Nischal Parashar And 4 Others vs State Of U.P. And Another
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Allahabad High Court

Nischal Parashar And 4 Others vs State Of U.P. And Another on 13 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:86082
 
Court No. - 91
 

 
Case :- APPLICATION U/S 482 No. - 11341 of 2023
 

 
Applicant :- Nischal Parashar And 4 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sanjay Kumar Mishra,Satya Prakash Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Prashant Kumar,J.
 

1. Heard Sri Satya Prakash Singh, learned counsel for the applicant, Sri Shashidhar Pandey, learned Additional Government Advocate for the State-O.P. no.1 as well as Sri Sanjay Kumar Mishra, learned counsel appearing for the opposite party no. 2 and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing of the entire proceedings of Criminal Complaint Case No. 2542 of 2019 (Ajay Gupta Vs. Nischal Parasar and others) under Section 352, 380, 323, 452 IPC, P.S. Sihanigate, District Ghaziabad as well as summoning order dated 24.01.2023 passed by Additional Chief Judicial Magistrate/Additional Civil Judge (S.D.), First, Ghaziabad, pending in the court of Additional Chief Judicial Magistrate/Additional Civil Judge (S.D.), First, Ghaziabad.

3. Learned counsel for the applicant submits that a complaint was filed on 26.08.2019 by the opposite party no.2. In the said complaint, it is alleged that opposite party no.2 is running a shop in the name of Laxmi Plywood Traders in a rented accommodation, r/o 12, Mukandnagar High Road, P.S. Sihanigate, Ghaziabad. There has been some dispute between the opposite party no.2 and the landlord (Rahul Mehta, who is opposite party no.6 in the complaint but here he is not a party), in which the opposite party no.2 had succeeded in the litigation. It is further alleged that applicant no.2-Tanu Parasar, who is the sister-in-law (Sali) of landlord-Rahul Mehta is time and again trying to implicate the opposite party no.2 in some false case. He further submits that on 04.06.2019 applicants along with others came to the shop of opposite party no.2 and threw red chili powder in the shop and started beating up the opposite party no.2 and further broke down the articles kept in the shop. The applicant no.1-Nischal Parasar had taken Rs.50,000/- from the cash box and the entire incident has been captured in the CCTV Camera. This incident was seen by various witnesses. The matter was reported to the police but since no action was taken, hence the opposite party no.2 has filed the instant complaint case. After recording the statements of the complainant and of his witnesses under Sections 200 and 202 Cr.P.C, the learned Magistrate, vide order dated 24.01.2023 summoned the applicants under Section 352, 380, 323, 452 IPC to face trial.

4. Sri Satya Prakash Singh, learned counsel for the applicants submits that as a counterblast the instant complaint has been filed against the applicants and the whole case of prosecution is malicious.

5. Per contra, Sri Sanjay Kumar Mishra, learned counsel for O.P. no.2 has vehemently opposed the application and contended that it is not a case of malicious prosecution but actually the incident happened on the date and time as mentioned in the complaint, which was recorded in the CCTV Camera and it would be produced as and when required. He further submits that after recording the statements of complainant and of his witnesses under Sections 200 and 202 Cr.P.C., the applicants have been summoned. The order of summoning has been passed after perusing the evidence available on record.

6. Sri Neelkanth Upadhyay, learned AGA appearing for the State-opposite party no. 1 opposed the contentions raised on behalf of the applicants and submits that on plain reading of the complaint a prima facie case is made out against the applicants which stands corroborated from the CCTV Footage recorded at the time of incident.

7. 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.

8. 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."

9. 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.

10. 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.

11. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.

Order Date :- 13.5.2024

Prajapati