Court No. - 5 Case :- APPLICATION U/S 482 No. - 19469 of 2010 Petitioner :- Om Prakesh And Another Respondent :- State Of U.P. & Another Petitioner Counsel :- Ashok Kumar Pandey Respondent Counsel :- Govt.Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and learned A.G.A.
The present 482 Cr.P.C. petition has been filed for quashing the proceedings
of the Complaint Case No. 523 of 2010, under Section 500 and 506 I.P.C.,
Police Station Niwadi, District Ghaziabad, pending before learned Additional
Chief Judicial Magistrate, Court No.6, District Ghaziabad.
The contention of the counsel for the applicants is that no offence against the
applicants 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.It is further contended
that the criminal prosecution of the applicants has been lodged after months of
the alleged incident. It is next contended that the applicant no.2 is the lady,
therefore, her bail application be considered on the same day, if possible by
the Court below.
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
applicants. 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 applicants have got right of discharge
under Section 245 (2) Cr.P.C. 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 proceeding is refused.
However, it is directed that the applicants shall appear and surrender before
the court below within 30 days from today and apply for bail, then the bail
application of the applicant no.2 who is the lady, shall be considered on the
same day, if possible by the court below and the bail prayer of applicant
no.1 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
applicants. However in case the applicants do not appear before the Court
below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed off.
Order Date :- 15.6.2010
S.Ali