Disposed

Somlata and 3 Ors. v. State of U.P. and Another

Allahabad HC2 Dec 2019A482/43692/2019

Case brief

AI extract

What is this about?

The single judge refused to quash the charge sheet, holding that prima facie case sufficiency under Section 482 CrPC depends on evaluating witness statements which cannot be done at this stage. The application was disposed of with directions for bail consideration if the applicant appears within 30 days.

What did the court decide?

Prayer for quashing refused. Application disposed of with directions for bail consideration upon appearance within 30 days.

Somlata and 3 Ors. Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 81 Case :- APPLICATION U/S 482 No. - 43692 of 2019 Applicant :- Somlata And 3 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Singh,Chandra Prakash Singh Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh-I,J.

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Shri Ashok Kumar Mishra and Shri Akhilesh Kumar Mishra, Advocates, have filed their power on behalf of the opposite party no. 2 in the Court today, the same is taken on record.

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Heard learned counsel for the applicant Shri Ashish Singh and in opposition, learned counsel for opposite party no. 2 Shri Ashok Kumar Mishra and learned A.G.A. for the State Shri Amit Kumar Singh and perused the record.

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This application under Section 482 of Cr.P.C. has been moved on behalf of the applicant with a prayer to quash the Charge Sheet No. 01 of 2019 dated 02.06.2019, arising out of Case Crime No. 193 of 2019, under Sections 420, 467, 468, 471, 506 and 120-B of I.P.C. pending in the court of Chief Judicial Magistrate, Bijnor.

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It is argued by learned counsel for the applicants that the disputed property is owned by accused-applicant no. 1 Somlata, gift of which has been executed by accused-applicant no. 1 in favour of accused-applicant nos. 2 and 3, namely, Rajkumar and Vikas Kumar Jain in the year 2018 and in the said gift deed, accused-applicant no. 4 is the witness. It is further argued that husband of accused-applicant no. 1 had executed one power of attorney in favour of one Dheeraj Kumar Tiwari, who executed sale deed of the same property in favour of opposite party no. 2 Rajiv Kumar Tyagi. The said power of attorney was a forged one, regarding which, cancellation proceedings were moved in the year 2004 by the applicant no. 1 way of filing Civil Suit No. 729 of 2004 (Sushila Kumar and others v. Dheeraj Tiwari and Another), which is still pending, although he had admitted that he has not made any prayer for cancellation of the said deed. It is further argued that though the matter is purely of civil nature, criminal proceedings are initiated against the applicants, which need to be quashed, the same being malicious prosecution.

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On the other hand, learned counsel for opposite party no. 2 has vehemently opposed the prayer for quashing the charge-sheet and has stated that in the power of attorney, the accusedapplicant no. 1 herself was a witness. She knew full well that the said power of attorney was rightly executed and the

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execution of sale deed was also done in accordance with law and yet, gift of the said property has been executed by the accused-applicant no. 1 erroneously.

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In the F.I.R., opposite party no. 2 has recorded the same facts which have been mentioned by learned counsel for the applicants which are contained therein and charge-sheet has been submitted by the I.O. after having recorded the statement of as many as six witnesses. The veracity of the submissions cannot be tested and the evaluation of the statement of the witnesses cannot be made in proceedings under Section 482 of Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Apex Court in cases of R.P. Kapur v. The State of Punjab, AIR 1960 SC 866, State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. v. P.P. Sharma, AIR 1991 SC 1260 and lastly Zandu Pharmaceutical Works Ltd. and Ors. v. 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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In view of above, the prayer for quashing the charge-sheet in the aforesaid case is refused.

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Since the applicant no. 1 is stated to be 80 years of age, it is provided that if she appears and surrenders before the Court within 30 days from today and move an application for bail, the same shall be decided in terms of the settled law laid down by this Court in the case of Amrawati and another v. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. reported in 2009 (3) ADJ 322 (SC) .

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For a period of 30 days from today, no coercive action shall be taken against the applicant no. 1. However, in case the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against her.

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Furthermore, it is provided that the applicant no. 1 may approach the trial court to seek discharge at appropriate stage, if so advised and before the said forum, she may raise all the pleas which have been taken by her here. If such an application is moved, the same shall be disposed of without being influenced by the observation(s) made by this Court.

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With the aforesaid observations/directions, the instant application stands disposed of .

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Order Date :- 2.12.2019/I. Batabyal

Somlata and 3 Ors. v. State of U.P. and Another

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Somlata and 3 Ors. v. State of U.P. and Another

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