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2019 DIGILAW 1240 (ALL)

Om Prakash v. State of U. P.

2019-05-08

UMESH CHANDRA TRIPATHI

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JUDGMENT : Umesh Chandra Tripathi, J. Order in Application u/s 482 Cr.P.C. 1. Heard the arguments advanced by Shri Dinesh Mishra, Shri Jata Shankar Pandey, Shri Amit Kumar Srivastava and Shri Ashish Mishra, learned counsel appearing on behalf of the applicants and in opposition, Shri Dhiraj Kumar Pandey and Shri Ajay Kumar Shukla, learned counsel appearing for the private-opposite party and learned Additional Government Advocate appearing for the State of Uttar Pradesh. 2. Perused the materials available on record. 3. This application under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Code’) has been filed on behalf of the applicants with a prayer to quash the impugned charge-sheet (Charge Sheet No. 1 of 2017) dated 17.03.2017, the impugned cognizance order as well as the entire proceedings of Sessions Trial No. 209 of 2017, State vs. Om Prakash and Others, arising out of Case Crime No. 361 of 2016, under Sections 147, 323, 504, 506, 379 of the Indian Penal Code, 1860 (for short ‘IPC’) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘Act 1989’), Police Station-Shivkuti, District-Allahabad, pending in the court of Special Judge (SC/ST (P.A.) Act), Allahabad. 4. As per prosecution version, informant/opposite party no. 2 Sunil Kumar is a lawyer by profession, practising in District-Allahabad. On 26.10.2016, he was returning to his residence from the court. At about 05.00 P.M. as soon as he reached at Phaphamau Bridge, accused-applicants namely Om Prakash, Harsu Prasad, Dharayandra Kumar Mishra alias Lavkush, Rohit Kumar, Ashutosh Mishra and Suraj and two unknown persons stopped him and hurled caste-based abuses at him. They also assaulted him and his companion Shivji by blunt object danda (wooden stick), kicks and fists. His companion Shivji and other persons present on the spot rescued him. The accused threatened the informant to face dire consequences if he dares to lodge a report against them. 5. On the information of informant Sunil Kumar, a first information report was lodged on the same day i.e. 26.10.2016 at 06.25 P.M. at Police Station-Shivkuti, District-Allahabad, under Sections 147, 323, 504, 506, 379 of IPC and Section 3(2)(v) of Act, 1989. 6. Informant Sunil Kumar and his companion Shivji were medically examined at T.B. Sapru Hospital, Allahabad on the same day at 06.45 P.M. and 07.00 P.M. respectively. 7. After investigation, the police submitted charge-sheet against the accused-applicants. 8. 6. Informant Sunil Kumar and his companion Shivji were medically examined at T.B. Sapru Hospital, Allahabad on the same day at 06.45 P.M. and 07.00 P.M. respectively. 7. After investigation, the police submitted charge-sheet against the accused-applicants. 8. Learned counsel for the applicants contended that opposite party no. 2 Sunil Kumar had lodged the F.I.R. against the applicants maliciously, with false allegation, only with the ulterior motive of harassing them. He next contended that the applicants had purchased a residential plot from one Bhola Nath through registered sale-deed. Prabhat Kumar Mishra, who is also a lawyer by profession, practising in District Allahabad, was willing to purchase the plot purchased by the applicants from Bhola Nath. Accordingly, enmity developed between the applicants and Prabhat Kumar. Opposite party no. 2 Sunil Kumar and Prabhat Kumar Mishra, practising lawyers, share a common chamber. Before this occurrence, Prabhat Kumar Mishra had lodged three false cases against the applicants. After this occurrence, Prabhat Kumar Mishra has filed two more F.I.Rs. against applicant no. 2 Harsu Prasad and his family members. Sonu, the domestic servant of Prabhat Kumar Mishra, has also lodged one false F.I.R. against applicant no. 1 Om Prakash and his family members. In the present case, informant/opposite party no. 2 Sunil Kumar has lodged the F.I.R. in collusion with Prabhat Kumar Mishra. 9. Per contra, learned counsel for opposite party no. 2 and learned A.G.A. for the State vehemently opposed the prayer made and arguments thereof advanced by learned counsel for the applicants and contended that the material on record is sufficient justifying filing of charge-sheet and so taking cognizance is the aforesaid case against the applicants. Accordingly, there is no infirmity or illegality in the impugned order passed by the court below. 10. Relying on the judgment of Hon'ble Apex Court in Vineet Kumar and Others vs. State of Uttar Pradesh and Another, 2017 (13) SCC 369 , Sundar Babu and Others vs. State of Tamil Nadu, 2009 (14) SCC 244 and Pepsi Foods Ltd. and Others vs. Special Judicial Magistrate and Others, 1998 (5) SCC 749 learned counsel for the applicants contended that malicious prosecution may be quashed in exercise of extraordinary jurisdiction under Section 482 of the Code. I do not agree with the aforesaid submission of learned counsel that this criminal proceeding is instituted maliciously and may be quashed by this Court in exercise of its extraordinary jurisdiction. 11. I do not agree with the aforesaid submission of learned counsel that this criminal proceeding is instituted maliciously and may be quashed by this Court in exercise of its extraordinary jurisdiction. 11. From the perusal of material on record, it is evident that enmity exists between the applicants and Prabhat Kumar Mishra due to land dispute. Informant/opposite party no. 2 Sunil Kumar, fellow lawyer of Prabhat Kumar Mishra, may have interest in favouring Prabhat Kumar Mishra and Sonu, the domestic help of Prabhat Kumar Mishra. But only because of the fact that Sunil Kumar is interested in favouring Prabhat Kumar Mishra and Sonu, it cannot be said that Sunil Kumar has lodged the present F.I.R. maliciously, with false allegation. The F.I.R. was lodged on the same day. The informant Sunil Kumar and his companion Shivji were also medically examined at T.B. Sapru Hospital, Allahabad on the same day. As per medical report, both of them sustained injury. After investigation, the police submitted charge-sheet against the applicants. 12. Accordingly, at this stage, it cannot be said that informant/opposite party no. 2 Sunil Kumar has lodged the F.I.R. against the applicant maliciously, with false allegation. 13. In view of above, prayer to quash the impugned charge-sheet, the impugned cognizance order as well as the entire proceedings in the aforesaid case is hereby refused. 14. In the result, the instant application stands rejected. 15. However, none of the aforesaid offences against the applicants is punishable with imprisonment for more than seven years. The police has submitted charge-sheet against the applicants. All the materials relevant for disposal of bail application are available on record before the trial court/court concerned. 16. Accordingly, considering the facts and circumstances of the case and in view of order passed by this Court in Smt. Sakeena and Another vs. State of U.P. and Another, 2018 (2) ACR 2190 it is directed that in case the applicants file their bail application and also pray for interim bail, their prayer for interim bail shall be considered and decided on the same day and the regular bail shall be decided thereafter by affording an opportunity of hearing to the victim or his/her dependent as per the mandate of Section 15A(5) of Act, 1989. 17. For a period of 60 days from today or till the applicants surrender and apply for bail, whichever is earlier, no coercive measure shall be adopted against them.