High Court
Case Details
Neutral Citation No. - 2023:AHC:98486 Court No. - 68 Case :- APPLICATION U/S 482 No. - 14874 of 2021 Applicant :- Bunda And 8 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Pathak Counsel for Opposite Party :- G.A.,Nanhe Lal Tripathi,Rahul Upadhyay Hon'ble Mrs. Manju Rani Chauhan,J.
Legal Reasoning
Heard Mr. Ajay Kumar Pathak, learned counsel for the applicants, Mr. V.P. Srivastava, learned Senior Advocate assisted by Mr. Nanhe Lal Tripathi, learned counsel for the opposite party no.2, Mr. Amit Singh Chauhan, learned A.G.A. for the State as well as perused the entire material available on record. The present 482 Cr.P.C. application has been filed to quash the cognizance/summoning order dated 05.11.2019 as well as the entire proceedings of Case No.3130 of 2019 (State vs. Bunda and others), arising out of Case Crime No.599A of 2011, under Sections 147, 148, 149, 323, 504, 506, 427, 452, 308 I.P.C., Police Station-Hathras Kotwali, District-Hathras, pending in the Court of Chief Judicial Magistrate, Hathras. Brief facts of the case are that for the incident dated 08.11.2011, an FIR was lodged by Smt. Nafeesa daughter of Raunak Ali against as many as ten named accused persons including the present applicants on 31.12.2011 at about 21:20 hrs., which came to be registered as Case Crime No.0599A of 2011, under Section 395 IPC with the allegations that the opposite party no.2 resides with her brother and nephews in a joint family. On 08.11.2011 at about 07:00 p.m., the opposite party no.2 was to go to Aligarh for fixing the marriage of younger sister of Parvej, hence for the aforesaid purpose, jewellery and cash amount were kept by her for the above purpose. On 08.11.2011 at about 03:30 p.m., when the opposite party no.2 was at her resident, the accused persons came alongwith 8-10 other persons having knife, iron rod and countrymade pistol in their hands and forcibly entering into the house, broke the lock of the room and took away jewellery and cash, details of which are mentioned in the FIR. When the opposite party no.2 alongwith other family members tried to restrain the accused persons from taking away the jewellery as well as cash, all the accused persons assaulted the opposite party no.2 and her family members. Bunda, Amjad and Saido having country-made pistol in their hands, opened fire indiscriminately and accused Saido s/o Raseed sustained firearm injury, which resulted in his death on the spot. The brother of opposite party no.2; Shammi, nephew; Harun and sister-in-law; Smt. Shahnaz also sustained serious injury. On the intervention of nearby shopkeepers, their shops were set on fire. The aforesaid incident was witnessed by the nephew; Imran Parvej Mahruddin and other nearby persons and passers-by. The information about the aforesaid incident was given by some person to the police. Seeing the police officials, the aforesaid accused persons ran away alongwith jewellery as well as cash. It is also alleged that two days prior to the aforesaid incident, hot conversation took place between the accused Rashid and brother of opposite party no.2 regarding purchase of goat. On that very day, Rashid had threatened for dire consequences. Thereafter, when all the injured persons from the side of opposite party no.2 were taken to the police station Kotwali, the accused Rasid and others again attacked causing injury to the persons at the police station. In another incident, the accused persons had committed theft and damaged tailoring shop of brother of opposite party no.2. Thereafter, the injured persons were taken to the hospital for treatment. The condition of nephew of opposite party no.2, namely, Harun was serious due to injury sustained by him. After recovering from the aforesaid incident, present FIR has been lodged. Subsequently, after investigation, final report has been submitted on 11.02.2012 against which protest petition was filed by the opposite party no.2, wherein the concerned Magistrate has directed for further investigation. After investigation, Investigating Officer has again submitted the final report against which the opposite party no.2 has filed protest petition before the court concerned. On the protest petition, the concerned court passed the order dated 05.11.2019 whereby all the applicants have been summoned. Hence, the present case has been filed. Learned counsel for the applicants submits that for the same incident, an FIR has also been lodged by brother of the applicant nos. 1 to 3 against the nephew of the opposite party no.2 and other family members on 08.11.2011 at about 15:45 hrs, which was registered as Case Crime No.599 of 2011, under Sections 147, 148, 149, 302, 307 IPC. Subsequently, the present case has been lodged in order to make a cross case and to exert pressure upon the applicant. He further submits that another application U/s 156(3) Cr.P.C. has been moved by Sammi s/o Raunak Ali (brother of opposite party no.2), wherein the date and time of the incident have been shown as 08.11.2011 at about 03:30 p.m., which resulted in the death of one of the accused persons, Sahido. He further submits that the summoning order has been passed in a mechanical manner without considering the fact that the present case has been lodged for the same incident after a delay of nearly two months without giving any plausible explanation for the same. The aforesaid incident resulted in the death of one person from the side of applicants. He further submits that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purpose of causing harassment. He pointed out certain documents and statements in support of his contention. He, therefore, submits that the summoning order as well as entire proceedings be quashed by this Court as the same is an abuse process of Court. Per Contra, learned A.G.A. for the State as well as learned counsel for the informant/opposite party no.2 has opposed the submissions made by the learned counsel for the applicants by submitting that both the sides have lodged F.I.R.s against each other for the alleged incident, wherein one of the persons, namely, Sahido expired, therefore, the incident is admitted by both the sides, which has resulted the death of Sahido. As regards the other contention regarding application U/s 156(3) Cr.P.C. filed by Sammi, the said application shows about the common incident for which cross FIR has been lodged from both the sides, which has resulted the death of Sahido has happened after the common incident. Therefore, it is clear that it is a cross case. From the side of opposite party no.2, Harun sustained serious injuries. He further submits that all the contentions raised by the applicants' counsel relate to disputed questions of fact. On the basis of material on record after conducting of statutory investigation under Chapter XII Cr.P.C. by the investigating officer, a strong prima facie case is made out against the applicant for the commission of the alleged incident. In support of his case, learned AGA has placed reliance upon the judgments of the Apex Court in the case of Dilbag Rai Vs. State of Haryana & Others reported in AIR 2019 (SC) 693 and Central Bureau of Investigation Vs. Arvind Khanna reported in MANU/SC/1432/2019. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application. This Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:- (i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866, (ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335, (iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222, (iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122, (v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682, (vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454, (vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45, (viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143 and lastly (ix) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; 2021 SCC Online SC 315. In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. The prayer for quashing the impugned summoning order dated 05.11.2019 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage. The present application has no merit and is, accordingly, rejected. Order Date :- 8.5.2023 Jitendra/- Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad