Court No. - 5 Case :- APPLICATION U/S 482 No. - 19751 of 2010 Petitioner :- Badri Prasad And Others Respondent :- State Of U.P. & Another Petitioner Counsel :- Nisaruddin,Arvind Ku. Srivasatava Respondent Counsel :- Govt. Adovcate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and learned A.G.A. for the State
respondent.
The present application has been filed for quashing of the proceedings of
Compliant Case No. 1314 of 2008 (Smt. Daulat Devi Vs. Badri Prasad &
others), under Sections 307, 323, 504, 506 I.P.C. and 3(2)5 S.C. and S.T. Act,
Police Station – Ekdil, District – Etawah, pending before the learned A.C.J.M.-
2, Etawah and also for quashing of the summoning order dated 01.02.2010
passed by learned A.C.J.M.-2, Etawah.
It is contended by the learned counsel for the applicants that it is a case of no
injury.
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
malafide intention for the purposes of harassment. He pointed out certain
documents and statements in support of his contentions.
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
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. Moreover, the applicants have got a right
of discharge under section 239, 245(2) or 227/228, Cr.P.C. as the case may be
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 of the proceedings and summoning order is refused.
However, it is provided that if the applicants appear and surrender before the
court below within a period of 30 days from today and apply for bail, then
their prayer for bail shall be considered in view of the settled law laid down
by the Seven Judges’ decision of this Court in the case of Amarawati and
another Vs. State of U.P., reported in 2004(57) ALR-290 and in the recent
decision of the Supreme Court dated 23.3.09 in Criminal Appeal No. 538 of
2009, Lal Kamlendra Pratap Singh v. State of U.P., 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 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 disposed off.
Order Date :- 15.6.2010
Sunil Kr. Gupta