Allahabad High Court
Chandra Shekhar And 4 Others vs State Of U.P. And Another on 2 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:80312
Court No. - 91
Case :- APPLICATION U/S 482 No. - 13606 of 2024
Applicant :- Chandra Shekhar And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rakesh Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Prashant Kumar,J.
1. Heard Sri Rakesh Dubey, learned counsel for the applicants, Sri S. K. Chandraul, learned Additional Government Advocate for the State-O.P. no.1 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing the summoning order dated 17.03.2023 passed by ACMM-III, Kanpur Nagar in Criminal Case No. 61036 of 2023 (State Vs. Vishnu Babu Diwakar and others) based upon Charge Sheet No. 136-A of 2022 dated 15.09.2022 arising out of Case Crime No. 271 of 2021, under Sections 147, 323, 504, 506 I.P.C. registered at Police Station Sachendi, District Kanpur Nagar, pending in the court of ACMM-II, Kanpur Nagar.
3. Learned counsel for the applicants submits that an F.I.R. was lodged on 26.07.2021 alleging that co-accused Vishnu Babu Diwakar had taken money of Rs. 50 lacs from the informant in the name of Ram Mandir, which was utilized in the construction of three floor house and purchased a costly vehicle/car and bullet motorcycle. When the informant asked to return the said money, the family members of Vishnu Babu Diwakar and other persons got into a scuffle with the applicants. After investigation, charge sheet was submitted and name of the applicants had cropped up and the learned Magistrate has taken cognizance and passed summoning order on 17.03.2023 under Sections 147, 323, 504, 506 I.P.C. Learned counsel further submits that the applicants were not named in the F.I.R. The applicants are distant relatives of main accused Vishnu Babu Diwakar. They have been falsely implicated only on the basis of statement of the informant. The co-accused Pankaj has challenged the F.I.R. before this Court and this Court has granted interim relief in his favour. No offence is made out against the applicants.
4. Per contra, learned A.G.A. has vehemently opposed the application and contended that the interim order granted in favour of co-accused Pankaj does not help in any manner to the other accused persons as they were not party in that case. After investigation, charge sheet has been submitted against the applicants and summons were issued against them.
5. 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 applicant. 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.
6. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-
"(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. Further, the Hon'ble Supreme Court in the 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 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 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.
8. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant(s). It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
9. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.
Order Date :- 2.5.2024
Rmk.
