Single Judge proceedings application under Section 482 Cr.P.C. to quash summoning order. Prayer for liberty to move discharge application and stay coercive action granted while discharge pending.
Liberty to move discharge application within one month; discharge to be decided within three months; no coercive action till disposal.
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Court No. - 12
Case :- APPLICATION U/S 482 No. - 13131 of 2006
Applicant :- Rama Kant And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Mishra Counsel for Opposite Party :- Govt. Advocate,K.M. Mishra,Puneet Bhadauria,Vijay Gautam
Hon'ble Neeraj Tiwari,J.
Heard Sri P. Dixit along with Sri Raj Kumar Mishra, learned counsel for the applicants, learned AGA and Sri Puneet Bhadauria, learned counsel for opposite party no.2 .
The present 482 Cr.P.C. application has been filed to quash the summoning order dated 8.8.2006 passed by Special Judge (D.A.A. Act), Etawah entire proceedings of Complaint Case No. 220 of 2005 (Ram Chandra Vs.Rama Kant and others), under Sections- 395, 397 I.P.C., pending in the court of IInd Additional District and Sessions Judge, Etawah.
Learned counsel for the applicants submits that applicant nos. 3, 4 and 5 have executed the sale deed on 15.4.2005 in favour of applicant nos. 1 and 2 in which applicant no. 6 was also witness. He further submits that earlier the shop was rented to opposite party no. 2 and when applicant nos. 1 and 2 went to take possession of the shop, alleged incident took place on 10.8.2005. He further submits that the present complaint is nothing but to create the pressure upon the applicants for not taking the possession over the shop in question, which is in possession of opposite party no. 2.
Sri Puneet Bhadauria, learned counsel for opposite party no. 2 submits that there are two entirely different question, in fact, in the sale deed, it is stated that possession was given to applicant nos. 1 and 2 in the same position as it was existed on the date of execution of sale deed. He further submits that applicants are very powerful person and want to evict the opposite party no. 2 from his shop with force and ultimately looted the entire goods of the shop after causing injury upon him. He further submits that when the police has refused to lodge FIR, opposite party no. 2 has submitted an application under section 156(3) before C.J.M., Etawah for lodging of FIR. He further submits that C.J.M., Etawah vide order dated 19.9.2005 has directed for lodging of FIR and FIR was lodged on very same day. He further submits that police after lodging the FIR, investigated the matter hurriedly and submitted final report on 30.9.2005.
Thereafter, opposite party no. 2 has filed protest petition before the court below, which was treated as complaint case and after recording statements, summoning order was passed. He further submits that there is no illegality in the order passed by the court below and court has rightly taken the cognizance.
I have perused the record and considered the submissions raised by both sides. In fact, pure factual disputes are involved in the present application. At this stage only prima facie case is to be seen in the 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, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and lastly Amanullah and another Vs. State of Bihar and others, 2016(6) SCC 699.
The prayer for quashing the entire proceeding of the aforesaid case is refused.
At this stage, learned counsel for the applicants has prayed that a liberty may be given to the applicants to appear before the court below through counsel to move discharge application and the court below may be directed to decide the discharge application within the stipulated period. It is further prayed that till the disposal of discharge application, no coercive action may be taken against the applicants.
This application is disposed of with a direction to the court below that in case the applicants appear before the court below through counsel within one month from today and move a discharge application before Magistrate concerned, the same shall be considered and decided in accordance with law within next three months. Till the disposal of discharge application, no coercive action shall be taken against the applicants.
Order Date :- 12.12.2018 Arvind
2 issues framed by the court
Whether liberty to move discharge application and interim protection from coercive action should be granted on refusal to quash FIR.
Whether prima facie case exists to quash summoning order under Section 482 Cr.P.C. in dispute regarding property possession.
Colour shows how this judgement treated each authority
R.P. Kapur Vs. State of PunjabReferred¶10
R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866 · Who else cites this
State of Haryana Vs. Bhajan LalReferred¶10
State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 · Who else cites this
State of Bihar Vs. P.P.SharmaReferred¶10
State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 · Who else cites this
Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful HaqReferred¶10
Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 · Who else cites this
Amanullah and another Vs. State of BiharReferred¶10
Amanullah and another Vs. State of Bihar and others, 2016(6) SCC 699 · Who else cites this
Rama Kant And Others
State Of U.P. And Another
Neeraj Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
