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2016 DIGILAW 3655 (ALL)

Banti @ Jhalkesh Babu v. State of U. P.

2016-11-08

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. Heard learned counsel for the applicants, learned A.G.A. for State and perused the record. This application under Section 4 82 Cr.P.C. has been filed by the applicants with prayer to quash the N.B.W. order dated 22.9.2016 passed by learned Additional Chief Judicial Magistrate-III, Etawah in Complaint Case No. 562 of 2014, under Sections 498-A, 323, 504 IPC and 3/4 Dowry Prohibition Act, Police station Civil Lines, District Etawah. Applicants have earlier approached before this Court taking recourse of the provisions under Section 4 82 Cr.P.C. No. 9975 of 2015 and this Court on 16.5.2016 passed the following order: - "Case called out. None has appeared on behalf of the applicants to press this application. Heard Sri Dinesh Kumar Verma, learned counsel for the opposite party no.2 and the learned A.G.A. for the State and have taken through the record. The instant application was filed by the applicants with a prayer to quash the proceeding of Complaint Case No.5.11.2014, under Sections498-A,323,504 IPC and 3/4 Dowry Prohibition Act, P.S. Civil Lines, District Etawah pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.3, Etawah. This Court by order dated 17.4.2015 referred the matter to the Mediation Centre of this Court for conciliation between the parties. The mediation report dated 19.8.2015 indicates that the parties are not willing for mediation, therefore, mediation failed. From the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants. At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases: - (i) R. P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866 , (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192. From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. State of Punjab, AIR 1960 S.C. 866 , (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192. From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 4 82 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised: -(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing the proceeding is refused. There is no merit in this application filed under Section 4 82 Cr.P.C., thus the same is accordingly dismissed. The applicants have ample opportunity to raise all the objections at the appropriate stage. The applicants are directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously keeping in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amarawati & another Vs. State of U.P. reported in 2004 (57) ALR 290 and is also approved by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (2) Crimes 4 (S.C.) after hearing the Public Prosecutor. State of U.P. reported in 2004 (57) ALR 290 and is also approved by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (2) Crimes 4 (S.C.) after hearing the Public Prosecutor. It is, however, provided that the applicant no.3 shall be released on interim bail following the provisions of section 437 Cr.P.C. till the disposal of the regular bail application. In case the applicants fail to surrender within the stipulated period the court below shall take appropriate action against them. Interim order stands vacated. The Office is directed to communicate this order through FAX to the court concerned to proceed with the case in accordance with law within two weeks. Order Date : - 16.5.2016" Having regard to the facts and circumstances of the case and hearing the parties, keeping in view, the specific direction given to the applicants vide order dated 16.5.2016 and also taking into consideration, this fact that applicants have not complied the order dated 16.5.2016, no ground is made out to exercise the jurisdiction under Section 4 82 Cr.P.C. Thus, the application is dismissed.