Shani and Another v. State of U.P. and Another

Court No. - 91 Case :- APPLICATION U/S 482 No. - 41098 of 2023 Applicant :- Shani And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramnath Counsel for Opposite Party :- G.A. Hon'ble Gajendra Kumar,J.

¶1Heard learned counsel for applicants and the learned A.G.A. for State.

¶2This application under Section 482 Cr.P.C. has been filed by the applicants to quash the summoning order dated 10.05.2023 as well as the entire proceedings of Complaint Case No.3652 of 2022, under Sections 417, 504, 506 IPC, P.S. Diviyapur, District Auraiya.

¶3At the very outset, learned counsel for applicants submits that as per material on record, no offence under the charging sections is made out against applicants. As such impugned summoning order as well as entire proceedings of aforesaid case are liable to be quashed by this Court.

¶4Per contra, learned AGA has submitted that from the perusal of the allegations made in the complaint and the material collected during the course of inquiry, prima facie offence is clearly made out against the applicants and as such, entire proceedings cannot be quashed.

¶5From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239, 245(2) or 227/228 Cr.P.C. as the case may be, before the court below and they are free to take all the submissions in the said discharge application before the trial court.

¶6The prayer for quashing the proceedings of case as well as summoning order is refused.

¶7At this stage, learned counsel for the applicants submit that applicants may be permitted to move discharge application before the court concerned.

¶8Keeping in view the facts and circumstances of the case, it is directed that the applicants will move a proper application for discharge through counsel within thirty days from today and they are free to take all the submissions in the said discharge application before the Trial Court, which shall be considered and disposed of by the Trial Court in accordance with law within a period of two months. For a period of four weeks from today, no coercive action shall be taken against the applicants.

¶9Accordingly, the present application is disposed of. Order Date :- 7.11.2023 Sanjeet High Court of Judicature at Allahabad