Court No. - 54 Case :- APPLICATION U/S 482 No. - 33879 of 2009 Petitioner :- Deshraj And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Varun Kr. Srivastava Respondent Counsel :- Govt.Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. petition has been filed for quashing the proceeding of
complaint case No. 49 of 2009 under sections 323,504,427,392 I.P.C.,
pending before the Judicial Magistrate, Fatehpur as well as for quashing the
summoning order dated 3.8.2009.
The contention of the counsel for the applicants is that no offence against the
applicants is disclosed and the present prosecution has been instituted with a
malafide intention for the purposes of harassment and there is no injury case.
He pointed out certain documents and statements in support of his contention.
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
applicants. All the submission 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 in cases of R.P. Kapur Vs. State of Punjab,
A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)
426, 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. The disputed defence of the accused cannot be
considered at this stage. Moreover, the applicants have got 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 they are free to take all the submissions in
the said discharge application before the Trial Court.
The prayer for quashing the proceeding is refused.
However, it is directed that the applicants shall appear and surrender before
the court below within 30 days from today and apply for bail, their prayer for
bail shall be considered and decided in view of the settled law laid by this
Court in the case of Amrawati and another Vs. State of U.P. reported in 2004
(57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in
2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a
period of 30 days from today or till the disposal of the application for grant of
bail whichever is earlier, no coercive action shall be taken against the
applicants. However in case the applicants do not appear before the Court
below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed off.
Order Date :- 7.1.2010
Salim