High Court
Case Details
Neutral Citation No. - 2023:AHC:156531 Court No. - 86 Case :- APPLICATION U/S 482 No. - 28332 of 2023 Applicant :- Farina Nisar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shambhavi Nandan Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Legal Reasoning
14. At this stage, only prima facie case is to be seen in the light of the law laid down by the Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 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 another, (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. The court is not required to hold a mini trial at this stage by marshalling the material on record. 15. In view of the foregoing discussion, the impugned order dated 01.07.2023 passed by learned Magistrate based on the charge-sheet is just proper and legal and do not call for any interference at this Stage. 16. The present application u/s 482 Cr.P.C. is devoid of merit and is accordingly dismissed. Order Date :- 4.8.2023 Subham Digitally signed by :- SUBHAM KUSHWAHA High Court of Judicature at Allahabad
Arguments
1. Heard learned counsel for the applicants, learned AGA for the State and perused the record. 2. The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash charge-sheet dated 03.06.2023 and cognizance order dated 01.07.2023 as well as entire proceedings of Criminal Case No. 100809 of 2023, arising out of Case Crime No. 17 of 2023, under Sections 323, 504 and 506, 34 IPC, Police Station Sector-142 Noida, District Gautambudh Nagar. 3. As per the allegations made in the FIR, it is alleged that on 03.02.2023, while opposite party no.2 victim was sitting in the common area of Vivante Complex, where she used to reside, suddenly a lady came there and asked her to stand up and started hurling abuses. On objection being raised by her, the lady left on the pretext of calling her sister to teach the victim a lesson. After about ten minutes, she along with another lady, applicant no.2 came there and they both started hurling abuses and tried to assault the victim. It is further alleged that Farina, applicant no.1 took out a knife and asked the victim to leave else, she would be done to death by the knife. When the victim opposite party no.2 tried to leave the place of incident, then the accused persons snatched her golden chain and keys of her flat and threatened her to set her home on fire and wipe out her entire family 4. On the basis of the said allegations, an FIR was registered vide Case Crime no. 17 of 2023, under Sections 323, 504, 506, 392/34 IPC. On the basis of the said FIR, the Police recorded the statement of the victim and other witnesses and after concluding the investigation, submitted charge-sheet dated 03.06.2023 against the applicants. 5. On the basis of the said charge-sheet, the learned Magistrate has taken cognizance of the offence and summoned the applicant to face trial under Sections 323, 504 and 506/34 IPC vide order dated 01.07.2023. 6. Being aggrieved by the said order, the present application u/s 482 Cr.P.C. has been filed. 7. Learned counsel for the applicants has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicants and the present case has been instituted with a malafide intention for the purpose of harassment. He has pointed out certain documents and statements in support of his contention, as such, impugned charge sheet, cognizance order as well as entire proceedings be quashed. 8. Learned counsel for the applicants has further submitted that while taking cognizance of the offence, the learned Magistrate has not considered the statement of all the witnesses and only on the basis of the statement of the victim Savita Tyagi, the cognizance has been taken and the applicants have been summoned to face trial and therefore, the order taking cognizance is bad in law and liable to be set aside. 9. In order to buttress his argument, learned counsel for the applicants has relied upon the case of India Carat Pvt. Ltd. Vs. State of Karnataka and Another reported in (1989) AIR 885. 10. Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, impugned charge sheet, cognizance order as well as entire proceedings cannot be quashed. 11. Having considered the rival submissions made by learned counsel for the parties and taking into consideration the material available on record, prima facie offence, complained of, are clearly made out against the applicants. In fact, on the basis of the allegations made in the FIR, the Police has thoroughly investigated the incident and has reached to a conclusion that offence under Sections 323, 504 and 506/34 IPC is clearly made out against the applicants. The material in the charge-sheet along with statement of the first informant has been perused by the Magistrate and, on that basis, he has taken cognizance of the offence under Section 190(1)(b) Cr.P.C. and has summoned the applicants to face trial under Sections 323, 504, 506/34 IPC, which order is just proper and legal and do not call for any interference. 12. The decision cited by the learned counsel for the applicant is clearly distinguishable on facts. In the case cited by the learned counsel for the applicant after investigation, a final report has been submitted by the police. Yet on the basis of the material collected during the course of investigation, the learned Magistrate has taken cognizance under Section 190(1)(b) of Cr.P.C., however, in the present case, the police after investgation submitted the charge- sheet against the applicants, on the basis of which, cogniznace has been taken and therefore, the facts of the case cited above are not applicable to the facts of the present case and are clearly distinguishable. 13. 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 applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.