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Brahm Kumar Dubey And 4 Ors vs State Of U.P. And Anr on 6 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 46

Case :- APPLICATION U/S 482 No. – 3695 of 2020

Applicant :- Brahm Kumar Dubey And 4 Ors

Opposite Party :- State Of U.P. And Anr

Counsel for Applicant :- Vichitra Singh Chauhan,Ashutosh Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Naheed Ara Moonis,J.

Heard learned counsel for the applicants, the learned AGA for the State and perused the record.

The instant application has been filed by the applicants with a prayer to quash the proceeding pursuant to the summoning order dated 6.9.2018 passed by the learned Additional Chief Judicial Magistrate, Court No.5, Agra in Complaint Case No.2052 of 2017 (Smt. Sonam @ Sonali Vs. Brhm Kumar Dubey others), under Section 406 IPC, P.S. Mahila Thana, District Agra.

The contention of the counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. Learned court below has proceeded against the applicants in a pedantic manner merely on the basis of statements of the complainant and of the witnesses recorded under Sections 200/202 Cr.P.C. and passed the summoning order against them to face the trial under the aforesaid offences when no prima facie offence is made out, which is nothing but sheer abuse of the process of law.

Per contra learned AGA opposed contention of the applicants stating that the order passed by the learned Magistrate does not suffer from any legal or procedural infirmity. The learned Magistrate has taken cognizance of the matter after recording the statement of the complainant and the witnesses under sections 200 and 202 Cr.P.C. The innocence of the applicants cannot be adjudged at the primitive stage. The applicants will have ample opportunity to raise objection at the appropriate stage before the court below.

From the perusal of the materials on record and looking into the facts and after considering the arguments of the learned AGA for the State, it cannot be said that no offence has been made out against the applicants. Cognizance taken by the trial court, whereby the applicants have been summoned to face the trial suffers from no illegality and as such the prayer for quashing the proceedings is refused. At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record. Only this has to be seen whether prima facie cognizable offence is made out or not. The Apex Court has also laid down the guidelines in the case State of Haryana Vs. Bhajanlal, 1999 SCC(Crl) 426, and State of Bihar Vs. P. P. Sharma, 1992 SCC(Crl) 192.where the criminal proceedings could be interfered and quashed in exercise of its power envisaged under section 482 Cr.P.C.

From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon’ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised:-

(i) to give effect an order under the Code;

(ii) to prevent abuse of the process of the court;

(iiii) to otherwise secure the ends of justice.

The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. Even if there is suspicion about commission of offence the charge can be framed.

Having considered rival submissions advanced by the learned counsel for the parties, this Court does not find any justifiable ground for quashing the proceedings initiated pursuant to the summoning order in the aforesaid case in exercise of its inherent powers conferred under section 482 Cr.P.C. The application is bereft of merits and is accordingly dismissed.

However, the applicants are directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.

It is, further, provided that the applicant nos.3 4, namely, Smt. Anita and Km. Ganga @ Priyanka shall be released on interim bail following the provisions of section 437 Cr.P.C. till the disposal of the regular bail application.

In case the applicants fail to surrender within the stipulated period the court below shall take appropriate action against them.

Order Date :- 6.2.2020

M. Tariq

 

 

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