Court No. - 54 Case :- APPLICATION U/S 482 No. - 33747 of 2009 Petitioner :- Punjabi @ Phool Singh And Others Respondent :- State Of U.P.And Another Petitioner Counsel :- S.K.Mishra Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant/petitioners and the learned AGA for
the State-respondent. .
The present 482 Cr.P.C. petition has been filed for quashing the proceedings
of case no.8302 of 2009, under Sections 452, 504, 506 IPC, pending before
the Chief Judicial Magistrate, District Kanshi Ram Nagar.
It is contended by the learned counsel for the applicants that the matter is
purely of a civil nature for which the opposite party no.2 has already filed a
civil suit, which is pending consideration before the Civil Judge (Junior
Division), Kanshi Ram Nagar and for the same matter the present criminal
prosecution has been initiated against the applicants, which is bad in law.
The contention of the learned counsel for the applicant is that no offence
against the applicant is disclosed and the present prosecution has been
instituted with malafide intentions for the purposes of harassment. He pointed
out certain documents and statements in support of his contentions.
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
questions of fact, which cannot be adjudicated upon by this Court under
Section 482 Cr. P.C. At this stage only a prima facie case is to be seen in the
light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs.
State of Punjab, AIR 1960 SC 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 has 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 they are free to take all the
submissions in the said discharge application before the trial Court.
The prayer for quashing the proceedings, is hereby refused.
However, it is provided that if the applicants appear before the Court below
within a period of 30 days from today and apply for bail, then their prayer for
bail shall be considered in view of the settled law laid down by this Court in
the case of Amarawati and another Vs. State of U.P., reported in 2004(57)
ALR-290 and in the recent decision of the Supreme Court dated 23.3.2009 in
Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of
U.P.. For a period of 30 days from today or till disposal of the bail application
whichever is earlier, coercive action shall not be taken against the applicant.
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 disposed of.
Order Date :- 6.1.2010
Hasnain