HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 87
Case :- APPLICATION U/S 482 No. – 46576 of 2019
Applicant :- Smt. Afsana And Anr
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Vijay Babu
Counsel for Opposite Party :- G.A.
Hon’ble Virendra Kumar Srivastava,J.
The instant application has been filed u/s 482 Code of Criminal Procedure (Code) with a prayer to quash the entire proceeding as well as summoning order dated 7.8.2009, passed by the Judicial Magistrate-VIth, Mathura in Complaint Case No. 1910 of 2008 (Nemichandra Vs. Smt. Afsana another), under Section 406 I.P.C., P.S. Kotwali., District Mathura.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
As per the allegations made in the complaint the applicants dishonestly took an amount of Rs. 20,000/- from the complainant and when the complainant asked to return the said amount they refused to return the same, hurled abuses and also threatened for lodging a false criminal case.
It is submitted by the learned counsel that the applicants are innocent and have been falsely implicated. They have not taken any money form the complainant. The whole proceeding is nothing but abuse of process of law. Hence the entire proceeding as well as the summoning order deserve to be quashed.
Learned A.G.A. has vehemently opposed the prayer and submitted that from the allegations made in the complaint prima facie offence is made out and applicants have been summoned after recording the statements of complainant and witnesses produced by him, under Sections 200 and 202 of the Code, respectively. He has further submitted that at this stage, the truthfulness or falsehood of the case cannot be adjudged.
Hon’ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir Ors. Vs. State of Gujrat AIR 2017 SC 4843, Sav. Kamal Shivaji Pokernaker Vs. State of Maharashtra AIR (2019) SC 847 after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicants. All the submissions made by the learned counsel for the applicants relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings as well as impugned summoning order dated 7.8.2009 is refused.
However, it is provided that if the applicants appear or surrender before the Court concerned within thirty days from today and apply for bail in the aforesaid case, their prayer for bail shall be considered as expeditiously as possible by the court below in accordance with law.
With aforesaid direction /observation, the instant application finally stands disposed off.
Order Date :- 17.12.2019