Dismissed

Ashwani Kumar v. State of U.P. and Anr.

Allahabad HC11 Oct 2018A482/34110/2018

Case brief

AI extract

What is this about?

In this application under Section 482 Cr.P.C. to quash criminal proceedings involving Sections 406, 504, 506 IPC, the High Court rejected the plea that allegations were false. Finding that a prima facie offence is disclosed, the Court dismissed the quash prayer, ordered the applicant to surrender and apply for bail within 30 days, and warned of action for failure to comply.

What did the court decide?

Prayer for quashing dismissed; applicant directed to surrender and apply for bail within 30 days.

Ashwani Kumar Vs State of U.P. and Anr. — Quashing and FIR | Allahabad HC (2018)

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Court No. - 46

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Case :- APPLICATION U/S 482 No. - 34110 of 2018

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Applicant :- Ashwani Kumar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Priyanshu Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Naheed Ara Moonis,J.

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Heard learned counsel for the applicant, the learned AGA for the State and perused the record.

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By means of the present application under Section 482 Cr.P.C. the applicant has invoked inherent jurisdiction of this Court with a prayer to quash the criminal proceeding initiated pursuant to the charge sheet No.1 of 2018, dated 15.2.2018 whereupon cognizance has been taken against the applicant in Case No.3933 of 2018 (State of U.P. Vs. Ashwani Kumar) arising out of case crime no.956 of 2017, under Sectios 406,504,506 IPC, P.S. Kotwali, District Bareilly pending in the court of Chief Judicial Magistrate, Bareilly.

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The contention of the counsel for the applicant is that the opposite party no.2 has lodged the FIR against the applicant with absolutely false and concocted allegation when no such incident has ever occurred. The investigating officer has submitted the charge sheet against the applicant in perfunctory manner whereby the court below has taken cognizance of the offence without applying judicious mind as no prima facie offence is made out against the applicant.

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Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicant as such innocence of the applicant cannot be adjudged at the pre trial stage. Hence, the applicant does not deserve any indulgence.

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From the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicant.

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At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R. P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192.

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From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the

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criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.

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The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of proceeding is refused. There is no merit in this application filed under Section 482 Cr.P.C., thus the same is accordingly dismissed. The applicant has ample opportunity to raise all the objections at the appropriate stage.

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However, the applicant is directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.

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In case the applicant fails to surrender within the stipulated period the court below shall take appropriate action against him.

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Order Date :- 11.10.2018 M. Tariq

Ashwani Kumar v. State of U.P. and Anr.

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Ashwani Kumar v. State of U.P. and Anr.

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