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Jitendra Kumar Sagar vs State Of U.P. And Another on 29 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 79

Case :- APPLICATION U/S 482 No. – 37690 of 2018

Applicant :- Jitendra Kumar Sagar

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Virendra Singh Parmar

Counsel for Opposite Party :- G.A.,Dinesh Kumar Gupta

Hon’ble Harsh Kumar,J.

Heard Sri Virendra Singh Parmar, learned counsel for applicant, Sri Dinesh Kumar Gupta learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.

This application under Section 482 Cr.P.C. has been filed for quashing the impugned summoning order dated 3.4.2018 passed by Chief Judicial Magistrate, Hamirpur in Criminal Misc. Case No.35/12 of 2018 (Smt. Mithilesh Kumari Vs. State of U.P.) arising out of Case Crime No.451 of 2017, under section 354 IPC, P.S. Sumerpur, District Hamirpur.

Learned counsel for applicant contends that applicant is not a quack but a qualified M.B.B.S. Doctor and running a private clinic in the name of Sagar Private Clinic and has been falsely implicated by opposite party no.2; that applicant being Medical Officer provided treatment to opposite party no.2 and received requisite charges; that opposite party no.2 lodged a false F.I.R. against applicant through application under section 156(3) Cr.P.C. with concocted allegations that applicant allegedly usurped a sum of Rs.2,80,000/- from her during 2017 by taking exorbitant charges of injections and other treatment and charged Rs.9,600/- per injections each of which injection costs Rs.300/- in market and when applicant came to know that opposite party no.2 is issue-less since her marriage in 2014, he assured her guaranteed treatment and so that she may be blessed with child, taken her to Kanpur and usurped Rs.2,80,000/- in collusion with Dr. M.K. Khare and Dr. Sangeeta Singh, where he provided her 32 injections and 26 bottles of glucose, and wife of applicant used to help him and applicant allegedly used to ask her that her husband is impotent and also used to kiss her and touch her and his wife supported him; that similar statements were made by opposite party no.2 in her statements under sections 161 and 164 Cr.P.C., but there are material contradictions; that opposite party no.2 has stated to have gone to Kanpur with applicant with her husband and considering the material collected during investigation, the Investigating Officer submitted final report in the matter; that opposite party no.2 filed protest petition against final report, on which learned Magistrate outrightly taken cognizance against applicant for the offence under section 354 IPC; that the impugned order is wrong on facts and law and deserves to be quashed; that applicant never outraged modesty of opposite party no.2 and the improved statement of opposite party no.2 about catching her with bad intention, kissing her or presenting her flower etc. by applicant, are false and concocted; that in above alleged acts of applicant, his wife is alleged to have supported applicant, which is highly improbable; that it is wrong to say that applicant is a quack; that no offence is made out against applicant and the impugned summoning order is nothing but only abuse of process of Court and is liable to be quashed.

Per contra, learned AGA and learned counsel for opposite party no.2 supported the impugned summoning order and contended that learned Magistrate has rightly passed impugned order upon finding sufficient evidence against applicant for offence under section 354 IPC in case diary and since there was sufficient evidence on case diary, learned Magistrate was not required to consider the affidavit given in support of protest petition or to record statements of opposite party no.2 and her witnesses under sections 200 and 202 Cr.P.C.; that the averments of F.I.R./application under section 156(3) Cr.P.C. as well as statements of opposite party no.2 under sections 161 and 164 Cr.P.C. are consistent and there is no material contradictions therein; that there is no reason for false implication of applicant, who has misused his position as doctor, which is a grievous offence; that application has been moved with false and baseless allegations and is liable to be dismissed.

From the perusal of the 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 relate to the disputed questions of fact, which require evidence and 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, and the applicant has failed to prove any prima facie case for quashing the proceedings. It is settled principle of law that if there is sufficient evidence on case diary, the Court is competent to reject final report and take cognizance outrightly under section 190(1) (b) Cr.P.C. without adopting the procedure of Chapter XV of Code of Criminal Procedure.

In view of discussions made above,I have come to the conclusion that there is no illegality, irregularity, incorrectness or impropriety in impugned order and learned counsel for applicant has failed to show that there is any abuse of process of court or likelihood of miscarriage of justice for prevention of which the exercise of inherent powers by this Court is required. The application is devoid of merits and is liable to be dismissed.

The application u/s 482 Cr.P.C. is accordingly dismissed.

Interim order, if any, stands vacated.

Order Date :- 29.1.2020/Tamang

 

 

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