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Allahabad High Court · body

2017 DIGILAW 1020 (ALL)

Girdhari Yadav v. State of U. P.

2017-04-17

OM PRAKASH VII

body2017
JUDGMENT Om Prakash-VII, J. 1. Application under Section 482 Cr.P.C. No. 24162 of 2010 has been filed by the applicants Girdhari Yadav and Shivdhari Yadav with the prayer to quash the entire proceedings of the case as well as the summoning order dated 17.6.2010 passed by the learned Additional Chief Judicial Magistrate-III, Jaunpur in Criminal Case No. 1221 of 2010 (State v. Girdhari Yadav & others) arising out of crime No. 209 of 2010, Police Station Mungrabadshahpur, district Jaunpur for the offence under Section 406 IPC. 2. Application under Section 482 Cr.P.C. No. 21599 of 2010 has been filed by the applicant Vinod Kumar Yadav with the prayer to quash the impugned order dated 17.6.2010 passed by the learned Additional Chief Judicial Magistrate-III, Jaunpur in Criminal Case No. 1221 of 2010 (State v. Girdhari Yadav and others), under Section 406 IPC, Police Station Mungrabadshahpur, district Jaunpur on the basis that same is outcome of non application of judicial mind. 3. Application under Section 482 Cr.P.C. No. 30177 of 2010 has been filed by the applicant Girdhari Yadav with the prayer to quash the order dated 25.5.2010 as well as the entire proceedings of Criminal Case No. 1120 of 2010 (State v. Girdhari), case crime No. 215 of 2010, under Section 27 /30 Arms Act, Police Station Mungrabadshahpur, district Jaunpur pending in the court of Additional Chief Judicial Magistrate-III, District Jaunpur. 4. Application under Section 482 Cr.P.C. No. 30178 of 2010 has been filed by the applicant Shiv Dhari Yadav with the prayer to quash the order dated 25.5.2010 as well the entire proceedings of criminal case No. 1119 of 2010 (State v. Shiv Dhari), case crime No. 216 of 2010, under Section 27 /30 Arms Act, Police Station Mungrabadshahpur, district Jaunpur pending in the court of Additional Chief Judicial Magistrate-III, Jaunpur. 5. All the aforesaid cases arise out of the same facts and have been heard together and are being decided simultaneously by a common order. 6. Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Shivam Yadav submits that applicants and opposite party No. 2 are the family members. 5. All the aforesaid cases arise out of the same facts and have been heard together and are being decided simultaneously by a common order. 6. Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Shivam Yadav submits that applicants and opposite party No. 2 are the family members. Two factories in the district Jaunpur at Satahariya in the name and style of Anjani Steel Private Limited, M/s. Abhinav Steel Private Limited, and two factories in district Raigarh (Orissa) in the name and style of M/s. Spung Iron Division and the other furnishing division were owned and running by the applicants and the opposite party No. 2 and his family members. Two Memorandum of Understandings (MOU) were executed with regard to the partition of the above mentioned factories on 17.11.2009 and 20.12.2009 respectively between the parties. Factories situated at Satahariya, district Jaunpur came in the share of opposite party No. 2 and his brothers and the factories situated at Raigarh came in the share of the applicants but the conditions entered into between the parties in the said MOUs were not actually followed or acted upon. Since the applicants were working as Directors in all the companies, therefore, they had gone to take some documents from the factories situated at Satahariya, district Jaunpur. Entire allegations levelled against them in the F.I.R. are false. On the basis of allegations levelled against the applicants neither the offence under Sections 395/397 IPC nor under Section 406 IPC are made out. Investigating officer illegally without considering this fact that arbitration proceeding on the basis of order passed by the Delhi High Court is going on between the parties, illegally submitted charge sheet for the offence under Section 406 IPC and under Section 27 /30 Arms Act against the applicants. There was no sufficient evidence collected during the course of investigation to constitute the offence under Section 27 /30 Arms Act but the Investigating Officer under the pressure of the opposite party illegally submitted charge sheet against the applicants for the offence under Section 27 /30 Arms Act. Referring to the conditions of the MOUs and the order passed by the Delhi High Court in arbitral proceedings it was further argued that criminal prosecution on the basis of the allegations levelled in the first information report against the applicants cannot continue. Referring to the conditions of the MOUs and the order passed by the Delhi High Court in arbitral proceedings it was further argued that criminal prosecution on the basis of the allegations levelled in the first information report against the applicants cannot continue. It was purely a case of partition and actual possession was still to be handed over hence the applicants had right to visit the factories situated at Satahariya, Jaunpur and to take back the documents kept in the factory relating to the applicants. Learned counsel for the applicants also made emphasis upon the direction given under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and argued that the order passed by the Delhi High Court itself make it clear that informant did not deposit the required amount and due to that reason possession of the factories were not finally handed over to the respective parties. Applicants were still in possession over the factories situated in Satahariya, Jaunpur also. Thus it was argued that if the entire prosecution story is taken into consideration then offence under Section 406 IPC or the offence under Section 395 /397 IPC are not attracted against the applicants (accused). The proceedings of the aforesaid cases are abuse of process of law. 7. Per contra learned A.G.A. as well as Sri Ashok Kumar Singh, learned counsel appearing for the opposite party No. 2 (complainant) in the Application U/S. 482 Cr. P.C. No. 24162 of 2010 argued that witnesses interrogated by the Investigating Officer in the matter have fully supported the contents of the F.I.R. Applicants of Application U/S. 482 Cr.P.C. No. 24162 of 2010 have admitted that they entered in to the factory concerned and took out the documents on the date of incident. Since the incident is said to have taken place on 23.3.2010 and MOUs had been finalised in the year 2009 handing over the possession to the respective parties, hence the contents of the F.I.R. that the applicants Girdhari Yadav and Shivdhari Yadav along with other associates armed with fire arm weapon entered into the factories, without any right and title as they were not the owner of the factories, constitute the offences. Informant and some witnesses have supported the prosecution case. Informant and some witnesses have supported the prosecution case. Only on the basis that few witnesses did not support the prosecution case it cannot be held that no prima facie case is made out against the accused person. It was further submitted that the arbitration proceeding pending on the basis of order passed by the Delhi High Court is only relating to implementation of certain conditions of MOUs. In the present matter there is sufficient evidence recorded in the C.C.T.V. Camera and C.D. Accused persons took away not only the articles belonging to the opposite party No. 2 (complainant) from the factories situated at Satahariya, district Jaunpur but also looted currency kept in the factory. Thus prayer is made to direct the court below to proceed with the trial for the offence under Section 395 /397 IPC also. 8. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the statement of the witnesses interrogated by the Investigating Officer during investigation. 9. In the instant matter, as is clear from the record that four factories, two situated at Jaunpur in the name and style of Anjani Steel Private Limited and M/s. Abhinav Steel Private Limited and two in district Raigarh, State of Orissa, in the name and style of M/s. Spung Iron Division and furnishing division were running by the applicants and the opposite party No. 2 Vinod Yadav and his family members. Partition took place between the parties regarding shares in the said factories and two MOUs dated 27.11.2009 and 26.12.2009 were entered into between the parties regarding terms and conditions of the partition. Present offence is said to have been committed on 23.3.2010. In the arbitration proceedings pending before the Delhi High Court interim order was passed on 21.4.2010 under Section 9 of the Act directing the petitioner to deposit certain amount i.e. Rs. 5,02,66,000/-. Allegations against the applicants Girdhari Yadav and Shiv Dhari Yadav are that they entered into premises of factories at Satahariya, district Jaunpur and looted not only the documents kept in the office but computers and cash also. From a perusal of the record it also transpires that some witnesses have supported the prosecution case in the interrogation made by the Investigating Officer but few of them have not supported the prosecution case. From a perusal of the record it also transpires that some witnesses have supported the prosecution case in the interrogation made by the Investigating Officer but few of them have not supported the prosecution case. Investigating Officer had filed charge sheet against the accused persons for the offence under Section 406 IPC and 27/30 Arms Act. 10. In the backdrop of the above facts, if the submission raised by the learned counsel for the parties are compared with the order passed by the court below, it emerges that it is admitted fact that on the day of incident applicant (accused) entered into the premises of factories situated at Satharia, Jaunpur. Only defence of the applicants is that since they were still owner/Directors of the factories and were entitled to enter in to the factory premises and take the papers relating to them, therefore, offence levelled against them are not attracted. The informant’s case is in compliance of the MOUs entered into between the parties that possession had already been handed over to him. Since certain conditions only remained to be fulfilled hence applicants were not entitled to enter into the premises situated at Satahariya, district Jaunpur on the ground of directorship. Both the pleas taken by the parties in the opinion of the court requires leading of evidence and this Court cannot decide this fact on the basis of affidavits exchanged between the parties. 11. From a perusal of the statement of the witnesses interrogated under Section 161 Cr.P.C. and the terms and conditions entered into between the parties in the MOUs and also the order passed by the Delhi High Court in arbitral proceedings at this stage it cannot be said that no offence against the accused persons are attracted especially when the accused person themselves have taken the plea that they entered into the premises of the said factories on the day of incident. So far as the cognizance taken by the concerned Magistrate under Section 406 IPC and constitution of offence under Section 395 , 397 IPC against the accused person is concerned, this fact shall be decided by the trial court at the appropriate stage. Parties will have the opportunity to raise this question before the court concerned at appropriate stage. No ground is made out to interfere with the impugned order passed in the aforesaid criminal cases at this stage. Parties will have the opportunity to raise this question before the court concerned at appropriate stage. No ground is made out to interfere with the impugned order passed in the aforesaid criminal cases at this stage. So far as the mentioning of offence under Section 30 6 IPC in place of Section 406 IPC is concerned, this fact itself has been clarified by the court below in its order passed at later stage. 12. It is made clear that the pendency of arbitral proceedings is no bar in continuation of the present criminal proceedings against the accused person in the present matter. The court below is expected to go through the entire evidence at the stage i.e. framing of charge and also pass the appropriate order after applying judicial mind. 13. Thus in view of the aforesaid discussion, neither the prayer made in the Application U/s. 482 Cr.P.C. No. 24162 of 2010; 30177 of 2010 and 30178 of 2010 by the accused persons nor the prayer made by the informant in Application U/s. 482 Cr.P.C. No. 21599 of 2010 are liable to be allowed. 14. Thus the Applications U/s. 482 Cr. P.C. No. 24162 of 2010; 30177 of 2010; 30178 of 2010 and 21599 of 2010 are hereby dismissed. 15. Copy of this order be placed on the record of Application U/S. 482 Cr.P.C. No. 30177 of 2010; 30178 of 2010 and 21599 of 2010 and be also sent to the court concerned so that trial may proceed in accordance with law.