Court No. - 93

Case :- APPLICATION U/S 482 No. - 30484 of 2021

Applicant :- Anil And 3 Others

Opposite Party :- State Of U.P.And Another

Counsel for Applicant :- Amar Nath Tiwari

Counsel for Opposite Party :- G.A.

Hon'ble Syed Aftab Husain Rizvi,J.

1. Heard learned counsel for the applicants and learned AGA

for the State and perused the record.

2. This criminal misc. applicant under section 482 Cr.P.C. has

been filed to quash the entire proceeding of Case No.10323 of

2021 (State Vs. Anil and others), under sections 323, 504, 427,

IPC, Police Station Rudrapur, District Deoria, as well as charge

sheet dated 03.04.2020 and cognizance order dated 07.09.2021,

arising out of Case Crime No.382 of 2019, pending in the court

of Judicial Magistrate, Court No.11, District Deoria.

3. In brief, the facts are that opposite party no.2 lodged an FIR,

registered as Case Crime No.382 of 2019, under sections 323,

354, IPC on 03.12.2019 against the applicants in regard to

incident dated 29.11.2019. After investigation the charge sheet

has been submitted under sections 323, 504, 427 IPC.

4. Learned counsel for the applicant submitted that victim in her

statement under section 161 Cr.P.C. has said that her neighbor

were digging foundation on her land and when she opposed and

tried to inform the police they badly beaten her and tore her

clothes. The informant has also made similar allegation. In her

statement under section 164 Cr.P.C., the victim again repeated

her statement, as recorded under section 161 Cr.P.C., Thereafter,

investigating officer again recorded further statement of victim

on 24.03.2020, in which she has stated that due to land dispute

the said incident has occurred, in which applicant beaten her,

abuses her and in the marpeet her clothes were torn. The

applicants have not outraged the modesty of the victim.

Investigating officer after investigation has submitted the

charge sheet under sections 323, 504, 427, IPC. Learned

counsel for the applicant contended that no offence under

section 427 IPC is made out, as no damage has been caused to

any government or public property. He also contended that

offence under sections 323 and 504, IPC are not cognizable and

hence it will come within the purview of section 2(d) of Cr.P.C.

5. Learned AGA submitted that on the basis of evidence

collected during investigation, charge sheet has been submitted

by the investigating officer, for the offence under sections 323,

504, 427, IPC. The investigating office has already omitted

section 354 IPC on the basis of evidence. A cognizable case is

made out, as section 427 IPC is cognizable, hence there is no

occasion for application of section 2(d) of Cr.P.C. He further

contended that the learned Magistrate being satisfied with the

material available in the case diary has taken cognizance of the

offence under sections 323, 504, 427, IPC.

6. The FIR was initially lodged under sections 323 and 354 IPC.

The investigating officer has recorded the statements of the

informant, victim and other witnesses and collected other

material and on the basis of it the investigating officer has come

to conclusion that prima-facie there is sufficient evidence for

offence under sections 323, 504, 427, IPC and had submitted

the charge sheet accordingly. The learned Magistrate on the

aforesaid charge sheet has taken cognizance.

7. At this stage there is no material on the basis of which it can

be concluded that no offence under section 427, IPC is made

out. So there is no illegality or infirmity in the impugned

summoning order. There is no sufficient ground to quash the

charge sheet or the proceedings of criminal case. Criminal misc.

application under section 482 Cr.P.C. lack merits and is liable to

be dismissed.

8. Accordingly, the criminal misc. application under section 482

Cr.P.C. is dismissed.

9. However, it is directed that in case the applicants surrender

before the court below and apply for bail, the same s