Dhirendra Kumar Chaubey and 2 Others Vs State of U.P. and Another

Court No. - 74

Case :- APPLICATION U/S 482 No. - 1321 of 2020

Applicant :- Dhirendra Kumar Chaubey And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Lakshman Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Ram Krishna Gautam,J.

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This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Dhirendra Kumar Chaubey, Karan @ Satyam and Rishabh @ Shivam, with a prayer for setting aside criminal proceeding of Case No.4093 of 2019 (State vs. Dhirendra Chaubey and others), arising out of Case Crime No.483 of 2019, under Sections 147, 323, 504, 506 and 325 of IPC, Police Station-Cholapur, District-Varanasi, including, chargesheet, dated 29.11.2019 and cognizance taking order, in it.

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Learned counsel for applicants argued that first information report was got lodged against applicants with this contention that applicants were filling earth in a well, which was protested, resulting in this occurrence, whereas, in a previous occurrence, it was held that well was situated in the field belonging to the applicants. Hence, no question regarding encroachment or filling of earth in a well by causing encroachment arises. Statement of Medical Officer, recorded, under Section 161 of Cr.P.C., is of this fact that injuries were of 24 hours prior, i.e., it was not in correspondence with alleged date of occurrence, even then, chargesheet has been filed, for offences, as above. It was an accusation with malice. Applicant No.1, being a practicing lawyer, has been falsely implicated with a view to hamper preparation of his daughter's marriage, scheduled in near future. Hence, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.

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Learned AGA, representing State of U.P., has vehemently opposed this Application.

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First information report was got lodged at 12.23 PM, for the occurrence, which occurred at 9.20 AM

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of 27.10.2019, upon a report of Santosh Kumar Chubey, i.e., a very instant report, wherein, names of all the accused-applicants and their role in this occurrence has been narrated. Injured was instantly taken for medical examination and it was conducted at 12.34 PM. There is reference for X- ray for an injury, wherein, it was found to be a fracture of bone. Statement of victim, under Section 161 of Cr.P.C., is fully intact. Hence, chargesheet has been filed on the basis of those injuries.

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Now, under all above facts and circumstances, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to embark upon factual matrix, rather the same is to be seen by the Trial court, during trial, where variance alleged to be in the statement of Medical Officer is also to be seen by the Trial court, but, sufficient ground for filing of chargesheet was there. There was no abuse of process of law.

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Regarding prevention of abuse of process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494, has propounded "To prevent abuse of the process of the Court, High Court, in exercise of its inherent powers under section 482, could quash the proceedings, but, there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in the case of State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1 , Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not". Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.

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In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.

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However, it is directed that if the applicants appear and surrender before the court below

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within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

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For a period of 30 days from today, no coercive action shall be taken against the applicants.

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In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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Order Date :- 23.1.2020

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Dhirendra Kumar Chaubey and 2 Others v. State of U.P. and Another

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Dhirendra Kumar Chaubey and 2 Others v. State of U.P. and Another

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