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Nihal Ahmad vs State Of Up And Anr on 19 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 77

Case :- APPLICATION U/S 482 No. – 35401 of 2019

Applicant :- Nihal Ahmad

Opposite Party :- State Of Up And Anr

Counsel for Applicant :- Padmaker Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.

The applicant, Nihal Ahmad, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the impugned summoning order, dated 10.5.2019, passed by A.C.M.M. III, Kanpur Nagar, in Complaint Case No.10712 of 2015, Smt. Zarena Begum Jafri vs. Nihal Ahmad and others, under Section 406 I.P.C., Police Station Pheel Khana, District Kanpur Nagar, pending in court of A.C.M.M. III, Kanpur Nagar.

The contention of learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. Learned counsel has pointed out towards certain documents and statements in support of his contention.

Learned A.G.A. has opposed the application by contending that all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.

Considered the rival submissions made by the parties.

The submissions made by learned counsel for the applicant call for adjudication on pure questions of fact, which may be adequately 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. Veracity of the statements are material evidence of fact and is not to be ascertained in this proceeding u/s 482 SectionCr.P.C. of this Court because the same is within the jurisdiction of Trial Court and is a point of fact to be seen in the trial. In view of law propounded by Hon’ble Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844, Hamida v. Rashid, (2008) 1 SCC 474, Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296, Dhanlakshmi v. R.Prasana Kumar, (1990) Cr.L.J. 320 (DB): AIR 1990 SC 494, State of Bihar V. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, there is no ground for interference under Section 482 Cr.P.C.

The prayer for quashing proceeding of the aforesaid criminal case is refused.

However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within four weeks from today and applies for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant.

However, in case, the applicants do not appear before the Court below, within the aforesaid period, coercive action shall be taken against them.

With the aforesaid directions, this application is finally disposed of.

Order Date :- 19.11.2019

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