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Vijay Kumar vs State Of U.P. And Another on 7 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 77

Case :- APPLICATION U/S 482 No. – 35075 of 2019

Applicant :- Vijay Kumar

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

Counsel for Applicant :- Akhilesh Kumar Mishra

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

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

This application under Section 482 Cr.P.C. has been filed by applicant Vijay Kumar against State of U.P. and Shiv Prakash Saini, with prayer to quash the summoning order dated 15.2.2017 as well as entire proceedings of Complaint Case No. 497 of 2016, Shiv Prakash Saini Vs. Indrajeet Yadav and others, under Section 406 I.P.C., P.S. Dhanghata, district Sant Kabir Nagar, pending in court of C.J.M., Sant Kabir Nagar.

Learned counsel for the applicant argued 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 vehemently 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 Cr.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 inState 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 summoning as well as proceeding of the aforesaid criminal case is refused. Accordingly, the application is dismissed.

However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within thirty days from today and apply 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 thirty days 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 applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

Order Date :- 7.1.2020

Pcl

 

 

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