Dismissed

Ashish Kesarwani v. State of U.P. and 2 Others

Allahabad HC5 Sept 2024A482/11822/2024

Case brief

AI extract

What is this about?

Charge-sheeted accused sought quashing of charge sheet and proceedings under Sections 504, 506, 353 IPC via a Section 482 application filed years after the events without impugning the summoning order in the prayer clause. Court allowed amendment of the prayer but dismissed the application on maintainability and delay grounds.

What did the court decide?

None; prayer to amend the application's prayer clause allowed, but the application itself dismissed.

Ashish Kesarwani vs State of U.P. and 2 Others — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:144384

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Court No. - 77

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Case :- APPLICATION U/S 482 No. - 11822 of 2024

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Applicant :- Ashish Kesarwani Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Aradhana Pandey,Manoj Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mrs. Aradhana Pandey, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

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Perused the record.

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At the very outset, the learned A.G.A. has raised a preliminary objection by submitting that the cognizance taking order/ summoning order passed by court below has not been impugned in present application. As such, the present application is not maintainable.

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At this juncture, the learned counsel for applicant submits that certified copy of the Cognizance Taking Order/Summoning Order passed by court below has been appended along with this application as Annexure-5 to the affidavit. However, due to inadvertence, no challenge to the same could be laid in the prayer clause of present application. He therefore submits that he be permitted to correct/amend the prayer clause of this application.

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Prayer made by the learned counsel for applicant is bonafide. Same is not opposed by the learned A.G.A. Accordingly, it is allowed.

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In view of above, let necessary corrections in the prayer clause

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of present application be carried out by learned counsel for applicant during course of the day.

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Applicant-Ashish Kesarwani, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. challenging the Police report (charge sheet) dated 25.01.2020 submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. in Case Crime No. 339 of 2019, under Sections 504, 506, 353 I.P.C., Police Station-Kotwali Katra, District Mirzapur, the Cognizance Taking Order/Summoning Order dated 19.10.2020 passed by Chief Judicial Magistrate, Mirzapur in consequential Criminal Case No. 4505of 2020 (State Vs. Ashish Kesharwani) under Sections 504, 506, 353 I.P.C., Police Station-Kotwali Katra, District Mirzapur as well as the entire proceedings of aforementioned criminal case now pending in the Court of Chief Judicial Magistrate, Mirzapur.

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At the very outset, the learned A.G.A. has raised a preliminary objection regarding maintainability of the present application. He submits that present application has been filed after expiry of a period of more than four years from the date of police report (charge sheet) i.e. 25.01.2020 and after expiry of more than three years from the date of Cognizance Taking Order/Summoning Order i.e. 19.10.2020 passed by court below. As such, the present application is hopelessly barred by latches. Learned A.G.A. has then referred to the averments made in paragraph 15 of the affidavit filed in support of this application and on basis thereof, he contends that the delay/laches in filing the present application have not been sufficiently explained. As the delay/latches in filing present application have not been sufficiently explained, no occasion arises before this Court to entertain this application.

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Learned A.G.A. has then invited the attention of Court to the police report (charge sheet) submitted by the Investigating Officer. With reference to above, the learned A.G.A. submits that as per police report, there are seven prosecution witnesses nominated therein. The statements of aforesaid witnesses were also recorded under Section 161 Cr.P.C. during course of investigation. However, the statements of all the witnesses so nominated in the charge sheet and recorded under Section 161 Cr.P.C. during course of investigation have not been brought on record. Referring to the judgment of Supreme Court in Kaptan Singh Vs. State of U.P., (2021) 9 SCC 35 , he therefore contends that in absence of above, the veracity of the impugned charge sheet cannot be examined by this Court. As such, present application is liable to be dismissed.

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When confronted with above, the learned counsel for applicant 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 record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are not only borne out from the record but further the same could not be dislodged by the learned counsel for applicant, therefore, no good ground exists to entertain the present application.

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As a result, present application fails and is liable to be dismissed.

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It is, accordingly, dismissed .

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Order Date :- 5.9.2024 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Ashish Kesarwani v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Ashish Kesarwani v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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