Court No. - 5 Case :- APPLICATION U/S 482 No. - 19075 of 2010 Petitioner :- Smt. Rahisunnisha Respondent :- State Of U.P. Petitioner Counsel :- Narsingh Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and learned A.G.A.
The present 482 Cr.P.C. petition has been filed for quashing the entire
proceedings of case No.5100 of 2009 ( State of U.P. Vs. Jai Prakash and
others) under Section 3/7 E.C. Act, P.S. Chauri Chaura, district Gorakhpur,
pending before the Chief Judicial Magistrare, Gorakhpur.
It is also contended by the learned counsel for the applicant that the applicant
is lady therefore her bail application may be directed to be considered on the
same day.
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, 245(2) or 227/228, Cr.P.C. as the case may 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 applicant appears and surrenders before the
court below within 30 days from today and apply for bail, then her bail
application shall be considered by the Court below, on the same day, if
possible in accordance with law after hearing the Public Prosecutor. 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.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 14.6.2010 / Rkb