Amlesh Sharma @ Kunnu Sharma Vs State of U.P Thru. Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2023:AHC-LKO:49720

Court No. - 15

Case :- CRIMINAL APPEAL No. - 2192 of 2023

Appellant :- Amlesh Sharma @ Kunnu Sharma Respondent :- State Of U.P Thru. Prin. Secy. Home Lko. And Another Counsel for Appellant :- Abhishek Singh Pawar,Arun Kumar Ojha

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Counsel for Respondent :- G.A.

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Hon'ble Shamim Ahmed,J.

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Heard learned counsel for the appellant as well as Sri S.P. Tiwari, learned A.G.A.-I for the State and perused the record.

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The instant Criminal Appeal under Section 14-A(1) of the S.C./S.T. Act has been moved on behalf of the appellantAmlesh Sharma @ Kunnu Sharma with a prayer to quash the summoning order dated 01.03.2023 passed by learned Special Judge, S.C./S.T. Act, Lucknow in S.T. No.1268/2023, Case Crime No.89/2022, under Sections 323, 504 I.P.C. and Section 3(1)Da, Dha S.C./S.T. Act, Police Station Bijnaur, District Lucknow as well as charge sheet no.01 of 2022 submitted in the aforesaid case alongwith the entire proceedings in pursuance thereof.

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The contention of the learned counsel for the appellant is that no offence against the appellant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.

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Per contra, the learned AGA has contended that from the allegations made in the FIR, prima facie offence is made out against the appellant. The innocence of the appellant cannot be adjudged at the pre trial stage. Therefore, the appellant does not deserve any indulgence.

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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 appellant.

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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

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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.

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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.

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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 charge sheet/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 made for quashing is refused. The appellant has ample opportunity to raise all the objections at the appropriate stage.

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The Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 was pleased to observe as under:-

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"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:

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"Categories/Types of Offences

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A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

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B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

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C) Offences punishable under Special Acts containing stringent provisions for bail likeNDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.

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D) Economic offences not covered by Special Acts.

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Requisite Conditions

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1) Not arrested during investigation.

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2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

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(No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)

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CATEGORY A

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After filing of chargesheet/complaint taking of cognizance

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a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.

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b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.

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c) NBW on failure to failure to appear despite issuance of Bailable Warrant.

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d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

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e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

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CATEGORY B/D

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On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."

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CATEGORY C

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Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.

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4. Needless to say that the category A deals with both police cases and complaint cases.

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5. The trial Courts and the High Courts will keep in mind the

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aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.

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6. We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions."

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Thus, without commenting anything on the merits of the case the present appeal moved on behalf of the appellant is finally disposed of in terms that the appellant may move an appropriate regular bail application before the trial court within 30 days from today and if such an application is moved within the period stipulated herein-before, the trial court shall be under an obligation to dispose of the same strictly, in accordance with the law as laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra) after hearing the Public Prosecutor.

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Order Date :- 28.7.2023 Saurabh

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Digitally signed by :- SAURABH VERMA High Court of Judicature at Allahabad, Lucknow Bench

Amlesh Sharma @ Kunnu Sharma v. State of U.P Thru. Prin. Secy. Home Lko. and Another

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Amlesh Sharma @ Kunnu Sharma v. State of U.P Thru. Prin. Secy. Home Lko. and Another

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