HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 46721 of 2019 Applicant :- [ENTITY] Opposite Party :- State Of Up And Anr Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- G.A. Hon'ble [ENTITY],J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 [ACT] application has been filed to quash the order dated 25.04.2019 passed by Session Judge, Moradabad in [CASE NUMBER] ([ENTITY] Kumar Vs. U.P. State and Another) as well as oder dated 16.03.2019 and 12.05.2015, passed by Additional Chief Judicial Magistrate, Moradabad in [CASE NUMBER] (Smt. Radh Vs. [ENTITY]) under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] Police Station Civil Lines, District- Moradabad.
Learned counsel for the applicants submits that the applicant is innocent and has been falsely implicated in the present case; applicant was not present at the time and place of occurrence and plea of alibi raised by the applicant, at the stage of considering the discharge application, has not been accepted by the trial court. Learned counsel further submits that the impugned order is illegal and liable to be quashed.
Learned A.G.A. has vehemently opposed and submits that the applicant has not appeared before the trial court despite the summoning order passed by the trial court. Learned A.G.A. further submits that at the stage of considering the discharge application, the defence of the accused/applicant cannot be considered and it is settled principle of law that at the time of framing charge or considering the discharge application the observation of the prosecution evidence as well as merit and demerit of the case cannot be adjusted.
Hon'ble Supreme Court in [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT], [PRECEDENT] after discussing the nature and scope of power of High Court U/[SECTION] of [ACT], has held that the High Court can exercise the inherent powers provided under [SECTION] of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under [SECTION] of Code, regarding taking the cognizance of the offence or u/[SECTION] of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
It is settled principle of law as laid down by the Hon'ble Supreme Court in [PRECEDENT] and in [PRECEDENT] that at this stage of framing of charge or considering the discharge application, defence of plea of alibi cannot be considered. At this stage the truthfulness, veracity and effect of the prosecution evidence are not required to be meticulously adjudged and no weight to be attached to the probable defence of the accused.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicant. All the submissions made by the learned counsel for the applicant relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings is refused.
However, as prayed at this stage, if applicants appear or surrender before the Court concerned within 30 days from today and apply for bail in the aforesaid case, the prayer shall be considered as expeditiously as possible preferably same day by the Court below in accordance with law.
With the aforesaid direction/observation, the instant application is disposed off.
Order Date :- 17.12.2019 S.K.