Sarvar Ali and Others Vs State of U.P. and Another

Court No. - 34

Case :- APPLICATION U/S 482 No. - 15119 of 2006

Applicant :- Sarvar Ali And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Pathak,Rakesh Pathak Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Sudhir Agarwal,J.

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Heard Sri Rakesh Pathak, learned counsel for applicants and learned A.G.A. for State.

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This application under Section 482 Cr.P.C. has been filed praying for quashing of summoning order dated 06.09.2005 passed by Chief Judicial Magistrate, Allahabad as well as further proceedings in Complaint Case No. 13519 of 2004 (Smt. Kanij Phatima vs. Sarvar Ali and others), under Section 498-A, 406 IPC and 3/4 Dowry Prohibition Act pending in the Court of Special Chief Judicial Magistrate, Allahabad.

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After going through the complaint and others documents, I am of the view that at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicants. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :

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" 15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in

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the complaint or not . In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint . In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

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16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

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17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties . That stage is yet to come in this case." (emphasis added)

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Recently, above view has been reiterated by Apex Court in Criminal Appeal No.175 of 2020 (Stat of Madhya Pradesh vs. Yogendra Singh Jadaun and Another) decided on 31.01.2020.

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No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.

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The application lacks merit and is accordingly dismissed.

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Interim order, if any, stands vacated.

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Order Date :- 28.2.2020 KA

Sarvar Ali and Others v. State of U.P. and Another

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Sarvar Ali and Others v. State of U.P. and Another

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