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Rajendra Singh vs State Of U.P. And Another on 13 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 71

Case :- APPLICATION U/S 482 No. – 10308 of 2021

Applicant :- Rajendra Singh

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

Counsel for Applicant :- Yogendra Kumar Srivastava,Anita Srivastava

Counsel for Opposite Party :- G.A.

Hon’ble Raj Beer Singh,J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The instant application under Section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 26.02.2021 passed by learned Special Judge (D.A.A.)/Additional Sessions Judge, Etah in criminal revision no. 121 of 2019 and for quashing the order dated 08.08.2019 passed by learned Additional Chief Judicial Magistrate, Court No. 17, Etah in complaint case no. 726 of 2018, under Sections 406, 506 IPC, police station Raja Ka Rampur, district Etah as well as for quashing the entire proceedings of the above-stated complaint case.

It has been argued by learned counsel for the applicant that the impugned complaint has been filed making false and baseless allegations and that both the impugned orders are against facts and law. It was submitted that matter is purely civil in nature and that no criminal offence is made out against the applicant. Learned counsel has submitted that earlier the applicant has filed an application under Section 482 Cr.P.C. no. 7532 of 2018 for quashing of entire proceedings of impugned complaint as well as summoning order and that application was disposed of vide order dated 08.03.2018, copy of which has been annexed as annexure no. 7 to the application, whereby applicant was given an option to move an application under Section 245(2) Cr.P.C. In pursuance of the said order, applicant has filed an application under Section 245(2) Cr.P.C. for discharge, which has been rejected by the court below vide impugned order dated 08.08.2019 passed by Additional Chief Judicial Magistrate, Court No. 17, Etah. It was further submitted that against the order dated 08.08.2019, applicant has filed a criminal revision, but the said revision was also dismissed vide impugned order dated 26.02.2021 passed by learned Special Judge (D.A.A.)/Additional Sessions Judge, Etah in criminal revision no. 121 of 2019. It has been argued that matter in dispute is purely civil in nature and that application of applicant seeking discharge was rejected in an arbitrary manner, whereas no prima facie case is made out. Learned revisional court also did not consider the matter in correct perspective and dismissed the revision. It was further submitted that both the courts below have not recorded any good reason nor discussed about the provisions of Section 171 of U.P. Z.A. L.A. Act. It was submitted that the ingredients of Section 406 IPC were also not made out. Learned counsel has submitted that in view of aforesaid, both the impugned orders are liable to be set aside and impugned proceedings are liable to be quashed.

On the other hand, learned A.G.A. has opposed the application and argued that from material on record, a prima facie case is made out against the applicants and there is no illegality or perversity in the impugned orders.

So far as the prayer for quashing of impugned proceedings is concerned, it may be stated that the said prayer has already been refused by this Court vide order dated 08.03.2018 passed in application under Section 482 Cr.P.C. no. 7532 of 2018. Thus, in respect of this prayer, instant application is not maintainable.

So far the impugned orders are concerned, it may be stated that it is well settled that while considering discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. At this stage, a mini trial cannot be held and the Court can shift and weigh the evidence for limited purpose of finding out whether or not a prima facie case against the accused is made out or not. Where material placed on record discloses grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in rejecting application for discharge. At this stage, the Court is not to hold mini trial by marshalling the evidence.

In the instant case, perusal of record shows that learned Additional Chief Judicial Magistrate, Court No. 17, Etah has made detailed discussion of entire facts and also considered the statement of complainant recorded under Section 200 Cr.P.C. and of witnesses recorded under Section 202 Cr.P.C. and came to the conclusion that no case for discharge is made out and that the questions of fact raised from the side of applicant-accused can only be considered after evidence is led. Learned Magistrate has also discussed the provisions of Section 171 of U.P.Z.A. L.R. Act as well as the position of law on the point of charge/discharge. In her statement recorded under Section 200 Cr.P.C., complainant has inter alia alleged that her father were two brothers and she is only issue of her parents and as her parents were no more, she was brought up by her aunt (Bua). She has alleged that her grandmother never made any Will and that the ancestral property was never partitioned during life time of her father. She has further alleged that the land of her share was illegally sold by the applicant and he refused to give her share in the ancestral property. Considering the facts of the complaint, statement of complainant recorded under Section 200 Cr.P.C. and of witnesses recorded under Section 202 Cr.P.C., it cannot be said that impugned order dated 08.08.2019 is against facts or law. Similarly, no material illegality or perversity could be shown in the order of revisional court dated 26.02.2021.

It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power can not be exercised to stifle a legitimate prosecution. Such powers have to be exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice. In the instant case no case for quashing of impugned orders is made out.

The courts below have discussed the entire relevant facts and rejected application of the applicant for discharge. Considering allegations made in the complaint and statement of complainant recorded under Section 200 Cr.P.C. and of witnesses recorded under Section 202 Cr.P.C., it cannot be said that prima facie case for charge is not made out. Learned counsel for applicant could not point out any material illegality, perversity or any error in the impugned orders.

Accordingly, the instant application lacks merit and is hereby rejected.

Order Date :- 13.7.2021

Anand

 

 

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