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Ashutosh Sharma @ Ashu Sharma vs State Of U.P. & Ors. on 13 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 14

Case :- U/S 482/378/407 No. – 172 of 2020

Applicant :- Ashutosh Sharma @ Ashu Sharma

Opposite Party :- State Of U.P. Ors.

Counsel for Applicant :- Sachida Nand

Counsel for Opposite Party :- G.A.

Hon’ble Virendra Kumar Srivastava,J.

The instant application has been filed u/s 482 with a prayer to quash the charge sheet as well as summoning order dated 4.12.2018 and entire proceedings of Case No. 65 of 2019 arising out of Case Crime No. 93 of 2018, U/s 406 I.P.C., P.S. Mohali, District Sitapur (State vs. Ashu Sharma) pending before the Judicial Magistrate Ist, Sitapur.

Heard learned counsel for the applicant, the learned A.G.A. for the State and perused the material on record.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case. Learned counsel further submits that no offence under Section 406 I.P.C. has been made out from perusal of whole prosecution record and the learned Magistrate without applying his judicial mind, summoned the applicant in arbitrary and cursory manner and also issued a bailable warrant against him. Learned counsel further submits that the whole prosecution story is nothing but abuse of process of law, hence, the entire proceeding as well as the summoning order deserve to be quashed.

Learned A.G.A. has vehemently opposed and submits that specific allegations has been levelled against the applicant that Rs. 2,50,000/- was taken by the applicant by cheating to O.P. No. 3 for getting her grand son exonerated from criminal case but the same was not returned. Learned A.G.A. further submits that there is sufficient prosecution evidence as well as material against the applicant which shows that cognizable offence is made out and at this stage, the truthfulness of falsehood of the case cannot be adjudged.

Hon’ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir Ors. Vs. State of Gujarat AIR 2017 SC 4843, Sau. Kamal Shivaji Pokarnekar vs. State of Maharashtra AIR (2019) SC 847, after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.

From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicant. All the submissions made by the learned counsel for the applicant relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings and summoning order dated 4.12.2018 is refused.

However, on the request of learned counsel for the applicant, it is provided that if the applicant appears or surrenders before the Court concerned within 15 days from today and applies for bail in the aforesaid case, his prayer for bail shall be considered as expeditiously as possible by the court below in accordance with law.

With aforesaid direction /observation, the instant application finally stands disposed of.

Order Date :- 13.1.2020

saurabh

 

 

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