Dismissed

Digvijay Nath Pandey and 3 Others v. State of U.P. and Another

Allahabad HC4 Jul 2022A482/5424/2022

Case brief

AI extract

What is this about?

In an application u/s 482 Cr.P.C. to quash criminal proceedings alleging assault, the High Court held that prima facie an offence is made out based on available evidence. The Court refused quashing, stating disputed factual questions must be adjudicated by the Trial Court.

What did the court decide?

Prayer for quashing of charge sheet, summoning order, and entire proceedings is refused; application dismissed.

Digvijay Nath Pandey and 3 Others Vs State of U.P. and… — Property and Title | Allahabad HC (2022)

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Court No. - 80

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Case :- APPLICATION U/S 482 No. - 5424 of 2022

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Applicant :- Digvijay Nath Pandey And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Satyendra Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Satyendra Pandey, learned counsel for applicants and learned A.G.A. for State.

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Present application under Section 482 Cr.P.C. has been filed challenging the charge sheet dated 06.11.2020 submitted in Case Crime No. 90 of 2020 under Section 323, 452, 504, 506 and 325 I.P.C. P.S.-Ahirauli Bazar, District-Kushinagar, Cognizance Taking Order/Summoning Order dated 09.02.2021 passed by Additional Chief Judicial Magistrate, Kushinagar in consequential Case No.695 of 2021 (State Vs. Digvijay Nath Pandey and others) under Section 323, 452, 504, 506 and 325 I.P.C. P.S.-Ahirauli Bazar, District-Kushinagar as well as entire proceedings of aforementioned case now pending in the court of Judicial Magistrate, Kushinagar.

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Perused the record.

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4.Record shows that in respect of an incident, which is alleged to have occurred on 24.06.2020, a delayed F.I.R. dated 27.06.2020 was lodged by first informant/opposite party-2, Ramesh Pandey, and was registered as Case Crime No. 90 of 2020 under Section 323, 452, 504, 506 and 325 I.P.C. P.S.Ahirauli Bazar, District-Kushinagar. In the aforesaid F.I.R., four persons namely Digvijay Nath Pandey, Bikas Pandey @ Chhotoo, Prabhat Pandey@ Lakky and Binbda Devi have been nominated as named accused.

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The gravamen of the allegations made in the aforesaid F.I.R.

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is to the effect that on 24.06.2020 at around 11.00 AM. accused persons armed with axe, lathi and danda entered the house of first informant/opposite party-2 and assaulted him with an intention to kill him. The F.I.R. further states that accused Digvijay Nath Pandey assaulted first informant on his head by an axe. On account of above, he sustained injury on his left nose. Prior to the aforesaid F.I.R. dated 27.06.2020, injured Ramesh Pandey was medically examined on 24.06.2020. His Medico Legal Report is on record at page 41 of the paper-book,

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Subsequently, an application dated 22.09.2020 was filed by applicant-1, Digvijay Nath Pandey before District Magistrate, Kushinagar disputing the medico legal report of injured Ramesh Pandey and supplementary medico legal report. Same came to be disposed of by District Magistrate, Kushinagar vide order dated 22.09.2020 directing Chief Medical Officer, Kushinagar to conduct an enquiry as per Rules. Pursuant to above order dated 22.09.2020, a Medical Board was constituted and injured Ramesh Pandey was again medically examined. Thereafter, Chief Medical Officer has submitted a report dated 11.01.2021. However, no fracture was found on the body of injured Ramesh Pandey. For ready reference, same is reproduced herein-under:-

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I. Lacerated wound 3 x.5 cm. left size nose 1 cm. lateral from lip. Nose margin blurred.

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II. Complain of pain route of nose Adv. X-ray nasal bone, right and left nasal bone.

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Investigating Officer proceeded with statutory investigation in terms of Chapter XII Cr.P.C. of above mentioned case crime number. He examined first informant and other witnesses under Section 161 Cr.P.C., who have supported the prosecution story as unfolded in F.I.R. Investigating Officer on the basis of statements of witnesses so examined and other material collected by him during course of investigation, opined to

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submit a cahrge-sheet. Ultimately, Investigating Officer submitted the charge sheet dated 06.11.2020. After submission of aforesaid charge-sheet, cognizance was taken upon same by concerned Magistrate vide Cognizance Taking Order/Summoning Order dated 09.02.2021 passed by Additional Chief Judicial Magistrate, Kasia, DistrictKushinagar in Case Crime No. 90 of 2020 under Section 323, 452, 504, 506 and 325 I.P.C. P.S.-Ahirauli Bazar, DistrictKushinagar,.

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Feeling aggrieved by aforesaid , applicants, who are chargesheeted accused, have now approached this Court by means of present application under Section 482 Cr.P.C.

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Learned counsel for applicants contends that present criminal proceedings are not only malacious but also an abuse of process of the Court. Informant is younger brother of applicant-1. Partition has already taken place between the the parties by meets and bounds as per the family settlement dated 21.02.1990. The said family settlement has been acted upon and the parties are in possession over the land as per their share under the family settlement. Now opposite party-2 is interfering with peaceful possession and occupation of applicant -1 over the land in his share, against which, applicant-1 lodged an F.I.R. dated 17.02.2021 by means of an application under Section 156 (3) Cr.P.C.. It is further contended that in respect of property in question, proceedings under Section 145 Cr.P.C. were initiated but were dropped on the finding that applicant-1 was in continuous possession over the plot in dispute. It is also contended that F.I.R. dated 27.06.2020 has been lodged as part of pressure tactics to gain possession of the land in share of applicants. Father of applicant-1 has already filed an injunction suit being Original Suit No. 1447 of 2020 (Purushottam Pandey

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Vs. Ramdas Pandey and others) which is said to be pending. However, no injunction order has been passed in aforesaid suit. On the aforesaid premise, learned counsel for applicants contends that present criminal proceedings are not only malicious but also an abuse of process of the Court and hence same are liable to be quashed by this Court.

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Per contra, the learned A.G.A. for State has opposed the present application. Learned A.G.A. has invited attention of Court to the Medico Legal Report of injured Ramesh Pandey, which is on record as Annexure-6 to the affidavit. He has also referred to the supplementary Medico Legal Report of injured Ramesh Pandey, which is on record at page 50 of the paper book. On the aforesaid premise, he contends that occurrence in question cannot be ruled out. It is further submitted that once there is an injured and accused deny the occurrence then burden is upon accused to establish as to how injuries came to be sustained by injured. Since the said burden has not been discharged by applicants, therefore, no interference is required by this Court.

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When confronted with above, learned counsel for applicants could not overcome the same.

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Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of material brought on record and looking into 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 the 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 the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State

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of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Pharmaceutic al Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239 or 227/228, or 245 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.

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The prayer for quashing the charge sheet, Cognizance Taking Order/Summoning summoning order as well as proceedings of the aforesaid case is refused.

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In view of the above, present application fails and is liable to be dismissed.

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It is accordingly dismissed.

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Order Date :- 4.7.2022 YK

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Digitally signed by YASHWANT KUMAR Date: 2022.07.07 18:17:46 IST Reason: Location: High Court of Judicature at Allahabad

Digvijay Nath Pandey and 3 Others v. State of U.P. and Another

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Digvijay Nath Pandey and 3 Others v. State of U.P. and Another

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