Anil Kumar Tiwari v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko. and Another

Court No. - 14 Case :- APPLICATION U/S 482 No. - 11791 of 2024 Applicant :- Anil Kumar Tiwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko. And Another Counsel for Applicant :- Manoj Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.

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

¶2The instant application under Section 482 Cr.P.C. has been filed for quashing the impugned summoning order dated 27.01.2016 as well as non-bailable warrant dated 22.02.2024 passed in Criminal Case No.5280 of 2023 (Old Case No.2298 of 2015), under Section 138 N.I. Act, Police Station Sangrampur, District Amethi.

¶3Learned counsel for the applicant has submitted that the impugned summoning order dated 27.01.2016 is not in conformity with the averments made in the complaint filed against the applicant. He also submits that even no prima facie case is disclosed against the applicant, however, learned Judicial Magistrate without applying his judicial mind passed the impugned summoning order. Thus, that even prima facie no offence is disclosed against the applicant, despite this fact, he has been summoned to face the trial which is nothing but malicious prosecution and an abuse of the process of the Court.

¶4He has also submitted that the process of non-bailable warrant issued against the applicant is in contravention of law laid down by the Hon'ble Supreme Court in Raghuvansh Dewanchand Bhasin vs. State of Maharashtra reported in (2012) 9 SCC 791 and in Inder Mohan Goswami and another vs. State of Uttaranchal and others reported in

(2007) 12 SCC 1.

¶5Per contra, learned A.G.A. has submitted 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 applicant can also not be determined.

¶6Learned 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".

¶7He has also drawn attention of this Court to a recent judgment rendered by Hon'ble Supreme Court in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, wherein it has been held that as per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".

¶8On the basis of the aforesaid, he submits that no interference with the impugned summoning order and proceedings is warranted at this stage and, therefore, the application is misconceived and is liable to be dismissed.

¶9Having heard learned A.G.A. and upon perusal of the records including the impugned summoning order dated 27.01.2016, 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 summoning order and the proceedings of aforesaid case is made out.

¶10In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. In this regard reference may be made to a judgment rendered by Hon'ble Supreme Court in Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal, (2003) 4 SCC

139.

¶11Hon'ble Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745 has categorically held that while issuing process, the Magistrate must not anticipate the decision Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry.

¶12In Chandra Deo Singh v. Prokash Chandra Bose, 1963 SCC OnLine SC 4 Hon'ble Supreme Court has held that whether evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry.

¶13Having regard to the aforesaid settled legal position, this Court is of the considered view that the grounds which have been taken to quash the impugned order dated 27.01.2016 call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. Therefore, this Court does not find any justification to quash the proceedings against the applicant as the case does not fall in any of the categories recognized by Hon'ble the Supreme Court which may justify their quashing.

¶14Accordingly, prayer of quashing the impugned summoning order dated 27.01.2016 and proceedings emanating therefrom is hereby refused.

¶15It is needless to mention here that in the eventuality of filing of any application for cancellation of process issued against the applicant/praying for bail along with an application for compounding the offence, within within four weeks from today, the learned trial Court shall dispose of such application on its own merits, expeditiously, keeping in view the law laid down by the Hon'ble Supreme Court in Raghuvansh Dewanchand Bhasin' case (supra) and in Inder Mohan Goswami's case (surpa) in respect of issuance of non-bailable warrant and 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), if any, which is found to be issued against the applicant, in abeyance for the aforesaid period only.

¶16It is made clear that in case, the applicant fails to appear before the Court concerned within the aforesaid period, the interim protection granted hereinabove shall automatically stand vacated without any further reference to this Court and the process(s), which has already been issued against the applicant, shall be given effect to in accordance with law.

¶17In view of the aforesaid observations, the instant application under Section 482 Cr.P.C. is finally disposed of. (Ajai Kumar Srivastava-I, J.) Order Date :- 20.12.2024 A.Dewal High Court of Judicature at Allahabad, Lucknow Bench