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2020 Supreme(All) 184
IN THE HIGH COURT OF ALLAHABAD
SURESH KUMAR GUPTA, J.
Smt. Dhanrawati Devi And Ors - Appellant
Versus
State of U.P. and Another - Respondent
Application U/s 482 No. 738 of 2020
Decided On : 10-01-2020
Advocate Appeared:
For the Appellant : Narendra Deo Shukla, Pankaj Kumar Tiwari
Headnote:
Indian Penal Code, 1860 – Sections 323, 504, 506, 354, 147 – Code of Criminal Procedure, 1908 – Sections 164, 190, 482 – FIR filed alleging of committing offences under sections 323, 504, 506, 354, 147 IPC – Charge sheet is filed – Cognizance taken by Judicial Magistrate – Applicants was ordered by Judicial Magistrate to summon before Court – This application has been filed by applicants to quash chargesheet and also to quash cognizance as well as summoning order passed by Judicial Magistrate – Held, It cannot be said that no offence is made out against applicants – All submission made at bar relates to 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 light of the law laid down by 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. –Applicants have got right of discharge according to provisions prescribed in Cr.P.C. as case may be through proper application for said purpose and he is free to take all submissions in the said discharge application before Trial Court –Prayer for quashing cognizance order as well as summoning order and charge sheet hereby refused – Application Disposed of. (Paras 22, 23, 25)
Facts of Case:
FIR filed alleging of committing offences under sections 323, 504, 506, 354, 147 IPC – Charge sheet is filed – Cognizance taken by Judicial Magistrate – Applicants was ordered by Judicial Magistrate to summon before Court – This application has been filed by applicants to quash charge-sheet and also to quash cognizance as well as summoning order passed by Judicial Magistrate.
Findings of Court:
It cannot be said that no offence is made out against applicants – All submission made at bar relates to 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 light of the law laid down by 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. –Applicants have got right of discharge according to provisions prescribed in Cr.P.C. as case may be through proper application for said purpose and he is free to take all submissions in the said discharge application before Trial Court –Prayer for quashing cognizance order as well as summoning order and charge sheet hereby refused.
Result: Application Disposed of
JUDGMENT :
1. Vakalatnama filed today by Sri Rajesh Kumar Pandey Advocate on behalf of the informant, is taken on record.
2. This application has been filed by the applicants to quash the chargesheet dated 29.10.2019 being criminal case No. 119 of 2019 (State of U.P. Vs. Prashant Tiwari and others) under Sections 323, 504, 506, 354, 147 IPC, P.S. Sujanganj, District Jaunpur, arising out of case crime No. 115 of 2019 and also to quash the cognizance as well as summoning order dated 18.11.2019 passed by Judicial Magistrate-Ist, Jaunpur.
3. Heard learned counsel for the applicants, learned counsel for the informant and the learned AGA.
4. Learned counsel for the applicants submitted that the learned Judicial Magistrate passed the impugned cognizance as well as summoning order on 18.11.2019 without application of mind. Thus, the order dated 18.11.2019 is unreasoned, unspecific, illegal and arbitrary and, thus, not sustainable in the eye of law. Learned trial court passed the order in very mechanical manner and in a routine way without discussion of allegation contained in the FIR and statement under Section 161 Cr.P.C. of the prosecution witness. Hence, the cognizance order passed by the Magistrate is an abuse of the process of the Court so cognizance order, is likely to be quashed.
5. Learned counsel for the applicants submitted that no offence at all under sections 323, 504, 506, 354, 147 IPC is made out against the applicants and the statement under Section 164 Cr.P.C. of the opposite party No. 2 is inherently, improbable and absolutely false and fabricated. In fact, she has not received any injury in the alleged occurrence but she has alleged that she was beaten by the applicants and further submitted that there is no any direct or indirect evidence and no any documentary evidence with regard to objectionable photograph of the opposite party No. 2 and others to support the prosecution version. It is further submitted that the husband of the opposite party N. 2, namely, Vivek Kumar Tiwari is a practising Advocate in Civil Court, Jaunpur and police official of the P.S. Sujanganj are under influence of him. On the influence of the husband of PW-2 Sujanganj Police registered the false and frivolous cases against the applicant. Further submits that the applicant used to live in Bombay to earn his livelihood and opposite party No. 2 and her husband lives in village and want to grab entire movable and immovable property of the applicants and further submitted that there is also civil dispute between applicant-side and opposite party No. 2-side. On account of civil dispute, the relation between both the parties are restrained and shower and on account of these reasons, impugned FIR has been lodged only for harassment of the applicants. On this ground learned counsel for the applicants submitted that charge sheet against the applicants is false and frivolous and vexatious so the charge sheet submitted by the Investigating Officer, is liable to be quashed.
6. First of all, I considered whether the cognizance order is passed by the Magistrate is liable to be quashed or not in this regard learned counsel for the applicants submitted that learned Magistrate passed the cognizance order without application of his mind.
7. Learned counsel for the petitioner relied upon paragraph Nos. 14 and 15 of the judgment of the Apex Court in the case of Fakhruddin Ahmad Vs. State of Uttranchal decided on 5th September, 2008 reported in [2008 (17) SCC 157] which are quoted below:-
"14. From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by `taking cognizance'. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.
15. Nevertheless, it is well settled that b
