Kamal Gautam Alias Kamal Singh Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:56183

Court No. - 70

Case :- APPLICATION U/S 528 BNSS No. - 9870 of 2025

Applicant :- Kamal Gautam Alias Kamal Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashutosh Tiwari,Satya Prakash Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Satya Prakash Tripathi, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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Applicant- Kamal Gautam Alias Kamal Singh who is a charge sheeted accused has been summoned by Court below has approached this Court by means of present application under section 482 Cr.P.C. with the following prayer:

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" It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the instant 482 Application and set aside/ quash the Charge-sheet dated 23.05.2023 as well as Cognizance/Summoning Order dated 02.03.2024 in Case no.8917/2024 arising out of case crime no. 52 of 2023 U/S 376, 420, 467, 468, 471, 323, 504, and 506, I.P.C. Police station Loha Mandi, District Agra, pending in the court of Additional Chief judicial Magistrate, court No.05 Agra Otherwise the applicant shall suffer irreparable loss and injury.

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It is further be pleased to stay/Quash the entire proceeding of Case no.8917/2024 arising out of case crime no.52 of 2023 U/S 376, 420, 467, 468, 471, 323, 504, and 506, I.P.C. Police station Loha Mandi, District Agra, Pending in the court of Additional Chief judicial Magistrate, court No.05 Agra during the pendency of the present case before this Hon'ble Court.

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And/or to pass such other and further order, which this Hon'ble Court may deem fit and proper under the circumstances of the present case. Otherwise, the applicant shall suffer irreparable loss and injury."

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At the very outset, the learned A.G.A. has raised a preliminary objection by contending that against the proceedings impugned in present application, applicant has right of discharge under section 250 BNSS. All the grounds raised in support of present applicant

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can be examined by Court below thredbare at the fist instance as it has the advantage of original record. It is thus contended by the learned A.G.A. that present application is liable to be dismissed on the ground of alternative remedy.

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Learned A.G.A. has then invited the attention of Court to the charge sheet/police report dated 23.5.2023 submitted by Investigating Officer, copy of which is on record at page 82 of the paper book. With reference to above, the learned A.G.A. submits that as many as 22 prosecution witnesses have been nominated therein. However, the statement of the nominated witness previously recorded under section 161 Cr.P.C. have not been brought on record. Apart from above, there is no averment in the affidavit accompanying the present application regarding the other material collected by Investigating Officer during course of investigation. In the absence of above, no finding can be returned by this Court as to whether as per the papers accompanying the police report, no offence is made out against the applicant or there is no evidence against applicant.

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Referring to the judgement of Kaptan Singh Vs. State of U.P and Others, 2021 SCC Online SC 580, learned A.G.A. submits that since the material collected by Investigating Officer during course of investigation, has not been brought on record, therefore, no interfernece is warranted by this Court in present application.

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Learned A.G.A. has then invited the attention of the Court to the statement of the prosecutrix recorded under sections 161 and 164 Cr.P.C. respectively. Copies of the same are on record as annexures- 3 and 5 to the affidavit. The prosecutrix in her aforesaid statements has fully supported the F.I.R. The veracity of the aforesaid statements cannot be examined by this Court, at this stage. The same have to be taken into consideration ipso facto. The prosecutrix in her aforesaid statements have fully supported the F.I.R. There is no such material on record on the basis of which, the prosecution story can be said to be improbable or the prosecutrix is unworthy of trust and therefore her statements are not worthy of credit. It is lastly contended by the learned A.G.A. that since as per the material collected by Investigating Officer, prima facie the criminality alleged to have been committed by applicant was found to be established, therefore, the trial of the applicant can be sustained. NO illegality can thus be alleged to the proceedings pending against applicnat before Court below and impugned in present application. This Court while exercising jurisdiction under section 528 BNSS is not required to hold a mini trial. As such, no interference is warranted by this Court in present

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application.

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When confronted with above, the learned counsel for applicant could not overcome the same. He has, however, tried to impress upon the facts with contradictory facts that either the applicant has solemnized marriage with the prosecutrix or the present proceedings have been initiated maliciously. The same is further exemplied from the contradictory pleadings raised by applicant in paragraphs 19, 28 and 29 of the affidavit filed in support of the present application.

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As such, the objections raised by the learned A.G.A. in opposition to this application under section 482 Cr.P.C. remains uncontroverted and therefore not dislodged by the learned counsel for applicant.

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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 preliminary objection raised by the learned A.G.A. in opposition to this application is clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant, with reference to the record. As such, no good ground exists to entertain the present application.

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

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It is accordingly dismissed.

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Order Date :- 3.4.2025 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Kamal Gautam Alias Kamal Singh v. State of U.P. and Another

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Kamal Gautam Alias Kamal Singh v. State of U.P. and Another

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