Court No. - 45 Case :- APPLICATION U/S 482 No. - 20306 of 2010 Petitioner :- Abu Talib Respondent :- State Of U.P. & Anr. Petitioner Counsel :- Tahira Kazmi,Saiful Islam Siddiqui,Sanjay Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant, Sri D. K. Singh, learned counsel for
the complainant and learned AGA for the State-respondent.
The present 482 Petition has been filed for quashing of the proceedings of
case crime no. 1128-A of 2010 under sections 147, 148, 307, 504, 506 IPC
pending before the Addl. Chief Judicial Magistrate-II, Jaunpur and also for
quashing of the chargesheet dated 18.04.2010.
It is contended by learned counsel for the applicant that the applicant lodged
an F.I.R. against the opposite party no. 2 on 07.12.2009, which was registered
as case crime no. 1128 of 2009 under sections 147, 148, 307, 504, 506 IPC
and as a counter blast, after a lapse of fourteen hours, the opposite party no. 2
initiated the present criminal proceedings against the applicant, which is bad
in law. Learned counsel has next contended that the investigating officer
without any proper investigation submitted the chargesheet, which is bad in
law.
Further contention of the counsel for the applicants 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 Section 239 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 charge sheet and the proceedings is 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 his prayer for
bail shall be considered in view of the settled law laid down by this Court in
the case of Amrawati and another Vs. State of U.P. reported in 2004 (57)
ALR 290. 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 :- 27.7.2010
yachna