State of U.P v. Jai Prakash Upadhyay), arising out of Case Crime No

1. Heard Mr. Hitesh Pachori, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Jai Prakash Upadhyay, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the entire criminal proceeding along with the charge sheet dated 16.04.2020 and the cognizance along with summoning order dated 20.10.2020, in Case No. 661245/2020 [State of U.P. Vs. Jai Prakash Upadhyay), arising out of Case Crime No. 0428/2018, under Section 406, 419, 420 I.P.C., Police Station Shahganj, District Agra, pending in the Court of Ld. Special Chief Judicial Magistrate, Agra. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further entire proceedings of Case No. 661245/2020 [State of U.P. Vs. Jai Prakash Upadhyay), arising out of Case Crime No. 0428/2018, under Section 406, 419, 420 I.P.C., Police Station Shahganj, District Agra, pending in the Court of Ld. Special Chief Judicial Magistrate, Agra, during the pendency of the present application before this Hon'ble Court, and/or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, otherwise the applicant shall suffer irreparable loss and injury."

4. At the very outset, the learned A.G.A. has raised a preliminary objection by contending that present application has been filed after expiry of a period of more than 4 years from the date of Cognizance Taking Order/Summoning Order i.e. 20.010.2020 passed by Court below. As such, present application is hopelessly barred by delay/laches. Since the delay/laches in filing the present application have not been sufficiently explained, therefore, the present application is not maintainable. Consequently, the same is liable to be dismissed on the ground of delay/laches.

5. It is next contended by the learned A.G.A. that applicant had earlier approached this Court by means of an Application U/s 482 Cr.P.C. No. 13200 of 2021 (Jai Prakash Upadhyaya Vs. State of U.P. and Another). The same was disposed of finally, vide order dated 06.09.2021. For ready reference, the order dated 06.09.2021 is reproduced herein below:- "Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. This application under Section 482 Cr.P.C. has been with the prayer to quash the charge-sheet dated 16.04.2020, cognizance order dated 16.04.2020 and entire proceedings of Case Crime No. 428 of 2018, under Sections 406, 419, 420 I.P.C., Police Station Shahganj, District Agra. As per the allegations made in the FIR, it is alleged that with the collusion of the applicant, accused persons had sold plot no.49, area 200 square yards to opposite party no.2 for sale consideration of Rs.10,04,000/-. The said plot, infact was owned by one Yudhisthir, however, the applicant alongwith one Shishram by impersonating some other person as Yudhisthir, got the sale deed executed in favour of opposite party no.2 and when the opposite party no.2 asked to return back his money, the applicant flatly refused the same. Learned counsel for the applicant has submitted that from the allegations made in the FIR, no offence is made out against the applicant 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, entire proceedings be quashed. Per contra, learned AGA has submitted that 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 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. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Supreme Court in 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. Moreover, the applicant had already been directed to be released on bail and he has got right of discharge under Sections 239, 245 or 227 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court. At this stage, this Court is not in a position to weigh the factual matrix of the case properly and accused has a right to file a discharge application before the trial court and the trial court may decide his discharge application, The prayer for quashing the charge sheet, cognizance order and entire proceedings is therefore refused. is no evidence against him. However, it is directed that in case the applicant files an application for discharge before the court below, the same be considered expeditiously in accordance with law after hearing the public prosecutor. With the aforesaid directions, this application under Section 482 CrPC is finally disposed of."

6. On the above premise, the learned A.G.A. submits that since present application is the second application for the same relief, therefore, the same is not maintainable. Consequently, the same is liable to be dismissed.

7. When confronted with above, the learned counsel for applicant could not overcome the same.

8. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the preliminary objections raised by the learned A.G.A. are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. In view of above, no good ground exists to entertain the present application.

9. As a result, the present application fails and is liable to be dismissed.

10. It is, accordingly, dismissed with cost of Rs. 25,000/-.

11. The amount of cost shall be deposited by applicant with the Court below within a period of one month from today. The amount so deposited shall be used by the District Judge, Agra for the welfare of the Bar. In case of default, the applicant shall be taken into custody and shall not be released on bail till the cost is deposited or the trial gets concluded, whichever is earlier. In case, the applicant has been enlarged on bail, the bail granted to applicant shall stand cancelled after period of one month from today, in case, the cost is not deposited by applicant within aforesaid period.

12. Registry is directed to send a copy of this order to Court concerned. VINAY KUMAR High Court of Judicature at Allahabad Order Date :- 14.2.2025/Vinay

1. Heard Mr. Hitesh Pachori, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Applicant-Jai Prakash Upadhyay, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the entire criminal proceeding along with the charge sheet dated 16.04.2020 and the cognizance along with summoning order dated 20.10.2020, in Case No. 661245/2020 [State of U.P. Vs. Jai Prakash Upadhyay), arising out of Case Crime No. 0428/2018, under Section 406, 419, 420 I.P.C., Police Station Shahganj, District Agra, pending in the Court of Ld. Special Chief Judicial Magistrate, Agra. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further entire proceedings of Case No. 661245/2020 [State of U.P. Vs. Jai Prakash Upadhyay), arising out of Case Crime No. 0428/2018, under Section 406, 419, 420 I.P.C., Police Station Shahganj, District Agra, pending in the Court of Ld. Special Chief Judicial Magistrate, Agra, during the pendency of the present application before this Hon'ble Court, and/or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, otherwise the applicant shall suffer irreparable loss and injury."

4. At the very outset, the learned A.G.A. has raised a preliminary objection by contending that present application has been filed after expiry of a period of more than 4 years from the date of Cognizance Taking Order/Summoning Order i.e. 20.010.2020 passed by Court below. As such, present application is hopelessly barred by delay/laches. Since the delay/laches in filing the present application have not been sufficiently explained, therefore, the present application is not maintainable. Consequently, the same is liable to be dismissed on the ground of delay/laches.

5. It is next contended by the learned A.G.A. that applicant had earlier approached this Court by means of an Application U/s 482 Cr.P.C. No. 13200 of 2021 (Jai Prakash Upadhyaya Vs. State of U.P. and Another). The same was disposed of finally, vide order dated 06.09.2021. For ready reference, the order dated 06.09.2021 is reproduced herein below:- "Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. This application under Section 482 Cr.P.C. has been with the prayer to quash the charge-sheet dated 16.04.2020, cognizance order dated 16.04.2020 and entire proceedings of Case Crime No. 428 of 2018, under Sections 406, 419, 420 I.P.C., Police Station Shahganj, District Agra. As per the allegations made in the FIR, it is alleged that with the collusion of the applicant, accused persons had sold plot no.49, area 200 square yards to opposite party no.2 for sale consideration of Rs.10,04,000/-. The said plot, infact was owned by one Yudhisthir, however, the applicant alongwith one Shishram by impersonating some other person as Yudhisthir, got the sale deed executed in favour of opposite party no.2 and when the opposite party no.2 asked to return back his money, the applicant flatly refused the same. Learned counsel for the applicant has submitted that from the allegations made in the FIR, no offence is made out against the applicant 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, entire proceedings be quashed. Per contra, learned AGA has submitted that 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 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. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Supreme Court in 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. Moreover, the applicant had already been directed to be released on bail and he has got right of discharge under Sections 239, 245 or 227 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court. At this stage, this Court is not in a position to weigh the factual matrix of the case properly and accused has a right to file a discharge application before the trial court and the trial court may decide his discharge application, The prayer for quashing the charge sheet, cognizance order and entire proceedings is therefore refused. is no evidence against him. However, it is directed that in case the applicant files an application for discharge before the court below, the same be considered expeditiously in accordance with law after hearing the public prosecutor. With the aforesaid directions, this application under Section 482 CrPC is finally disposed of."

6. On the above premise, the learned A.G.A. submits that since present application is the second application for the same relief, therefore, the same is not maintainable. Consequently, the same is liable to be dismissed.

7. When confronted with above, the learned counsel for applicant could not overcome the same.

8. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the preliminary objections raised by the learned A.G.A. are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. In view of above, no good ground exists to entertain the present application.

9. As a result, the present application fails and is liable to be dismissed.

10. It is, accordingly, dismissed with cost of Rs. 25,000/-.

11. The amount of cost shall be deposited by applicant with the Court below within a period of one month from today. The amount so deposited shall be used by the District Judge, Agra for the welfare of the Bar. In case of default, the applicant shall be taken into custody and shall not be released on bail till the cost is deposited or the trial gets concluded, whichever is earlier. In case, the applicant has been enlarged on bail, the bail granted to applicant shall stand cancelled after period of one month from today, in case, the cost is not deposited by applicant within aforesaid period.

12. Registry is directed to send a copy of this order to Court concerned. VINAY KUMAR High Court of Judicature at Allahabad Order Date :- 14.2.2025/Vinay