This court dismissed an application under Section 482 Cr.P.C. seeking quashing of a summons. It held that prima facie case existed based on record inquiries, refused quashing, but directed disposal of the bail application under settled law.
Application dismissed. Bail application directed to be considered and decided.
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Court No. - 23
Case :- APPLICATION U/S 482 No. - 9165 of 2019
Applicant :- Manish Tiwari Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajendra Prasad Shukla Counsel for Opposite Party :- G.A.
Hon'ble Rajendra Kumar-IV,J.
Heard Sri Rajendra Prasad Shukla, learned counsel for the applicant and learned AGA for the State.
This application under Section 482 Cr.P.C. has been moved by accused-applicant Manish Tiwari for quashing the summoning order dated 19.1.2016 passed by Additional Chief Judicial Magistrate, Court No. 10, Varanasi in Complaint Case No. 1040 of 2015 (Narendra Kumar Goyanka vs. Manish Tiwari), under Sections 452, 504, 506 I.P.C., P.S. Sigra, District Varanasi and further to quash subsequent proceeding thereof.
Learned counsel for the applicant submits that no case under Sections 452, 504, 506 I.P.C. is made out against the applicant. He has been falsely implicated in the malicious litigation for the purposes of harassment. It is further contended that opposite party no. 2 has filed factious complaint against the applicant without any reason and complaint has been filed as a counter blast. He pointed out certain documents and statements in support of his contention. It is further argued by learned counsel for the applicant that admittedly, applicant is residing out side the jurisdiction of trial court and mandatory provision of Section 202 Cr.P.C. has not been complied with.
Per contra learned AGA appearing for State opposed the submissions made for the applicant.
In Abhijit Pawar v. Hemant Madhukar Nimbalkar and another, (2017) 3 Supreme Court Cases 528, Supreme Court has observed as under :-
"23. Admitted position in law is that in those cases
where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22.6.2006 by adding the words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction". there is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a faroff places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment."
It reveals from the record that a complaint being Complaint Case No. 1040 of 2005 has been filed by the complainant / opposite party no. 2 against the applicant under Sections 452, 504, 506 I.P.C. The Magistrate, after recording the statement under Section 200 Cr.P.C. and making an inquiry under Section 202 Cr.P.C. by recording the statement of witnesses, namely, Pramod Kumar Tiwari and Harshit Goyanka, finding prima facie evidence and sufficient ground for proceeding against the accused-applicant, summoned him for facing trial.
From perusal of material on record and looking to the facts of the case, at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at Bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Supreme Court in Cases of R.P. Kapur v. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana v. Bhajan Lal, 1992 S.C.C. (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 S.C.C. (Cr.) 192 and Zandu Pharmaceutical Works Ltd. v. Mohd.
Saraful Haq and another (para-10) 2005 S.C.C. (Cr.) 283.
I do not see any good ground for quashing the same and prayer is refused.
However, it is directed that bail application of the accused-applicant shall be considered and decided in view of settled law laid down by Supreme Court and the law laid down by Division Bench of this Court in Brahm Singh & others Vs. State of U.P. and others, 2016 (7) ADJ 151.
In view thereof, application is finally disposed of.
Order Date :- 14.3.2019 Manoj
3 issues framed by the court
Whether an offence under Sections 452, 504, 506 IPC is made out against the applicant at this stage.
Whether the summons issued were liable to be quashed on ground of mandatory provision of Section 202 Cr.P.C. not being complied with.
Whether an open bail application should be directed to be considered for the accused-applicant.
Colour shows how this judgement treated each authority
Abhijit Pawar v. Hemant Madhukar Nimbalkar and anotherFollowed¶9
Abhijit Pawar v. Hemant Madhukar Nimbalkar and another, (2017) 3 Supreme Court Cases 528
R.P. Kapur v. State of PunjabReferred¶13
R.P. Kapur v. State of Punjab, A.I.R. 1960 S.C. 866 · Who else cites this
State of Haryana v. Bhajan LalReferred¶13
State of Haryana v. Bhajan Lal, 1992 S.C.C. (Cr.) 426 · Who else cites this
State of Bihar v. P.P. SharmaReferred¶13
State of Bihar v. P.P. Sharma, 1992 S.C.C. (Cr.) 192 · Who else cites this
Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and anotherReferred¶13
Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (para-10) 2005 S.C.C. (Cr.) 283 · Who else cites this
Brahm Singh & others Vs. State of U.P.Referred¶16
Brahm Singh & others Vs. State of U.P. and others, 2016 (7) ADJ 151
3 provisions across 2 enactments
Manish Tiwari
State of U.P.
Rajendra Kumar
Manoj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
