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2015 DIGILAW 472 (ALL)

Umar v. State of U. P.

2015-03-12

MUKHTAR AHMAD

body2015
JUDGMENT Mukhtar Ahmad, J. 1. This application under Section 482 Cr.P.C. has been filed by the applicantsccused persons for quashing the order dated 16.9.2006 passed in Criminal Revision No. 271 of 2006 and the order dated 04.11.2006 passed by the concerned Magistrate whereby the accused persons are summoned for facing trial under Sections 147, 148, 149, 307, 336, 504 IPC in Case Crime No. 1064 of 2004, P.S. Chandpur district, Bijnor. 2. Factual matrix of the case is that on a written complaint, moved on behalf of respondent No. 2/complainant-Mahboob Ahmad, a case was registered against the accused persons. It is evident from the order dated 04.11.2006 passed by the Magistrate that initially, charge sheet was submitted by the Investigating Officer on 09.05.2005, but later on, it was cancelled and final report under Section 173(1)Cr.P.C. was submitted on 04.06.2005 observing that offence complained of was false. Challenging the correctness of the report submitted by the police, the respondent no-2/first informant filed a protest petition. The Magistrate vide order dated 27.5.2006 accepted the final report but the protest petition was ordered to be treated as a complaint. Feeling aggrieved with that order, the respondent No. 2-first informant preferred a Criminal Revision No. 271 of 2006 (Mahboob Ahmad v. State of U.P.) which was allowed subsequently on 16.09.2006 and the Revisional Court after setting aside the order dated 27.5.2006 remitted it back to the Magistrate for deciding the protest petition afresh. The Revisional Court allowed the revision considering that the protest petition cannot be treated as a complaint. It further reveals that vide order dated 4.11.2006, the concerned Magistrate has straightway summoned the accused persons for facing trial as mentioned above. 3. I have heard learned Counsel for the parties and learned AGA. 4. The contention of the counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention. 5. Per contra, learned Counsel for opposite party No. 2 have denied these arguments and supported the impugned order by saying that at the stage of summoning of accused, meticulous examination of the evidence collected by the Investigating Officer is not required as, it is not open for the Magistrate to consider the evidence in the capacity of Trial Judge. 6. Per contra, learned Counsel for opposite party No. 2 have denied these arguments and supported the impugned order by saying that at the stage of summoning of accused, meticulous examination of the evidence collected by the Investigating Officer is not required as, it is not open for the Magistrate to consider the evidence in the capacity of Trial Judge. 6. From the perusal of the material on record and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against the applicants. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur v. State of Punjab, : A.I.R. 1960 S.C. 866, State of Haryana v. Bhajan Lal, : 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, : 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) : 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got right of discharge under Sections 239, 227/228 or 245(2) Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court. 7. The prayer for quashing the proceedings as well as summoning order is hereby refused. 8. However, it is directed that the applicants shall appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another v. 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 v. State of U.P. For a period of 30 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 applicants. However in case the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. 9. With the aforesaid directions, this application is finally disposed of. Interim order, if any stands discharged.