
Hon'ble Prakash Padia,J.
1. Heard learned counsel for the applicant and learned A.G.A for the State-respondents.
2. The applicant has preferred the present Application under Section 482 of Code of Criminal Procedure, 1973 to quash the impugned order dated 17.08.2023 as well as entire proceeding of Misc. Case No.298 of 2022 arising out of Complaint No.7737 of 2021 (Ashish Kumar Dubey vs. Virendra Kumar Upadhyay and others) under Section 340 Cr.P.C. Police Station Civil lines District- Prayagraj.
3. It is argued by learned counsel for the applicant that on 12.7.2021, opposite party nos. 2 to 4 have assaulted the applicant and his family members, for which a complaint being Complaint No. 7737 of 2021 was registered under Sections- 323, 504 452 IPC Police Station- Civil Lines, District Prayagraj. In the aforesaid complaint, summons were issued against the opposite party on 01.04.2022. It is further argued that after issuance of summons, the opposite party nos. 2 to 4 have moved bail applications before the court below. The same was allowed on 18.7.2022. It is next argued that when the applicant came to know about the fact that the opposite party has taken bail by using forged documents and Addhar Card, the applicant on 19.12.2022 has filed an application under Section 340 of Cr.P.C. against the opposite party in the Court of Judicial Magistrate-IV, Prayagraj. The same was registered as Misc. Case No.298 of 2022. It is also argued that vide impugned order dated 17.08.2023, the Judicial Magistrate-IV, Prayagraj was given the opportunity to the opposite party. The impugned order was passed by the court below without application of its judicial mind. The opportunity to oppose was given to the opposite party but there is no provision provided under Section 340 of Cr.P.C. to provide such participation at this stage. In support of his submission, learned counsel for the applicant has placed reliance upon the judgment of Hon'ble Apex Court in case of State of Punjab vs. Jasbir Singh, decided on 15.9.2022 in Criminal Appeal No.335 of 2020. In the aforesaid case, the following question taken into consideration:-
"(i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by the Court?"
4. With regard to the answer of the above, learned counsel for the applicant has brought the attention of this Court to some relevant paragraphs of the aforesaid case, which are quoted as under:-
"We have little doubt that there is no question of opportunity of hearing in a scenario of this nature and we say nothing else but that a law as enunciated by the Constitution Bench in Iqbal Singh Marwah's case (supra) is in line with what was observed in Pritish' case (supra).
Interestingly both the judgments in Pritish's case and the Constitution Bench judgment in Iqbal Singh Marwah's case (supra) have not been noted in order passed in Sharad Pawar's Case (supra). The answer thus to the first question raised would be in the negative."
5. From perusal of the impugned order dated 17.8.2023 it transpires that the opportunity to the opposite party was given by the court below. The order dated 17.8.2023 is reads as under:-
"Case called out. Complainant argued on 340 but opp. party given opportunity to oppose. Fix for 25/9/23."
6. This Court is prima facie opinion that the order dated 17.8.2023 passed by the court below is against the law laid down by Hon'ble the Apex Court, as stated above. Accordingly, the impugned order dated 17.8.2023 passed by the Judicial Magistrate-IV, Prayagraj in Misc. Case No. 298 of 2022 under Section 340 of Cr.P.C. is hereby set-aside.
7. The court below is directed to pass afresh order in accordance with law within a period of three weeks.
8. Registrar (Compliance) is directed to forward a copy of this order to before the Judicial Magistrate-IV, Prayagraj through District Judge, Prayagraj on or before 12.9.2023.
9. Learned counsel for the applicant is also permitted to place a copy of this order before the court below, within a week.
10. With the aforesaid, the present application is allowed.
Order Date :- 6.9.2023
S.K.
