Kamlesh and Others vs State of U.P. and Another

Naheed Ara Moonis, J.—Supplementary affidavit filed today on behalf of the applicant is taken on record.

Heard the Learned Counsel for the applicants, the learned AGA for the State and perused the record.

The instant application has been filed by the applicants with a prayer to quash the criminal proceedings in criminal case No. 843 of 2001, State v. Ashok and Ors., under Sections 323, 504, 506 Indian Penal Code and Section 3(1)(x) S.C./S.T. Act, P.S. Mahob Kanth, District Mahoba, pending in the court of Judicial Magistrate, Kulpahar, Mahoba, whereby the learned Magistrate has taken cognizance vide order dated 23.2.2011.

It is submitted by the Learned Counsel for the applicants that the applicant has also lodged the first information report against the complainant and other persons in respect of which the first information report was lodged in which the charge sheet has been submitted against the opposite paty No. 2. Now the present prosecution has been launched by the opposite party No. 2 against the applicants as a measure of counter blast and the learned Magistrate has taken cognizance mechanically in routine manner. Per contra the learned AGA has contended that non bailable warrants has also been issued against the applicants.

At the stage of issuing process the court below is not expected to examine and assess in detail the material place on record only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:

(i) R.P. Kapur Vs. The State of Punjab,

(ii) State of Haryana v. Bhajanlal 1999 SCC (Cri) 426 and

(iii) State of Bihar v. P.P. Sharma 1992 SCC (Crl) 192.

From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage the test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and No. useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palanattkar and Ors. v. State of Bihar, 2002(XLIV) ACC 168, it has been held by the Hon''ble Apex Court is that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court u/s 482 Code of Criminal Procedure itself envisages three circumstances under which the inherent jurisdiction may be exercised:

(i) to give effect an order under the Code;

(ii) to prevent abuse of the process of the court;

(iii) to otherwise secure the ends of justice.

The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. At the same time High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence.

From the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that No. offence has been made out against the applicants, the cognizance has been taken by the trial court, whereby the applicants have been summoned to face the trial which suffers from No. illegality and as such the prayer for quashing of the proceedings in the above mentioned case is refused.

Therefore, there is No. merit in this petition filed u/s 482 Code of Criminal Procedure The petition is accordingly dismissed.

However, the applicants are directed to appear and surrender before the court below within 30 days from today and apply for bail. In case the applicants appeared and surrender before the court concerned within aforesaid period, their prayer for bail shall be considered and decided in accordance with law keeping in view of the settled law laid by this Court in the case of Amrawati and Anr. v. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh v. State of U.P. No. coercive steps shall be taken against the applicants within the aforesaid period.

In case, the applicants do not appear before the court concerned the court below shall be at liberty to proceed with the case in accordance with law.

With the above direction the petition is accordingly dismissed.