Code of Criminal Procedure, 1973 – S. 482 – From the perusal of the 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 applicant. All the submissions made at the bar relate to the disputed questions 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 and the disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. Thus, on the basis of the aforesaid discussions, the application has no force and is liable to be dismissed. The application is, accordingly, dismissed.
Section 482 of Cr.P.C.
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Hon’ble Mrs. Ranjana Pandya, J.
Case No. – 3023 of 2016
Applicant :- Santosh Kumar Yadav And Others
Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Kunwar Mukul Rakesh,Kunwar Shushant Prakash
Counsel for Opposite Party :- Govt. Advocate, Salil Kumar Srivastava
1. This Criminal Misc. Application under Section 482 Cr.P.C. has been preferred with the prayer to set aside the order dated 21.04.2016, passed by Additional Sessions Judge,Court No. 17, Lucknow, in Criminal Revision No. 28 of 2016 (Santosh Kumar Yadav and others vs. State of U.P. And another) arising out of order dated 03.11.2015, passed by Additional Chief Judicial Magistrate – Vth, Court No. 29, Lucknow and quashing of complaint dated 20.04.2015 in Criminal Misc. Case No. 1462 of 2015 (Smt.Sushma Yadav vs. Santosh Kumar and others), under Section 352, 498A, 457 I.P.C. and Section 4 D.P. Act, P.S. B.K.T., District Lucknow.
2. Counsel for the applicants has submitted that the present proceedings are nothing but abuse of the process of law. Opposite party no. 2 has left no stone unturned to harass the applicants. He has further submitted that in the garb of the application under Section 156(3) Cr.P.C., the opposite party has reopened the matter which could not have been reopened.
3. Brief facts are that the opposite party no. 2 was married to the applicant no. 1 namely Santosh Kumar Yadav on 06.03.2011. As per the averments of the applicants, the opposite party no. 2 deserted the applicant no. 1 on 11.09.2011 when she was pregnant. She gave birth to a male child on 14.01.2012.The child was concealed by the opposite party no. 2 whereupon the applicants moved a Habeas Corpus Petition no. 231 of 2012 in which an inquiry was ordered. In the Inquiry, it was made to understand that the son of applicant no. 1 had died. The aforesaid Habeas Corpus Petition was decided granting liberty to applicant no. 1 to lodge a first information report against opposite party no. 2 regarding murder of the child. At this, a case was registered against the opposite party no. 2 and her family members on the behest of applicant no. 1. The matter was investigated and it was revealed that the son of applicant no. 1 was alive who was given in the custody of applicant no. 1. During the course of inquiry, the opposite party no.2 and her parents have submitted a fabricated death certificate of the son of applicant no. 1 issued by Dileep Gupta in an order to pressurise the applicant no. 1 and to conceal her activities. The opposite party no. 2 moved a false and fabricated application under Section 156(3) Cr.P.C. before the concerned Magistrate, Lucknow which was rejected, vide order dated 15.04.2014. Against the aforesaid rejection order, the opposite party no. 2 preferred an application under Section 482 Cr.P.C., in which opposite party no. 2 was directed to file a complaint before the Magistrate. The opposite party no. 2 preferred a complaint which was registered and procedures under Section 200 and202 Cr.P.C. were followed. On 01.11.2011, a compromise was entered into between the applicant no. 1 and opposite party no. 2, whereby the opposite party no. 2 obtained cash from the applicant no. 1 along with articles including motorcycle given at the time of marriage. After entering into the compromise as stated earlier, the first information report was lodged by the applicant no. 1 under the directions of the High Court which is pending after submission of charge sheet before the learned Magistrate and the instant complaint has been filed just to harass the applicants. A complaint and the statements of the witnesses speak about the falsity of the whole matter. The applicants Santosh Yadav, Muneshwar Yadav, Kusum Yadav and Pramod Yadav on the basis of complaint were summoned under Sections 352, 498A, 457 I.P.C. And 4 D.P. Act, while the applicants Raj Narayan Yadav, Priyanka Yadav and Virendra Yadav were summoned underSections 498A I.P.C. And 4 D.P. Act.
4. It is note worthy that the number of accused persons have been increased from 4 to 8 by the opposite party no. 2. The summoning order is bad in the eyes of law which is illegal. No offence under Section 457 I.P.C. is made out. A similar application was moved by the opposite party no. 2. Allegations under Section 498A I.P.C. are false on the face of it. The present complaint is an improved reversion of the earlier application moved under Section 156(3) Cr.P.C. which was rejected by the learned Magistrate on 15.04.2014.
5. Against the aforesaid summoning order, the applicants preferred a Criminal Revision which was decided on 21.04.2016 against the applicants. The order of the revisional court again is illegal and has been passed ignoring the principles of law laid down. The impugned orders suffers from non application of mind, hence the order dated 21.04.2016 passed by Additional Sessions Judge, Court No. 17, Lucknow in Criminal Revision No. 28 of 2016 an order dated 03.11.2015 passed by ACJM-V, Court No. 29, Lucknow are liable to be quashed.
6. Sri Salil Kumar Srivastava, counsel for the opposite party no. 2 has vehemently argued that the applicants have exhausted all remedies available to them and now this Court while exercising its power under Section 482 Cr.P.C. cannot quash the orders passed by both the courts below.
7. The learned counsel for the applicant has also relied upon