Court No. - 5 Case :- APPLICATION U/S 482 No. - 19252 of 2010 Petitioner :- Mohd. Ikram Respondent :- State Of U.P. & Anr. Petitioner Counsel :- Mohammad Khalid Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and learned A.G.A. for the State
respondents.
The present 482 Cr.P.C. application has been filed for quashing the
summoning order dated 21.4.2008 passed by Chief Judicial Magistrate,
Aligarh in Complaint case No. 11965 of 2007, under Section 406 I.P.C., P.S.
Banna Devi, District Aligarh.
The contention of the counsel for the applicant is that no offence against the
applicant is disclosed and the present prosecution has been instituted with a
malafide intention for the purposes of harassment. 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
applicant. 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 applicant has got right of discharge
under Sections 239, 227/228 or 245(2) 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.
The prayer for quashing the summoning order is hereby refused.
However, it is directed that the applicant 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
applicant. However in case the applicant does not appear before the Court
below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 14.6.2010 (F.H.)