Court No. - 49 Case :- APPLICATION U/S 482 No. - 34631 of 2009 Petitioner :- Iftakhar Hussain Respondent :- State Of U.P. And Another Petitioner Counsel :- Ashok Kumar Srivastava 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 petition under Section 482 Code of Criminal
Procedure (in short “the Code”) has been filed for quashing
the summoning order dated 10.02.2009 in Case No. 11/XI of
2009 (Haidari Bibi v Iftikhar Hussain) under Section 125 of
the Code, PS Khanpur, District Ghazipur pending before the
Judicial Magistrate, Saidpur, Ghazipur and for quashing of
the proceedings in the aforesaid case.
It is contended by learned counsel for the applicant that
opposite party no. 2 had married applicant no. 1, forty years
back and she is living in her parents’ house for the last thirty
seven years and now she has moved an application under
Section 125 of the Code, in which the applicant has been
summoned. It is contended that the applicant is not entitled
to grant of any maintainance in view of the provisions
envisaged under proviso to Section 125 of the Code and as
such proceedings initiated by opposite party no. 2 cannot be
sustained under law.
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 Section 239 or 227/228 Cr.P.C. as the case may
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 of the summoning order dated
10.02.2009 and also for quashing of the proceedings of the
aforesaid case is refused.
However, it is directed that the applicant shall appears and
surrenders before the court below within 30 days from today
and applies for bail, his 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
dispose off.
Order Date :- 1.2.2010
shailesh