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2020 DIGILAW 271 (ALL)

Haddish v. State of U. P.

2020-01-23

SURESH KUMAR GUPTA

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JUDGMENT : SURESH KUMAR GUPTA, J. 1. Heard learned counsel for the applicants and learned AGA for the State. 2. The present 482 Cr.P.C. application has been filed to quash the order dated 16.09.2016, passed by Chief Judicial Magistrate, Bansi, District Siddharth Nagar, in criminal case No. 975 of 2015, arising out of case crime No. 274 of 2015, as well as the order dated 02.03.2019, passed by Additional Session Judge, Bansi, District Siddharth Nagar, in Criminal Revision No. 183 of 2016, State vs. Haddish and Others, P.S. Mishraulia, District Siddharth Nagar. It is further prayed that to stay the further proceedings of Criminal Case No. 975 of 2015, case crime No. 274 of 2015, State vs. Haddish and Others, under Sections 419, 420, 406, 504, 506, 352 IPC, pending in the court of Judicial Magistrate, Bansi, District Siddharth Nagar. 3. Learned counsel for the applicants submits that the learned Judicial Magistrate, Bansi, District Siddharth Nagar, has rejected the discharge application filed by the applicants on 16.09.2016, under section 239 Cr.P.C. seeking discharge under section 419, 420, 406, 504, 506, 352 IPC and against the impugned order of learned magistrate rejected the application of discharge from charge levelled against the applicants being aggrieved, the applicants has filed criminal revision before the Additional Sessions Judge, Bansi, District Siddharth Nagar and the Session Judge has also dismissed the revision vide order dated 02.03.2019 filed by the applicants. He further submits that no case is made out against the applicants and the Investigating Officer without collecting sufficient evidence submitted charge sheet against them. He also submitted that the applicants filed complaint case against Station House Officer as well as opposite party no. 2, they have been summoned to face the trial and due to this reason opposite party no. 2 lodged the FIR against the applicants and charge sheet was submitted by the investigating officer against the applicants. He next submitted that money dispute is involved between the applicant and the opposite party no. 2. It is also submitted that the allegations made in the FIR appears to be civil in nature. Facts and circumstances of the case do not constitute the criminal charge against the applicants, hence the whole proceeding is liable to be quashed. 4. He next submitted that money dispute is involved between the applicant and the opposite party no. 2. It is also submitted that the allegations made in the FIR appears to be civil in nature. Facts and circumstances of the case do not constitute the criminal charge against the applicants, hence the whole proceeding is liable to be quashed. 4. Learned AGA vehemently opposed and submitted that the evidence collected by the investigating officer is sufficient to frame the charge against the applicants, hence there is no occasion to quash the proceeding and application under section 482 Cr.P.C. is liable to be rejected. 5. It is almost settled the legal position that at the stage of charge the court is not required to consider pros and cons of the case and to hold an enquiry to find out truth. Marshalling and appreciation of evidence is not in the domain of the court at that point of time; what is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima-facie case for framing a charge against the accused has been made out. Even in a case of grave or strong suspicion charge has been framed. The court has to consider broad probabilities of the case, total effect of the evidence and the documents produced including basic infirmities, if any. If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, but the court should not weigh the evidence as if it were holding trial. Accused can be discharged only when the charge is groundless. 6. In my opinion, the learned Additional Chief Judicial Magistrate as well as Session Court has taken into account all the relevant materials and passed the impugned order in accordance with law. So far as the contention of learned counsel for the applicants is that the criminal prosecution against the applicants could not launch because the allegation imputed against the applicants is civil in nature. 7. So far as the contention of learned counsel for the applicants is that the criminal prosecution against the applicants could not launch because the allegation imputed against the applicants is civil in nature. 7. Hon'ble Supreme Court in Criminal Appeal No. 255 of 2019 Sau Kamal Shivaji Pokarnekar vs. State of Maharashtra and Others held that:- “It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima-facie as has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not. A perusal of the complaint discloses that prima-facie, offences that are alleged against the respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be a civil nature. If the ingredients of the offence alleged against the accused are prima-facie made out in the complaint, the criminal proceedings shall not be interdicted.” 8. 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 applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred 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 Supreme Court in cases of R.P. Kapur vs. State of Punjab, AIR 1960 SC 866 , State of Haryana vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar vs. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq and Others, 2005 SCC (Cr.) 283. Saraful Haq and Others, 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. 9. On aforesaid reason, the application under section 482 Cr.P.C. is devoid of merit and hence the same is dismissed. 10. However, it is provided that if the applicants appear and surrender before the court below within one month from today and apply for bail, then the bail application of the applicants be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme Court. For a period of one month from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.