Allahabad High Court
Harish Kumar vs State Of U.P. And Another on 7 April, 2025
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:49307
Court No. - 52
Case :- APPLICATION U/S 528 BNSS No. - 4780 of 2025
Applicant :- Harish Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mohd. Arshad
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Sri Mohd. Arshad, learned counsel for the applicant, Sri P.K. Singh, learned Brief Holder for the State and perused the record.
2. The applicant has moved the instant application challenging the charge-sheet dated 08.01.2024, cognizance order dated 06.06.2024 in Case No. 713 of 2024, State v. Harish, arising out of Case Crime No. 210 of 2023, under Section 384 IPC, Police Station Chandaus, District Aligarh, pending in the court of Judicial Magistrate-II, Aligarh.
3. Brief facts of the case are that a first information report was lodged on 31.07.2023 at about 18:12 hours, under Section 384 IPC by O.P. No. 2 against the applicant and one unnamed friend, with the allegation that the applicant is inimical to opposite party no. 2. On 14.6.2023 he tweeted from mobile number 7520921261 making allegations that opposite party no. 2 - Virendra Singh along with Shyamveer Singh, Billu Pradhan, Yogesh Kumar, Omveer Sharma, Mukesh Sharma, Rakesh Singh and Kuldeep Singh are engaged in buying and selling females. Again on 15.06.2023 a whatsapp message was received on the mobile numbers of Mohit son of Rakesh, Sonu son of Virendra, Sanjay son of Jaydeesh, Naresh son of Rajveer Singh and other villagers and denizens from mobile no. 9412545695 that Virendra and others are doing illegal work under the protection of a BJP leader. When the O.P. No. 2 tried to find out about the aforesaid phone number, it was found to be the mobile number of the applicant Harish Kumar. The O.P. No. 2 contacted Harish Kumar and raised query as to why he was sending such messages and tarnishing the image of O.P. No. 2, whereupon the applicant apologised for the same and stated that he will not repeat it again. It has been further alleged that the applicant was behind bars in the months of April ? May for an offence of forging himself to be a CBI Inspector. 10-12 days prior to the date of lodging FIR, a phone call was made by the applicant from mobile no. 8006100282 to mobile no. 9536320640 demanding three lakh rupees for not sending messages and warned for tarnishing informant's reputation. The O.P. No. 2 feeling mentally tortured by the aforesaid conduct, lodged the present case, wherein after investigation a charge sheet has been submitted against the applicant and he has been summoned by the court concerned.
4. Learned counsel for the applicant submits that the present case has been lodged with false and frivolous allegations due to ulterior motive. There is unexplained delay in lodging the FIR. Mobile number 9412545695 is said to have been belonging to Ishtekhar and Dharmendra Kumar whose statements have been recorded. Ishtekhar has stated that aforesaid number was issued on his I.D. He has further stated that on 25.06.2022 when he was going from his home to Chandausi, the aforesaid mobile dropped on the way. He gave an information about the same to the police station, for which an FIR was lodged, however, being illiterate he did not get the number deactivated and also he did not have any information about the aforesaid number being used by some other person. Statement of Dharmendra has also been recorded who has stated that on 14.06.2022 a tweet was made through mobile no. 9412545695 and he re-tweeted the same, a screenshot of which was sent by him.
5. From the aforesaid statements, it is clear that the mobile number does not belong to the applicant, therefore, it cannot be said that the applicant is guilty for the aforesaid conduct. Even otherwise, it is presumed that Dharmendra had re-tweeted the message. There is no such evidence on record to show that the incident was done at the instance of the applicant, therefore, no offence under the relevant sections is made out. In the FIR itself it has been stated that the O.P. No. 2 was inimical to the applicant, therefore, the present case has been lodged with malicious intention.
6. Learned counsel for the State, on the other hand, submits that there is no illegality or infirmity in the charge-sheet as it has been submitted after due investigation and on the basis of the evidences found against the applicant.
7. Statements O.P. No. 2 as well as charge-sheet witnesses Yogesh Kumar, Omveer Sharma, Mukesh Sharma, Rakesh Singh, Kuldeep Singh, Billu Pradhan alias Manvendra Singh, Shyamveer Singh, proved the prima facie offence against the applicant. As regards statements made by learned counsel for the applicant regarding animosity, there is no evidence to prove any such enmity which has not been admitted by learned counsel for the applicant, therefore, benefit of the same cannot be given to the applicant.
8. From the CDR as well as on the basis of statements of the persons, on whose I.D. mobile number 9412545695 was issued, namely, Ishtekhar and Dharmendra Kumar, who has re-tweeted the message, benefit of doubt cannot be given to the applicant as from a perusal of call records it is clear that the calls were made by the applicant from mobile no. 8006100282 to mobile no. 9536320640 on different dates. While submitting the charge-sheet the Investigating Officer has also clearly stated that no other evidence has been collected to show involvement of any other person except the applicant in the aforesaid act. It is next contended by learned counsel for the State that other contentions raised by the applicant's counsel relate to disputed questions of fact.
9. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.
10. This Court finds that the submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicant and trial is yet to come only on the submission made by the learned counsel for the applicant that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:-
(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,
(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,
(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,
(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122,
(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682,
(vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454,
(vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45, and lastly
(viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143.
11. In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicant arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
12. In view of the above, no interference is called for. The prayer for quashing the impugned charge-sheet and cognizance order is refused, as I do not see any abuse of the court's process at this pre-trial stage.
13. The present application has no merit and is, accordingly, rejected.
Order Date :- 7.4.2025
DS
