Vishal Tyagi And Antoher vs State Of U.P. And Antoher
2024 Latest Caselaw 17182 ALL

Allahabad High Court

Vishal Tyagi And Antoher vs State Of U.P. And Antoher on 15 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:87244
 
Judgment Reserved on 08-05-2024
 
Judgment Delivered on 15-05-2024
 
Court No. - 91
 
Case :- APPLICATION U/S 482 No. - 32668 of 2023
 
Applicant :- Vishal Tyagi And Antoher
 
Opposite Party :- State Of U.P. And Antoher
 
Counsel for Applicant :- Ankur Tyagi,Sushil Dubey
 
Counsel for Opposite Party :- G.A.,Sunder Singh,Sunil Singh
 

 
Hon'ble Prashant Kumar,J.
 

1. Heard Sri Ankur Tyagi, learned counsel appearing for the applicants, Sri Sunder Singh, learned counsel for the opposite party no.2, Sri S.K. Chandraul, learned A.G.A. for the State and perused the record.

2. The instant application has been filed seeking quashing of the summoning order dated 03-08-2023 in Misc. Case No. 7182 of 2023 (State Vs. Bharat Tyagi and others) arising out of crime no. 1117 of 2020, under Sections 328, 386, 376D, 394, 307, 506, 34 IPC against applicant no.1 and under Sections 328, 386, 394, 307, 506, 34 IPC against applicant no.2, P.S. Kotwali Dehat, district Bulandshahr.

3. Learned counsel for the applicants submits that in the instant case the opposite party no.2 lodged an F.I.R. 11-12-2020 alleging therein that an incident took place a year and half back wherein the applicant no.2, who happens to be wife of applicant no.1 had given some intoxicant in a cold drink and thereafter made obscene video and photographs, which resulted in blackmailing of the complainant. It was further alleged that Bharat Tyagi along with the applicant no.1 Vishal Tyagi, who happens to be brother of Bharat Tyagi and the opposite party no.2 went to place where Bharat Tyagi (now deceased) called her. Bharat Tyagi and one unknown person met her, snatched her chain and Rs. 2 lacs and they also attempted to murder her by strangulating her and Vishal assaulted her by a rod, upon which she became unconscious and it was only after gaining consciousness, she called her parents. The injuries were examined on 05-11-2020.

4. After investigation was completed, the Investigating Officer filed final report on 25-05-2021 in which it was clearly stated that on the date and time of the incident, the applicant no.1 was in his office and not at the place of occurrence. Further, Call Detail Report shows that the applicants were not present on the alleged spot of incident. Thereafter a protest petition was filed after lapse of six months wherein the trial court rejected the final report and directed for further investigation.

5. A further investigation was conducted and once again no evidence was found against the applicants and a second final report was filed on 05-04-2023. In this final report again it was confirmed from the Call Detail Record and the other evidences that the applicants were not present at the place of the incident and further it was revealed in the final report that Bharat Tygai (the main accused) had passed away by committing suicide on 11-01-2021, in which a criminal case was registered against the opposite party no.2 for abetment of suicide under Section 306 IPC.

6. Thereafter the opposite party no.2 again filed a second protest petition after lapse of three months, which was verbatim to the first protest petition. The trial court vide order dated 30-08-2023 rejected the final report and summon the applicant no.1 under Sections 328, 386, 376D, 394, 307, 506, 34 IPC and applicant no.2 under Sections 328, 386, 394, 307, 506, 34 IPC to face the trial.

7. By means of the instant application, the applicants have challenged the summoning order.

8. Learned counsel for the applicants submits that the F.I.R. is highly belated as it has been lodged after a delay of one and half year and the F.I.R. clearly shows that she herself have gone to meet Bharat Tyagi on several dates at different places (Hotels). Further submission is that on the date of the incident i.e. 05-11-2020 the applicant no.1 Vishal Tyagi was on duty at his office, and I.O. has taken the attendance register and made a part of case diary. It is further submitted by the learned counsel for the applicants though eight injuries have been shown but as per the statement of Doctor all the injuries were simple in nature and were not dangerous to life, hence, no offence under Section 307 IPC can be made out.

9. Learned counsel for the applicant further submits that the summoning order is incorrect for the simple reason that as per the provisions of Section 190(1)(b) of Cr.P.C. the trial court should not have taken cognizance or issued summons, they could have accepted the final report or rejected it and could have asked the I.O. to re-investigate the matter.

10. It is also submitted by the learned counsel for the applicant that from perusal of the entire evidence on record, no prima facie case under Sections 328, 386, 376D, 394, 307, 506 IPC is made out against the applicants.

11. Per contra, Sri Sunder Singh, learned counsel for the opposite party no.2 submits that, there are specific allegations against the applicants and there are as many as eight injuries and the summoning order is passed on the basis of the police report and there is sufficient evidence against the applicants. Further from perusal of the F.I.R. it cannot be said that no prima facie case is made out against the applicants. It is further submitted that the trial court has rightly summoned the applicant and no interference is required by this court. To buttress his arguments, learned counsel for the opposite party no.2 has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Zunaid Vs. State of U.P. and Others passed in Criminal Appeal Nos. 2628-2629 of 2023 decided on 29-08-2023, wherein it has been held that:-

"......9. The magistrate can ignore the conclusion arrived at by the investigating officer arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190 (1)(a) though it is open to him to act under Section 200 or Section 202 also."

12. Per contra, learned A.G.A. has vehemently opposed the application and contended that from bare perusal of the F.I.R, it cannot be said that no prima facie case is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not. It is further submitted that the Court below has rightly summoned the applicant and no interference is required by this Court in the instant application, as well as the ongoing proceedings.

13. Heard counsel for the parties and perused the record.

14. 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.

15. 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."

16. 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.

17. 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. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.

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

Order Date :- 15.5.2024/pks