State v. Abhishek Kumar and another
Case Details
Neutral Citation No. - 2024:AHC:108753 Court No. - 77 Case :- APPLICATION U/S 482 No. - 8771 of 2024 Applicant :- Raju Singh Alias Himanshu Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Omar Zamin Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J. 1. List revised.
Legal Reasoning
2. Heard Sri Omar Zamin, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A.-I for the State and perused the record. 3. The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant Raju Singh Alias Himanshu Singh with the following prayers:- "It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the Charge sheet dated 19.09.2023, cognizance order dated 27.09.2023 as well as entire proceeding of Sessions Case No. 2403 of 2023 "State Vs. Abhishek Kumar and another", arising out of Case Crime No. 540 of 2023 U/s 323, 504, 506, 307 Read with Section 34 I.P.C., P.S. Cantt., District Gorakhpur. Pending in the Court of Additional District and Sessions Judge Court No. 12, Gorakhpur. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Sessions Case No. 2403 of 2023 "State Vs. Abhishek Kumar and another", arising out of Case Crime No. 540 of 2023 U/s 323, 504, 506, 307 Read with Section 34 I.P.C., P.S. Cantt., District Gorakhpur. Pending in the Court of Additional District and Sessions Judge Court No. 12, Gorakhpur., during the pendency of the instant application before this Hon'ble Court, and/or pass such other and further order which this Hon'ble Court may deem fit and proper, otherwise the applicant shall suffer irreparable loss and substantial injury." 4. Learned counsel for the applicant submits that the applicant is not named in the F.I.R. It is submitted that implication of the applicant in the present matter surfaced for the first time during investigation in C.D. No. 4 when the Investigating Officer came near the place of occurrence and was inquiring about the incident where he states that some people in a secretive manner informed him that workers of the hotel were involved in it in which they disclosed the name of the applicant. It is submitted that subsequently the name of the applicant and the co-accused Abhishek Kumar as the persons assaulting the injured was disclosed by the co-accused Satish Dwivedi and Ashwani Gupta in their statements recorded during investigation. It is submitted that although the trial court has taken cognizance and summoned the applicant and the other accused person namely Abhishek Kumar for the offences under Sections 323, 504, 506, 307, 34 I.P.C. vide order dated 26.09.2023 but the summoning under Section 307 I.P.C. is totally bad in the eyes of law inasmuch as the injuries allegedly received by the injured Sarvesh Tiwari and Avnish Kumar Pandey were opined to be simple in nature by the doctor, copies of the said injuries reports have been placed before the Court which are annexure no. 3 to the affidavit. It is submitted while placing annexure no. 9 to the affidavit that the alleged injured Sarvesh Tiwari is a hardened criminal and is a habitual offender having being involved in 14 criminal cases. The list of the said cases has been placed before the Court which is at page no. 78 of the paper book. It is submitted that by any stretch no offence under Section 307 I.P.C. would be made out. Learned counsel for the applicant has relied upon the judgements of the Apex Court in the cases of Jage Ram and others vs. State of Haryana: (2015) 11 SCC 366 and Champa Lal Dhakar Vs. Naval Singh Rajput and others: (2019) 4 SCC 146. It is submitted that the proceedings thus are abuse of process of the court and deserve to be quashed. 5. Per contra, learned counsel for the State opposed the prayer for quashing and submitted that in so far as the applicant is concerned, his implication has surfaced in the matter during investigation. It is submitted that on the own arguments of learned counsel for the applicant particularly with regards to the nature of offence and the averments made in paragraph nos. 33, 34, 36 and 38 of the affidavit some or the other offence is made out. It is submitted that it cannot be said that no offence whatsoever is made out so as to call upon the Court to quash the proceedings of the present case. It is submitted that the present application under Section 482 Cr.P.C. is devoid of any merits and deserves to be dismissed. 6. After having heard learned counsels for the parties and perusing the records, it is evident that implication of the applicant has surfaced in the matter during investigation. The arguments of learned counsel for the applicant that looking to the nature of injuries received by the two injured persons, Section 307 I.P.C. will not be made, cannot be a ground for quashing the entire prosecution case. The law as has been held and stands till date is that proceeding cannot be quashed if some or the other offence is made out. A proceeding can be quashed only if no offence whatsoever is made out after considering the entire material collected during investigation. In the present case there are two injured persons who have been medically examined. The two judgements of the Apex Court which have been placed by the learned counsel for the applicant deal with the situation with regards to the nature of injuries and the appropriate section for which accused has to be charged. The present case does not fall in any of the categories of the cases mentioned for quashing as has been held by the Apex Court in the case of M/s Neeharika Infrastructure (P) Ltd. v. State of Maharashtra : (2021) 19 SCC 401. No ground for interference is made out. 7. Accordingly, the present Criminal Misc. Application U/S 482 Cr.P.C. is dismissed. Order Date :- 2.7.2024 #Naresh# (Samit Gopal,J.)