Court No. - 49 Case :- APPLICATION U/S 482 No. - 34581 of 2009 Petitioner :- Smt. Nikahat Fatima @ Nikahat Sultana Respondent :- State Of U.P. & Another Petitioner Counsel :- A. Raza Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and the learned AGA for the
State.
The present application has been filed for quashing the proceedings of
criminal Case No 6116 of 2008 (arising out of Case Crime No. 1550 of
2009) State v Nikahat Fatma, under Section 3(2) of the Public Property
Damages Act, 1984 and 448 IPC, PS Kotwali, District Ghazipur pending
in the court of the Chief Judicial Magistrate, Ghazipur and also for
quashing of the charge sheet dated 25.07. 2008.
The contention of the counsel for the applicants is that submersible
pump was being installed in the public lane under the permission of the
Nagar Palika concerned and therefore no offence under Section 3(2) of
the Public Property Damages Act, 1984 can be drawn against the
applicant nor any offence has been committed under Section 448 IPC. It
is further contended that that applicant is a lady so her bail prayer may
be considered by the magistrate, if possible, on the same day.
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 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.
The prayer for quashing the proceedings as well as quashing of the
charge sheet in the aforesaid case is refused.
However, considering the fact that the applicant is a lady, it is provided
that if she appears and surrenders before the Court below within a
period of 30 days from today and apply for bail, then her paryer for bail
shall be considered and decided, expeditiously, if possible on the same
day, in accordance with law, 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 her.
With the aforesaid directions, this application is disposed off.
Order Date :- 2.2.2010
shailesh