Dismissed

Shyam Lal and Others v. State of U.P. and Others

Allahabad HC12 Mar 2019A482/13907/2004

Case brief

AI extract

What is this about?

In a Section 482 Cr.P.C. application to quash criminal proceedings for cheating and criminal breach of trust, the High Court refused the prayer, holding that disputed facts preclude quashing. The Court directed the applicants to surrender and apply for bail within 60 days to prevent coercive action.

What did the court decide?

The quashing prayer was refused; if applicants surrender and apply for bail within 60 days, no coercive action will be taken.

Shyam Lal and Others Vs State of U.P. and Others — Criminal Trial and Appeal | Allahabad HC (2019)

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Reserved

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Court No. - 17

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Case :- APPLICATION U/S 482 No. - 13907 of 2004

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Applicant :- Shyam Lal And Others Opposite Party :- State Of U.P. And Others Counsel for Applicant :- I.K. Chaturvedi Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Suresh Kumar Gupta,J.

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This application has been filed with a prayer to quash the criminal proceeding pending before the learned Judicial Magistrate, Attarra District Banda in Criminal Case No.543/IX/2003 initiated against the applicants on the basis of charge sheet dated 6.7.2003 submitted by the I.O. in Case Crime No.C-9/03, under Sections 406, 420 IPC, Police Station Attarra, District Banda and further requested to quash the charge-sheet dated 06.07.2003.

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Brief facts of the case is that the opposite party no.3Kusumbai filed an application under Section 156 (3) Cr.P.C against the applicants with a prayer to direct the police station concerned to register the case and investigate the matter. Learned Magistrate quashed the order on 08.05.2003, directing the opposite party no.2, Station Officer, Police Station Attarra, District Banda to register and investigate the case. As per order of the learned Magistrate, a case was registered against the applicants on 26.05.2003, under Sections 406 and 420 IPC in Police Station Attarra, District Banda. After registration of the aforesaid case, Investigating Officer completed the investigation and submitted the charge-sheet against the applicants under Sections 406 and 420 IPC on 06.07.2003 and an order was passed by the learned Magistrate summoning the accused applicants. Opposite party no.3, Kusumbai, is the daughter of the applicant no.1, applicant no.2 is the mother of applicant no.3 and applicant no.4 is the relative of the applicant no.3.

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Learned counsel for the applicants stated that the F.I.R. was lodged with ulterior motive and mala-fide intention. Earlier the opposite party no.3 filed a complaint under Sections 147, 148, 452, 323, 504 and 506 IPC against the applicants with Criminal Case No.772/9/2001 with an allegation that she had gone to her parents' house in the month of August 1996 and her all the jewelries were pledged by applicant no.4 to obtain the amount with regard to the employment of her real brother and ultimately the aforesaid Jewelry were misappropriated and never handed over to her and due to that the relations between the parental family becomes strained and due to this, the accused-applicants came to her in-laws house and subjected to her marpeet by slapping with abusing and threatening of her life. In the aforesaid complaint case, the learned Trial Court acquitted the applicants and others on 05.07.2003, so, opposite party no.3 gave a different story non-consisting with the version laid down in the earlier complaint. F.I.R. against the applicants has been registered after thought and consultation causing inordinate delay without any plausible explanation. During the investigation, no direct and indirect evidence has been collected by the investigating officer in support of the said story and

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solely relying upon the statements of the aforesaid three witnesses, the charge-sheet with mala-fide intention with the collusion of the in-laws of the opposite party no.3. Presently, non-bailable warrant against the applicants has already been issued. Learned Magistrate has taken cognizance arbitrarily and mechanically without going through the evidence collected by the investigating officer during the investigation, hence, to prevent the miscarriage of justice and to secure the justice with request to quash the further criminal proceedings and to quash the charge-sheet dated 06.07.2003. 4. I have heard learned counsel for the parties and perused the material on record.

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Learned counsel for the applicants contended that due to malicious intention, the opposite party no.3 filed this application against the applicants. One more case which was filed by the opposite party no.3 against the applicants under Sections 147, 148, 323, 504, 452, IPC was decided on 05.07.2003 on an application filed under Section 156 (3) Cr.P.C which was submitted by opposite party no.3 on 26.04.2003 and the case was registered on 06.05.2003, under Sections 406 and 420 IPC. So, this case was registered two months prior to the decision of Criminal Case No.772 of 2001, under Sections 147, 147, 323, 504, 452 IPC. Learned counsel for the applicants further contended that in previous case, opposite party no.3 stated that in August, 1996, she was worn Jewelry and she had gone to her parental house, where her all the jewelry which were worn by the opposite party no.3 was pledged by her parents. On the other hand, in this case, she has clearly stated that the date of occurrence is 07.05.1997 in which the opposite party no.3 Kusumbai handed over all the Jewelry to the applicants and pledged them by saying that Rs.50,000/- is needed for the employment of her brother. After repeated demand of pledged Jewelry, the applicants refused to return the Jewelry which was handed over by the opposite party no.3.The contention of learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.

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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. All the submission made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. 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

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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. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

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The prayer for quashing the entire proceedings is refused.

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However, it is provided that if the applicants appear and surrender before the court below within 60 days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the law propounded by Hon'ble Apex Court . For a period of 60 days from today or till the disposal of the application for grant of 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 :- 12.3.2019 m.a.

Shyam Lal and Others v. State of U.P. and Others

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Shyam Lal and Others v. State of U.P. and Others

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