Disposed

Vijay Kumar and Ors. v. the State of U.P Thru Principal Secy. Home. and Anr.

Allahabad HC3 May 2023/3518/2011

Case brief

AI extract

What is this about?

This order restores a quashing petition dismissed for want of prosecution. After hearing, the court held that sufficiency of material for summoning was established via Section 200/202 Cr.P.C. statements. The application to quash was refused, with directions for expedient bail consideration.

What did the court decide?

Refused prayer to quash summoning order; stayed process if bail applied within four weeks; order dismissed otherwise.

Vijay Kumar and Ors. Vs the State of U.P Thru… — Consumer Protection | Allahabad HC (2023)

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Court No. - 15

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Case :- APPLICATION U/S 482 No. - 3518 of 2011

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Applicant :- Vijay Kumar And Ors. Opposite Party :- The State Of U.P Thru Principal Secy. Home. And Anr. Counsel for Applicant :- Sunil Kumar Singh,Jayshanker Shukla

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Counsel for Opposite Party :- Govt. Advocate,Satya Prakash Pandey,Shailesh Tiwari

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Hon'ble Ajai Kumar Srivastava-I,J. (Order on C.M. Application No.IA/4/2023 (Application for condonation of delay in filing the restoration application)

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Heard Sri Jayshanker Shukla, learned counsel for the applicant assisted by Sri Anurag Dwivedi, Advocate and Sri Alok Saran, learned A.G.A. for the State.

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It is submitted by learned counsel for the applicant that the instant petition came to be dismissed vide order dated 09.12.2020 during the period when the pandemic COVID-19 was at its peak and due to ignorance, the same could not be addressed. Therefore, no application could be filed within the prescribed time of limitation, as such, the delay caused is unintentional.

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In view of the aforesaid as well as the averments made in the affidavit filed in support of the application, the delay in filing restoration application is hereby condoned and the application stands allowed.

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Order on C.M. Application No.IA/5/2023 (Application for recall of order)

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The instant application has been filed to recall the order dated 09.12.2020, whereby the instant petition was dismissed for want of prosecution.

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The cause shown in the affidavit filed in support of the application is found to be sufficiently explained.

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Accordingly, the application is allowed. The petition be restored to its original number.

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(Order on Memo of Application under Section 482 Cr.P.C. No.3518 of 2011)

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Heard Sri Jayshanker Shukla, learned counsel for the applicant assisted by Sri Anurag Dwivedi, Advocate and Sri Alok Saran, learned A.G.A. for the State.

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The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the impugned order dated 18.07.2011 passed by learned Additional Civil Judge, Senior Division-IIIrd / Additional Chief Judicial Magistrate, Faizabad in Complaint Case No.35/2009, under Section 494 I.P.C., Police Station Kotwali Ayodhya, District Faizabad by which the learned court below has rejected the application of the applicants filed under Section 198 Cr.P.C.

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Foremost contention of learned counsel for the applicants is that the summoning order is not in conformity with the statement of the complainant recorded under Section 200 Cr.P.C. and statements of witnesses recorded under Section 202 Cr.P.C. His further submission is that the learned trial Court while passing the summoning order has failed to appreciate the fact that the complainant's version of the incident, as stated in the complaint, is not substantiated by the statement of the complainant recorded under Section 200 Cr.P.C. and the statement of witnesses recorded under Section 202 Cr.P.C. Thus, he has contended that even prima facie no offence is disclosed against the applicants, despite this fact, they have been summoned to face the trial which is nothing but malicious prosecution and an abuse of the process of the Court.

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Per contra, learned A.G.A. controverts the submissions of learned counsel for the applicants on the ground that this is not a stage where minute and meticulous exercise with regard to the appreciation of evidence may be done and truthfulness of the allegations could only be tested in a criminal trial. At this initial stage, the fact of innocence of the applicants can also not be determined.

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Learned A.G.A. further submits that the sufficiency of the material and the test to be applied at the stage of issue of process has been considered in the case of Nupur Talwar v. Central Bureau of Investigation and Another reported in (2012) 11 SCC 465 , wherein it has been reiterated that the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt".

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On the basis of the aforesaid, he submits that no interference with the impugned order and proceedings is warranted at this stage and, therefore, the application is misconceived and is liable to be dismissed.

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Having heard learned counsel for parties and upon perusal of the records, it transpires that the allegations in the complaint have been found to be duly corroborated by the statement made on oath by the complainant during the course of examination under Section 200 Cr.P.C. and also the statements of witnesses recorded during inquiry made by the learned Magistrate under Section 202 Cr.P.C. The impugned order has been passed referring the aforesaid statements recorded under Section 200 Cr.P.C. and under Section 202 Cr.P.C. and only thereafter, impugned summoning order has been passed. Therefore, at this initial stage, no ground for quashing the impugned order and the proceedings of aforesaid case is made out.

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However, the applicants will have an opportunity at the appropriate stage to move an application for discharge taking therein all the pleas factual and legal which may be available to him, in accordance with law including the plea in respect of any statutory Bar also.

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In case, such an application is moved before the learned trial Court, the learned trial Court shall dispose of the same by a speaking and reasoned order strictly, in accordance with law laid down by Hon'ble Supreme Court in Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Others reported in 2022 SCC OnLine SC 913 and Sanjay Kumar Rai Vs. State of Uttar Pradesh reported in AIR 2021 SC 2351.

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Accordingly, prayer of quashing the impugned order and proceedings emanating therefrom is hereby refused.

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It is needless to mention that if the applicants apply for grant of bail within a period of four weeks from today, the trial court shall consider and decide the same expeditiously, in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antill Vs. Central Bureau of Investigation and others : MANU/SC/1024/2021 by keeping the process(s), which may have been issued against the applicants, in abeyance for a period of four weeks from today only.

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In case, the applicants fail to avail the benefit as aforesaid within the stipulated period, the same shall come to an end without any further reference to this Court.

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In view of the aforesaid observations, the instant application under Section 482 Cr.P.C. is finally disposed of .

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Order Date :- 3.5.2023 Saurabh

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

Vijay Kumar and Ors. v. the State of U.P Thru Principal Secy. Home. and Anr.

Case brief

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Vijay Kumar and Ors. v. the State of U.P Thru Principal Secy. Home. and Anr.

Case brief

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