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Radhey Shyam Gupta And 4 Others vs State Of U.P. And Another on 9 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved On:-19.08.2019

Delivered On:-09.09.2019

Case :- APPLICATION U/S 482 No. – 34690 of 2016

Applicant :- Radhey Shyam Gupta And 4 Others

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

Counsel for Applicant :- Amit Saxena

Counsel for Opposite Party :- G.A.,Brajesh Kumar Solanki

Hon’ble Om Prakash-VII,J.

1. The present application u/s 482 SectionCr.P.C. has been filed by the applicants with the prayer to quash the charge-sheet no. 224 of 2016 dated 20.07.2016 in Case No. 41657 of 2016 pending in the court of Additional Chief Metropolitan Magistrate, Court No. 1, Kanpur Nagar arising out of Case Crime No. 0244 of 2016, under Sections 147, Section323, Section504, Section325, Section506, Section506 IPC, Police Station Barra, District Kanpur Nagar.

2. Heard Shri Amit Saxena, learned counsel for the applicants and Shri Brajesh Kumar Solanki, learned counsel for the opposite party no. 2 as well as learned AGA for the State.

3. It is submitted by learned counsel for the applicants that cognizance order passed in the matter is illegal. Offence under Section 406 IPC is not made out. FIR was lodged at the behest of one Kaptan Singh and Munni Devi. Applicant no. 1 Radhey Shyam Gupta is suffering from kidney disease. It is further submitted that applicant no. 2 donated her kidney and transplantation was performed on applicant no. 1. Thus referring to the aforesaid facts, it is further submitted that it appears improbable and unbelievable that applicant nos. 1 2 in such ailing condition would take part in committing the present offence. It is further submitted that offence under Section 406 IPC is not attracted in the present matter. None of the ingredients of the aforesaid offence are available in the present matter. Concerned Magistrate while taking cognizance on the charge-sheet did not apply judicial mind, which resulted in an illegal order. Thus, referring to the affidavits, it is further submitted that continuation of the proceeding of the aforesaid criminal case is an abuse of process of law. Learned counsel for the applicants also placed reliance on the decision of this Court passed on 16.07.2019 in the case of Ram Nagina Srivastava Vs. State of U.P., on the application u/s 482 SectionCr.P.C. No. 5378 of 2002.

4. On the other hand, learned AGA as well as learned counsel for the opposite party no. 2 argued that a prima facie case is made out against the applicants. There is no illegality, infirmity or perversity in the impugned order. Opposite party no. 2 has no concern with the FIRs lodged by one Kaptan Singh disclosed in the affidavit of the application. All the offences levelled against the applicants are clearly attracted. In support of his contention reliance was also placed by learned counsel for the opposite party no. 2 the law laid down by Hon’ble Supreme Court in the case of State of Gujarat Vs. Afroz Mohammed Hasanfatta, 2019 (107) ACC 295.

5. I have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire record carefully.

6. In this matter, as is evident from the record, charge-sheet was submitted after investigation against the applicants for the offence under Sections 147, Section323, Section504, Section325, Section506 and Section406 IPC. Cognizance was taken by the concerned Magistrate on 03.10.2016 on the charge-sheet mentioning that “आधार पर्याप्त है l प्रसंज्ञान लिया जाता है l मुकदमा दर्ज रजिस्टर हो”

7. Allegation levelled against the applicants is that opposite party no. 2 had gone to sell the Raddi/waste papers to the shop of the applicant nos. 1 2. Some dispute arose between them regarding weighing of waste papers. Thereafter, applicants have committed present offence and also mixed the raddi papers with their stock.

8. If the ratio laid down in Ram Nagina Srivastava (supra) case as relied upon by the learned counsel for the applicants, is taken into consideration, it is evident that while taking cognizance on the charge-sheet in the present case, concerned Magistrate has recorded his satisfaction by mentioning on the charge-sheet itself that “आधार पर्याप्त है” and then only cognizance was taken and order for registration of the case was passed. Thus, applicants do not get any help with the law laid down in Ram Nagina Srivastava (supra) case. A prima facie case is made out against the applicants in the present matter.

9. As far as number of criminal prosecution started on behalf of Kaptan Singh and Munni Devi against the applicants earlier to the present FIR is concerned, there is specific denial in the counter affidavit that opposite party no. 2 has no concern with Kaptan Singh and Munni Devi. It is pertinent to mention here that court dealing with the matter at this stage has to see only a prima facie case. If satisfaction in the form of sufficiency of the grounds/evidence has been recorded on the charge-sheet at the time of taking cognizance, it cannot be held that cognizance was taken in the present matter without applying judicial mind by the concerned Magistrate. On close scrutiny of entire evidence on record, no illegality, infirmity or perversity is found. Application, having no substance, is not liable to be allowed and the prayer made in the application is hereby refused.

10. 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.

11. 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.

12. It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.

13. With the above observations, the application stands disposed of.

Order Date :- 09.09.2019

Sanjeet

 

 

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