Dismissed

Chandrika Yadav AND10 Ors. v. State of U.P. and 2 Ors.

Allahabad HC7 Mar 2018A482/2542/2018

Case brief

AI extract

What is this about?

The High Court refused to quash FIRs and the impugned orders in a criminal case. The court held that disputed facts regarding the deceased's admission date could not be adjudicated under Section 482 Cr.P.C., upholding the Magistrate's cognizance under Section 304 IPC. However, directions were issued for the applicants to surrender for bail within 30 days.

What did the court decide?

Counsel for the applicants: Dr. C.P. Upadhyay, Anup Kumar Pandey; Counsel for the Opposite Party: G.A.

Chandrika Yadav AND10 Ors. Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 52

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Case :- APPLICATION U/S 482 No. - 2542 of 2018

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Applicant :- Chandrika Yadav And10 Ors Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Dr. C.P. Upadhyay,Anup Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rajul Bhargava,J.

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Heard Dr. C.P. Upadhyay, learned counsel for the applicants and learned A.G.A.

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The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 22.10.2016 passed by Judicial Magistrate, Kasaya, Kushinagar and order dated 1.5.2017 passed by C.J.M., Kushinagar in Case Crime no. 574 of 2015 and 731 of 2015, P.S. Kuberasthan, District Kushinagar.

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The contention of the counsel for the applicants is that the applicant no. 11 had lodged first information report against 16 named accused regarding incident dated 29.4.2015, which is said to have taken place at 8.35 am. The said case was registered as Case Crime no. 533 of 2015 and after investigation charge-sheet was submitted on 17.6.2015, u/s 147, 148, 149, 323, 504, 506, 308 IPC and 7 Crl. Law Amendment Act. It is next submitted that an application was moved by opposite party no. 3 u/s 156(3) Cr.P.C. for registration of F.I.R. against the applicants and by the order of the Magistrate F.I.R. was registered as Case Crime no. 731 of 2015, P.S. Kuberasthan. Another F.I.R. regarding same incident was lodged by one Subhawati opposite party no. 2 and the same was registered as Case Crime no. 574 of 2015 on 8.5.2015. Both F.I.R. being counter version were clubbed together during investigation and counter version case was investigated and the impugned chargesheet no. 184/15 and 138/15 annexed as annexure-4 was submitted.

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Learned Magistrate based on the material collected during investigation that prima facie offence u/s 304 IPC is attracted and took cognizance of the said offence and besides other offence mentioned in the chargesheet. It is contended that learned Magistrate committed grave error of law and illegality by taking cognizance u/s 304 IPC inasmuch as during investigation I.O. had arrived at a conclusion that on account of certain discrepancy in the date of admission of the deceased had concluded that the deceased did not receive injury in the incident as alleged by the prosecution and therefore cognizance of the offence u/s 304 IPC taken by the Magistrate is wholly illegal and against the record.

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Per contra learned AGA vehemently opposed the submission made by counsel for the applicants and submitted that merely on account of some mistake in mentioning date of admission of the deceased in the hospital which too was on account of change of date by itself was not sufficient to draw an inference that the deceased did not sustain injury in the episode in which both side had lodged cross F.I.R. in which time, date, place and other material fact are common. He further 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. The

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submissions made by learned counsel for the applicants relate to disputed question of facts, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. and as per the settled law learned Magistrate was not bound by the opinion formed by the I.O. and learned Magistrate rightly took cognizance for offence u/s 304 IPC beside other sections in the chargesheet. 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 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.

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The submissions made by learned A.G.A. have force.

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The prayer for quashing the orders is refused.

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However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

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For a period of 30 days from today or till the applicants surrender and apply for bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid directions, this application is finally disposed of.

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Order Date :- 7.3.2018 Dhirendra/

Chandrika Yadav AND10 Ors. v. State of U.P. and 2 Ors.

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Chandrika Yadav AND10 Ors. v. State of U.P. and 2 Ors.

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