Dismissed

Umesh Dubey and Another v. State of Up and Another

Allahabad HC8 Oct 2018A482/34140/2018

Case brief

AI extract

What is this about?

Applicants filed an application under Section 482 Cr.P.C. seeking quashing of criminal proceedings in a mining case, alleging their charge was based on villagers' statements after the first accused was exonerated. The Court held that prima facie offence was established and proceedings could not be quashed, dismissing the application but directing surrender for bail consideration.

What did the court decide?

Bail application to be filed within 30 days after surrendering to the court below.

Umesh Dubey and Another Vs State of Up and Another — Quashing and FIR | Allahabad HC (2018)

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Court No. - 46

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Case :- APPLICATION U/S 482 No. - 34140 of 2018

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Applicant :- Umesh Dubey And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Fakhruzzaman 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 applicants, the learned AGA for the State and perused the record.

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The instant application has been filed by the applicants with a prayer to quash the proceedings of Case No.465 of 2017 arising out of case crime no.411 of 2017, under Sections 379,411 IPC and Section 4/21 Mines and Miniral (Development and Regulation) Act, 1957 and Section 3/57/70 of U.P. Khanij (Parihar) Niyamavali, 1963, P.S. Sipri Bazar, District Jhansi pending in the court of Additional Chief Judicial Magistrate-I, District Jhansi.

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The contention of the counsel for the applicants is that initially an FIR was lodged against one, Tulsi that he was involved in illegal mining. Later on during investigation, the complicity of the applicants disclosed by the villagers and merely on their statement, they have been charge sheeted and Tulsi who was named in the FIR has been exonerated by the investigating officer. Therefore, the investigating officer has submitted the charge sheet against the applicants in perfunctory manner whereby the court below has taken cognizance of the offence in a pedantic manner without applying judicious mind as no prima facie offence is made out against the applicants.

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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 applicants as such the innocence of the applicants cannot be adjudged at the pre trial stage. Hence, the applicants do 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 applicants.

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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

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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 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 applicants have ample opportunity to raise all the objections at the appropriate stage.

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However, the applicants are 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 in the light of Brahm Singh and Ors. Vs. State of U.P. and Others, reported in 2016 (7) ADJ 151.

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In case the applicants fail to surrender within the stipulated period the court below shall take appropriate action against them.

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Order Date :- 8.10.2018 M. Tariq

Umesh Dubey and Another v. State of Up and Another

Case brief

What is this about?

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Umesh Dubey and Another v. State of Up and Another

Case brief

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