In an application under Section 482 Cr.P.C to quash a non-bailable warrant, the court held that prima facie offence is disclosed. The petition was dismissed, with direction to the applicant to surrender and apply for bail within 30 days.
Application for quashing dismissed; Applicant directed to surrender and apply for bail within 30 days.
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Court No. - 81
Case :- APPLICATION U/S 482 No. - 7946 of 2021
Applicant :- Shiva @ Pradeep Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
Heard Sri Sanjay Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant application has been filed by the applicants with a prayer to quash the impugned non-bailable warrant order dated 6.1.2021 passed by the learned Additional District and Sessions Judge, F.T.C., Court No. 1, Fatehpur in S.T. No. 61 of 2020, arising out of Case Crime No. 122 of 2019, under Sections 41, 411, 413, 419, 420 IPC, P.S. Dhata, District Fatehpur, pending in the court of learned Additional District and Sessions Judge, F.T.C. Court No. 1, Fatehpur.
The contention of the learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.
Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicant. The innocence of the applicant cannot be adjudged at the pre trial stage. Therefore, the applicant does not deserve any indulgence.
From the perusal of the materials on record and looking into the facts of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicant.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:-(i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and (iv) Zandu Pharmaceutical Works Ltd.
Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168 , it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of the entire criminal proceeding and charge sheet as well as cognizance order is refused. There is no merit in this application filed under Section 482 Cr.P.C. The applicant has ample opportunity to raise all the objections at the appropriate stage.
However, the applicant is directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.
In case the applicant fails to surrender within the stipulated period, the court below shall proceed in accordance with law.
With the aforesaid observations, this application is finally disposed of.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
The concerned Court/Authority/Official shall verify the
authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 20.7.2021 A.P. Pandey
2 issues framed by the court
Whether the prayer to quash the non-bailable warrant order under Section 482 Cr.P.C. should be allowed.
Whether the allegations in the FIR prima facie disclose the commission of an offence.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
Shiva @ Pradeep Yadav
State of U.P.
Shamim Ahmed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
