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2018 DIGILAW 447 (ALL)

Puneet Tandon v. State of U. P.

2018-02-19

REKHA DIKSHIT

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JUDGMENT : REKHA DIKSHIT, J. 1. Heard Mr. Nadeem Murtaza, learned counsel for the petitioner and Mr. G.D. Bhatt, learned A.G.A. for the State. 2. This petition has been filed for quashing of proceedings of Case No. 1352 of 2009 (State v. Puneet Tandon) under Sections 379 IPC and 4/10 of U.P. Protection of Trees Act, pending before the Judical Magistrate-I, Lucknow and the order dated 25.02.2009, whereby the petitioner has been summoned as an accused. 3. Learned counsel for the petitioner has submitted that the petitioner and his family were tenant of respondent No. 2 in house no.C-1639, situated in Rajajipuram, Lucknow. Some dispute regarding ownership of the house arose due to which father of the petitioner filed a case on 24.04.2007 being Misc. Case No. 37 of 2007 under Section 30 of Rent Control Act for depositing the rent of the house. On 03.12.2007 a suit for permanent injunction registered as Regular Suit No. 74 of 2007 was filed by his father in which he obtained injunction against his dispossession and further a suit for arrear of rent and ejectment was filed by the brother of respondent No. 2 being SCC Suit No. 27 of 2008 in the court of Judge, Small Causes, Lucknow. 4. Learned counsel for the petitioner has further submitted that there were two teak trees outside of the house in question which fell down on electric wire due to heavy storm on 19.09.2008, consequently the officials of Electricity Department had to cut them but respondent No. 2 lodged a first information report against the petitioner and his father under Section 448, 379 IPC and 4/10 U.P. Protection of Trees Act on 11.10.2008 at police station Talkatora, District Lucknow. It has been alleged in the first information report that on 13.09.2008 the accused persons have cut the aforesaid two teak trees and have sold the same. 5. After investigation, charge-sheet against the petitioner has been submitted on 23.11.2008. It has further been argued that, the offence under Section 379 IPC is made out as the trees were within the premise of the house but were situated on footpath. Learned Magistrate has summoned the petitioner by means of impugned order dated 25.05.2009. Aggrieved by the said order, the present petition has been filed for quashing of the proceedings. 6. It has further been argued that, the offence under Section 379 IPC is made out as the trees were within the premise of the house but were situated on footpath. Learned Magistrate has summoned the petitioner by means of impugned order dated 25.05.2009. Aggrieved by the said order, the present petition has been filed for quashing of the proceedings. 6. On the other hand, learned A.G.A. has contended that 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 petitioner. It is contended that offence under Section 379 IPC requires factual appraisal of the evidence to come at a conclusion, which cannot be done at this stage under Section 482 Cr.P.C., 1973 However, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under the provisions of Section 482 Cr.P.C., 1973 7. Considered the rival contentions of the parties and perused the record. 8. Ordinarily a defence of accused though plausible cannot be taken into consideration for exercise of said jurisdiction. The Court at this stage would not enter into the disputed question of fact. It, however, does not mean that the documents of unimpeachable will not be considered at any cost for the purpose of finding out as to whether continuation of the criminal proceeding would amount to an abuse of process of court or that the first information report is lodged for causing mere harassment to the accused. In the present case, the charge-sheet has been filed after due investigation and recording of statement of complainant and the witnesses which corroborated the alleged incident against the petitioner. At this stage, the Court cannot discharge the petitioner of the said liability unless the parties are given opportunity to lead the evidence, it is not possible to come at a definite conclusion whether any offence under Section 379 IPC is made out or not. 9. 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. 9. 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 he is not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. 10. In the instant case, it is to be decided as to where the trees were situated and any offence under Sections 379 IPC and 4/10 U.P. Protection of Trees Act could have been committed or not and for this factual position it has to be placed before the court which may lead towards its proper adjudication. The legal principles and the facts are intertwined and cannot be separated without evidence led by the parties. 11. In view of above, the prayer for quashing the proceedings of the aforesaid case is refused. The petition sans merits and is hereby dismissed.