Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 654 (ALL)

Ramesh Chandra Sharma v. State of U. P.

2015-03-31

BHARAT BHUSHAN

body2015
JUDGMENT Bharat Bhushan,J. Learned AGA has accepted notice on behalf of State, respondent no. 1. 2. Heard Sri M.K.Mishra, learned counsel for the applicant and learned AGA for the State. 3. It appears that respondent no. 2, Parmananad Bhardwaj lodged a First Information Report (in short, FIR) alleging that applicant Ramesh Chandra Sharma and Navin Upadhayay have misappropriated the machines and other materials lying in his factory. This complaint was inquired by the Magistrate. The evidence of complainant under section 200 Cr.P.C. and his witnesses namely, Dharmendra Misra, Jagdish Prasad and Vinod Kumar Gupta were recorded under section 202 Cr.P.C. Thereafter, both the applicants were summoned by Additional Judicial Magistrate, Court No. 2, Aligarh vide order dated 17.4.2014. The proceedings of the complaint case is under challenge in this petition under section 482 Cr.P.C. 4. The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. 5. Learned AGA has submitted that available material is enough to summon accused persons and considering material on record, it can not be said that no evidence is made out against the applicants. 6. Learned Magistrate has summoned applicants (accused persons) on the basis of preliminary inquiry conducted by him. At this stage, learned Magistrate is not required to conduct a roving and meticulous inquiry. The Apex Court in Sonu Gupta versus Deepak Gupta & others, ILC 2015-SC-CRL-Feb7 has held thus: "At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not." 7. Thus, legal position is very clear the Magistrate has to prima facie make up his mind on basis of material collected during inquiry. 8. Similarly power under section 482 Cr.P.C. can not be used to scuttle criminal proceeding in routine manner. Thus, legal position is very clear the Magistrate has to prima facie make up his mind on basis of material collected during inquiry. 8. Similarly power under section 482 Cr.P.C. can not be used to scuttle criminal proceeding in routine manner. From the perusal of 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 submissions made at the bar relates to the disputed question 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 Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. 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 a right of discharge under Section 245 Cr.P.C. before the court below and they are free to take all the submissions in the said discharge application before the trial court. 9. The prayer for quashing the proceedings of case is refused. The petition under section 482 Cr.P.C. is accordingly dismissed.