Dismissed

Ashu Yadav @ Aashish v. State of U.P. and Another

Allahabad HC7 Feb 2018A482/3200/2018

Case brief

AI extract

What is this about?

Hon'ble Aniruddha Singh, J. rejected an application under Section 482 Cr.P.C. seeking to quash a charge-sheet regarding fraud allegations. The Court held that the case does not fall under categories laid down in State of Haryana Vs. Bhajan Lal for quashing and that disputed facts require trial court adjudication.

What did the court decide?

Prayer for quashing of charge-sheet and stay of further proceedings refused and rejected.

Ashu Yadav @ Aashish Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2018)

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Court No. - 22

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Case :- APPLICATION U/S 482 No. - 3200 of 2018

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Applicant :- Ashu Yadav @ Aashish Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Purushottam Dixit Counsel for Opposite Party :- G.A.

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Hon'ble Aniruddha Singh,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the record.

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The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the charge-Sheet dated 6.6.2017 under Sections 420, 467, 468, 471, 406 IPC, Police Station Quarshi, District Aligarh arising out of Case Crime No. 1007 of 2015 in Criminal Case No. 288 of 2017(State vs. Ashu Yadav @ Ashish Yadav and others) pending before CJM, Aligarh and stay further proceedings in the aforesaid case.

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According to prosecution case, FIR was lodged against Ashu Yadav @ Aashish Yadav, Subhash Yadav, Arvind Yadav, Ramveer Singh and Dipendra Singh who are property dealers alleging that they fraudulently sold plot of Dharmveer Singh in favour of Smt. Sunita Varshneya, complainant and her sister for Rs.3,30,000/- and Rs.2,75,00,000/-, though the plot was earlier purchased by Meena Devi and Raj Kumar.

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During investigation, Investigating Officer recorded statements of complainant & witnesses and submitted charge sheet before the competent Court who took cognizance.

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The contention of learned counsel for the applicant are that no offence against the applicant is disclosed and the present prosecution case has been instituted with malafide intention for the purposes of harassment.

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Learned A.G.A. has opposed by contending that all the submissions made by the leaned counsel for the applicant relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.

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Considered the rival submissions made by the parties.

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The submission made by learned counsel for the applicant calls for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the

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submissions made on points of law can also be more appropriately gone into by the trial court in this case.

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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 the recent being A.R.C.J. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348. Therefore, this Court does not deem it proper to have a pre-trial before the actual trial begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge by moving a proper application for the said purpose before the trial court and he is free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by them before this Court in this application.

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In the case of L. Raja Krishna Reddy v. Satwik Drugs Ltd., Hyderabad, 1999 Cr.L.J. 4865(AP) it was held that the High Court in exercise of its inherent jurisdiction would not make any roving inquiry into the questions of fact and record any findings. Paragraph 5 and part of paragraph 6 are quoted below:-

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"5. This Court's inherent jurisdiction under Section 482 of the Code of Criminal Procedure (for short 'the Code') is well defined. The power of quashing a First Information Report or criminal proceeding has to be sparingly exercised by the Court with due regard to the guidelines laid down in this behalf. It is an extraordinary power that can be exercised by this Court only to prevent abuse of the process of any Court or otherwise to secure the ends of Justice. The Apex Court had laid down in State of Haryana v. Bhajan Lal , the categories of cases in which the First Information Report and the criminal proceedings may be quashed. They are:

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(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

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(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within

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the purview of Section 155(2) of the Code;

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(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

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(iv) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

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(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

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(vi) Where there is an express legal bar engrafted in any of the provisions of the Cose or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; and

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(vii) Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is mataciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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It is settled law that this Court in exercise of its inherent jurisdiction under Section 482 of the Code would not make any rovings inquiry into the questions of fact and record any findings. It is the duty of the of the trial Court...."

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Perusal of record shows that case of applicant does not fall in any of the conditions (i) to (vii) mentioned in case of Haryana v. Bhajan Lal (supra) so that it may be quashed.

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In the case of Maheswari Oil Mill v. State of Bihar, 1978 Cr.L.J. 659(Pat) it was held that the High Court will not enter into enquiry of disputed facts and thereafter hold in favour of the accused.

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Applicant has opportunity to challenge the order of cognizance taken by the Magistrate in revision before the competent Court. He has also right to make an application before the trial Court under

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Section 239 Cr.P.C. for discharge. Hence alternative remedy is also available in law for the applicant. Offences under Section 406, 420 IPC are cognizable and non-bailable.

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In the case of Hamida vs. Rashid, (2008) 1 SCC 474 , it was held that ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of justice.

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Accordingly the prayer for quashing the charge-sheet as well as stay of further proceedings of the aforementioned case is refused.

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This application under Section 482 Cr.P.C. is rejected.

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Order Date :- 7.2.2018 P.P.

Ashu Yadav @ Aashish v. State of U.P. and Another

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Ashu Yadav @ Aashish v. State of U.P. and Another

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