Aarif v. State of U.P.

Neutral Citation No. - 2024:AHC:73340

Court No. - 91 Case :- APPLICATION U/S 482 No. - 13441 of 2024

Applicant :- Aarif

Opposite Party :- State of U.P.

Counsel for Applicant :- Jitendra Kumar,Keshav Hari Dixit,Purushottam Dixit

Counsel for Opposite Party :- G.A.

Hon'ble Prashant Kumar,J.

1. Heard learned counsel for the applicant, Sri S.K. Chandraul, learned A.G.A. for the State-O.P. no.1 and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing charge sheet dated 22.02.2018 and all consequential proceedings of Case No.228A of 2017 (State vs. Aarif), arising out of Case Crime No.433 of 2017, under Section 60, 63 of Excise Act and under section 420, 467, 468, 471 and 120B of IPC, Police Station-Basrehar, District-Etawah.

3. An FIR was lodged on 28.09.2017 by O.P. no.2 in which it was alleged that when the police intercepted truck No.UP 75M-7886, it was found loaded with 500 boxes of liquor which was being taken for sale illegally. The driver and cleaner were apprehended on the spot and they disclosed the name of the owner (present applicant).

4. Learned counsel for the applicant submits that by means of instant application the applicant has challenged the charge sheet and all consequential proceedings of the aforesaid case. He further submits that the liquor, which was alleged to have been recovered from the truck, has been released. All the documents were found in order. He further submits that the truck has also been released, which was involved in the criminal case. The applicant had no knowledge of pendency of instant criminal case against him. He further submits that the applicant has never committed any offence as alleged against him. No offence against the applicant is disclosed and the court below has utterly failed to consider that no prima facie case is made out against the applicant.

5. Per contra, learned A.G.A. vehemently opposes the application and contends that this is highly belated application as the summoning order was issued way back on 18.03.2019. The instant application has been filed after delay of five yearsHe submits that it is quite unbelievable that the applicant had no knowledge about pendency of the criminal case against him whereas his vehicle was seized in the case and later on released. Instead of cooperating in the trial, the applicant has filed the instant application just to delay the trial of the case.

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6. From 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.

7. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-

"(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(vii) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8. Further, the Hon'ble Supreme Court in the cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, 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 has held that

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only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.

9. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not. Besides this, the instant application is highly belated and devoid of merits.

10. Hence, the instant matter cannot be entertained and is, accordingly, dismissed. Order Date :- 25.4.2024

Manish Himwan

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