HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 68
Case :- APPLICATION U/S 482 No. – 31719 of 2019
Applicant :- Himanshu Shukla And 2 Ors
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Santoosh Kumar Dwivedi
Counsel for Opposite Party :- G.A.
Hon’ble Vivek Varma,J.
The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash entire proceeding of Complaint Case No. 2328 of 2016 (Namrata Vs Himanshu Shukla and others), under Section 406 IPC, P.S. Uttar Firozabad, District Firozabad pending in the court of learned CJM, Firozabad as also the impugned summoning order dated 4.11.2017. Further prayer has been made to stay the further proceedings of the aforesaid case.
Heard learned counsel for the applicants and the learned AGA appearing for the State.
Record would disclose that applicant no. 1 solemnized marriage with opposite party no. 2 in the year 2012 as per Hindu rites and rituals and out of the said wedlock one child was also born on 21.6.2014. On 9.2.2014 an FIR is said to have been lodged against the father of opposite party no. 2 for misbehaving with the applicants and his other family members. Thereafter, opposite party no. 2 is said to have filed an application under Section 125 Cr.P.C. on 18.7.2014 against the applicant no. 1 (husband). Thereafter, opposite party no. 2 is said to have lodged an FIR against the applicants as well as his sister on 19.10.2014 under Sections 498-A, Section323, Section504, Section506, Section452 IPC and Section 3/4 of D. P. Act at P.S. Mahila Thana, District Firozabad in which after investigation, the I.O. submitted a charge sheet dated 26.6.2015, which was challenged by the applicants by filing application under Section 482 Cr.P.C. before this Court being Application U/s 482 SectionCr.P.C. No. 35240 of 2015 and this Court vide order dated 9.12.2015 stayed the further proceedings against the applicants no. 2 3 and sister of the applicant no. 1 and directed that the proceedings of the case shall go on against the husband (applicant no. 1.). In the meantime, opposite party no. 2 filed an application under Section 156(3) Cr.P.C. against the applicants on 24.5.2016 under Section 406 IPC, which was treated as complaint and the learned Magistrate after recording the statement of the complainant and her witnesses under Sections 200 Section202 Cr.P.C. summoned the applicants under Section 406 IPC vide order dated 4.11.2017. This order was again challenged by the applicants before this Court by filing application under Section 482 Cr.P.C. No. 11618 of 2018, which was disposed off by this Court by order dated 12.4.2018 by referring the matter before the Committee constituted for Mediation at District concerned considering the matter to be of matrimonial dispute and there is every likelihood of amicable settlement between the parties and also liberty was granted to file a fresh application under Section 482 Cr.P.C. in case the mediation fails. However, mediation could not be arrived at between the parties and hence the present application under Section 482 Cr.P.C. Record further discloses that proceedings under Section 125 Cr.P.C. has also been initiated by opposite party no. 2 against the husband applicant no. 1 in the year 2014.
It is submitted by the learned counsel for the applicants that the applicants have been summoned on the basis of the application under Section 156(3) Cr.P.C. moved by opposite party no. 2 against the applicants on 24.5.2016.
The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment.
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 applicants. 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 in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, 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.
On the other hand, learned AGA has submitted that applicants have been summoned on the basis of the statements recorded under Sections 200 Cr.P.C. and 202 SectionCr.P.C. The impugned order does not suffer from any illegality or infirmity. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 245 Cr.P.C. through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court including those which have been canvassed by them before this Court in this application.
Having regard to the facts and circumstances of the case, after perusing the entire record and having considered the submissions made by the learned counsel for the parties, I am of the view that no case is made out to interfere with the impugned order. The impugned order does not suffer from any infirmity or illegality. The Magistrate dealing with complaint at this stage has to see only prima-facie case and it cannot be said that no prima-facie case is made out against the applicants. Further, the plea raised before this Court would require leading of evidence, which can be raised before the court concerned at the appropriate Stage. Hence, the prayer made in the present application is refused.
At this stage, learned counsel for the applicants prays that a direction may be issued to the court below for expeditious disposal of the bail application of the applicants.
Hence, it is directed that in case the applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.
With the above observations, the application stands disposed off.
Order Date :- 19.8.2019