Court dismissed under Section 482 Cr.P.C. an application seeking quashing of proceedings initiated under Sections 147, 148 IPC. Court held prima facie case was made and no such proceedings are liable to be quashed.
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Court No. - 49
Case :- APPLICATION U/S 482 No. - 12290 of 2023
Applicant :- Dr. Vishnu Rai @ Vishnu Rai Opposite Party :- State of U.P. and Another Counsel for Applicant :- G.S. Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. I.K. Chaturvedi, the learned Senior Counsel assisted by Mr. G.S. Chauhan, the learned counsel for applicant and Mr. Ratnendra, the learned A.G.A. for State.
Perused the record.
Challenge in this application under Section 482 Cr.P.C. is to the Charge Sheet No. 311 of 2022 dated 21.10.2022 submitted in Case Crime No. 443 of 2022, under Sections 147, 148, 149, 353, 332, 504, 224, 225, 511, 186, 189 and 327 IPC and Section 7 Criminal Law Amendment Act, Police Station-Nawabad, District-Jhansi, the Cognizance Taking Order/Summoning Order dated 05.11.2022 passed by Additional Chief Judicial Magistrate/Special Magistrate, MP/MLA Court/Civil Judge (Senior Division)/F.T.C., Jhansi in Case No. 1821 of 2022 (State Vs. Amit Kumar @ Gudda and Others) under Sections 147, 148, 149, 353, 332, 504, 224, 225, 511, 186, 189 and 327 IPC and Section 7 Criminal Law Amendment Act, Police Station-Nawabad, District-Jhansi as well as the entire proceedings of aforementioned criminal case.
Record shows that an incident is alleged to have occurred on 16.09.2022. However, the FIR in respect of the same was lodged 24.09.2022 by first informant-opposite party 2 and was registered as Case Crime No. 0443 of 2022, under Sections 147, 148, 149, 353, 332, 504, 224, 225, 511, 186, 189 IPC and Section 7 Criminal Law Amendment Act. In the aforesaid FIR, as many as, 12 persons have been nominated as named accused whereas various other persons have also been arraigned as accused.
At this juncture, it will be appropriate to referr to the statement of first informant recorded under Section 161 Cr.P.C. which is on record at page 107 of the paper book wherein the first informant has explained the delay in lodging the FIR. Perusal of the said statement goes to show that the FIR was lodged by first informantopposite party 2 who happens to be a police officer, after making
due enquiry with the persons present at the time and place of occurrence and after perusal of the CCTV footage pertaining to the time and place of occurrence.
Subsequent to the aforesaid FIR, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He examined various witnesses under Section 161 Cr.P.C. During course of investigation, the name of one Bhagwan Das also figured in the crime in question. Accordingly, he was arrested and his statement was recorded on 05.10.2022 i.e. after 11 days from the date of lodging of the FIR.
This witness has stated about the complicity of present applicant in the crime in question. On the basis of above and other material collected by the Investigating Officer, applicant has been charge sheeted in aforementioned case crime number vide Charge Sheet No. 311 of 2022 dated 21.10.2022 along with other accused.
Mr. I.K. Chaturvedi, the learned Senior Counsel for applicant submits that except for the statement of the co-accused Bhagwan Das, there is no other material against the applicant in the entire case diary establishing his complicity in the crime in question. To buttress his submission, he submits that the FIR was lodged by Police Inspector. As per statement of the first informant, the FIR was lodged with a delay of 8 days after making due enquiry and upon perusal of the CCTV footage pertaining to the place of occurrence. On the above premise, he submits that applicant is not named in the FIR. There is no evidence on record to establish the presence of the applicant at the time and place of occurrence as per the CCTV footage of the same. The confessional statement of coaccused is not admissible in evidence. On the above premise, he submits that present case is a case of no evidence and therefore, the entire proceedings are liable to be quashed by this Court.
Per contra, the learned A.G.A. has opposed the present application. He contends that it is true that the name of the applicant has surfaced in the crime in question in the statement of co-accused Bhagwan Das. However, there is nothing on record to infer malafide against co-accused Bhagwan Das. As no foundation with regard to the same has been raised in the affidavit filed in support of the present application.
Learned A.G.A. has then invited the attention of the Court to the statement of the 2 witnesses namely Mahendra and Balram who have clearly stated about complicity of present applicant in the crime in question. On the above premise, the learned A.G.A.
contends that it cannot be said that present case is a case of no evidence. On the above premise, the learned A.G.A. contends that no indulgence by granted by this Court.
Having heard, the learned Senior Counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the credibility and reliability of the statement of a witness examined under Section 161 Cr.P.C. cannot be undertaken in exercise of jurisdictioni under Section 482 Cr.P.C. This Court while exercising its jurisdiction under Section 482 Cr.P.C. cannot consider the sufficiency of the material on record for convicting an accused but has to only examine as to whether prima-facie case for proceeding with the prosecution of an accused is made out or not. When the facts in hand are examined in the light of above, the inescapable conclusion is that no illegality can be inferred qua the proceedings impugned in present application.
For what has been said above, the present application fails and is liable to be dismissed.
It is accordingly dismissed .
Order Date :- 2.5.2023 Vinay
Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad
1 issue framed by the court
Whether the proceedings initiated under Sections 147, 148 IPC should be quashed by invoking Section 482 Cr.P.C.
2 provisions across 2 enactments
Dr. Vishnu Rai @ Vishnu Rai
State of U.P.
Another
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
