Disposed

Brijesh Kumar and Another v. State of U.P. and Another

Allahabad HC19 Jul 2019A482/23920/2013

Case brief

AI extract

What is this about?

This is a Criminal M.P. No. 482 application seeking quashing of criminal proceedings under various IPC sections. The court refused the quash prayer as disputed facts exist and prima facie cognizable offence is made out. The court granted one month for the applicants to approach for discharge while restraining coercive action for 30 days.

What did the court decide?

Prayer for quash refused; one month time given to seek discharge; coercive action stayed for 30 days.

Brijesh Kumar and Another Vs State of U.P. and Another — Cheating and Forgery | Allahabad HC (2019)

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Court No. - 65 Case :- APPLICATION U/S 482 No. - 23920 of 2013 Applicant :- Brijesh Kumar And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sunil Kumar Pathak,Ashok Pandey,Badri Narayan Sharma,Surendra Prasad Sharma Counsel for Opposite Party :- Govt. Advocate,Anand Kumar Singh

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Hon'ble Dinesh Kumar Singh-I,J.

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Heard Sri Sunil Kumar Pathak, learned counsel for the applicant and Sri Anand Kumar Singh, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.

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The present application u/s 482 Cr.P.C. has been filed with a prayer to quash the further proceeding in Case No. 813 of 2011, under Section 419, 420, 467, 468, 471, 452, 394, 354, 323, 504, 506, 427, 120B of IPC, P.S. George Town, District Allahabad, pending in the court of J.M., Allahabad.

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It has been argued by the learned counsel for the applicants that on 05.07.2010 an NCR was lodged by one Suman Bhatt, wife of Sri Umesh Chandra Bhatt, against Smt. Anita Bhatt and Dinesh Chandra Bhatt under Section 323, 504 and 506 I.P.C., whereafter both the parties were challaned under Section 107/116 I.P.C. Thereafter, O.P. No. 2 moved an application under Section 156(3) before C.J.M. Allahabad. After hearing on the said application, the case was directed to be registered under Sections 419, 420, 467, 468, 471, 452, 394, 354, 323,504, 501, 427, 120B IPC at P.S. George Town. After investigation in this matter charge-sheet has been submitted by I.O. without application of mind and without considering the evidence on record properly. He has further argued that the accused applicant No. 1 is Captain in the Army, who was not on the place of occurrence on the alleged date of occurrence. He was out on his duty and with respect to that he has pointed out several documents also.

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On the other hand, learned counsel for the O.P. No. 2, has vehemently opposed quashing of the proceedings stating that both accused applicants were present on the place of occurrence on the date when the same happened and whatever evidence has been relied upon by the learned counsel for the applicants is not credible.

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Learned A.G.A. has also vehemently opposed the quashing of the proceedings.

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I have gone through the F.I.R. In para 19 of it, incident is stated to have taken place on 06.08.10 when in absence of the husband of O.P. No. 2, accused applicants along with other co-accused came there in order to evict the O.P NO. 2 from her house and when she resisted her eviction, she was abused and was threatened to be killed and a pressure was exerted upon her that she should sell house to the accused persons. After investigation the charge-sheet has been submitted in this case against the 08 accused including the present accusedapplicants, who are claiming to be not present on the scene of occurrence on the

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date of incident. Since the entire evidence which was collected by the I.O. i.e. charge-sheet, is not annexed, it cannot be determined at this stage as to whether there was sufficient evidence on record or not to summon the accusedapplicants. The same would involve appreciation of evidence which cannot be done in proceedings under Section 482 Cr.P.C.. It cannot be denied that on the basis of allegations and the evidence on record, cognizable offence is not made out against the accused applicants.

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From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicants. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9 . The disputed defense of the accused cannot be considered at this stage.

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The prayer for quashing the proceedings is refused.

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However, one month's time is allowed to accused-applicants to appear before court and seek discharge placing all the arguments which have been raised before this court. If any such application is moved within the said time, the same would be disposed of in accordance with law. Till 30 days, no coercive action shall be taken against the accused-applicants, but if applicants do not move application within 30 days, the court shall take coercive action.

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With the above direction, application u/s 482 Cr.P.C. is disposed of.

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Order Date :- 19.7.2019/A.P. Pandey

Brijesh Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

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Brijesh Kumar and Another v. State of U.P. and Another

Case brief

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