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2017 DIGILAW 17 (ALL)

Arjun v. State of U. P.

2017-01-03

ALOK KUMAR MUKHERJEE

body2017
JUDGMENT Alok Kumar Mukherjee,J. Heard Sri Ram Chandra Maurya, learned counsel for the applicant and learned A.G.A. for the State as also perused the record. The present application U/s 482 Cr.P.C. has been filed for quashing of the impugned charge sheet dated 23.09.2007 in Criminal Case No. 5497 of 2007 (State Vs. Mitthoo and others), under Sections 323, 504, 506 IPC, Police Station Khalilabad, District Sant Kabir Nagar as well as cognizance dated 23.09.2007 passed by the Chief Judicial Magistrate, Sant Kabir Nagar. The contention of the learned counsel for the applicant is that from the material on record, no offence is disclosed against the applicant and the present prosecution has been instituted with a malafide intention for the purpose of harassment. Moreover, all the offences, in which the applicant has been summoned are non cognizable one, therefore, the trial with regard to the impugned charge sheet, filed by the Investigating Officer, cannot proceed as a 'police case' and the same is liable to be proceeded as a 'complaint case', in view of the principle of law laid down by this Court in the decisions of Murli and others Vs. State of U.P. and another, 2008 (61) ACC 54; Virendra Singh and others Vs. State of U.P. and others, 2002 (45) ACC 609; Shakila Bano and others Vs. State of U.P. and another, 2008 (61) ACC 636 and recently affirmed by the order dated 22.12.2015 of the concurrent Bench of this Court in Application U/s 482 Cr.P.C. No. 36795 of 2015 (Shriya Shukla Vs. State of U.P. and another). He pointed out certain documents and statements in support of his contention. Learned AGA for the State has opposed the prayer for quashing of the impugned summoning order in question and has contended that the application is premature because the case is pending for appearance of the remaining accused persons and the trial has not yet been commenced. After hearing the rival submissions of the parties, 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 applicant from the material on record. After hearing the rival submissions of the parties, 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 applicant from the material on record. All the submissions made at the bar relate 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 the 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 in Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused/applicant cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228, or 245 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court as per law. The prayer for quashing the impugned charge sheet and the proceeding is refused. However, it is provided that if the applicant appears and moves an application with regard to the procedure of the trial, as referred above, the court below is directed to consider and decide his application, in view of the settled legal position and also as per law, as expeditiously as possible. With the aforesaid direction, this application is finally disposed of.