Court No. - 49 Case :- APPLICATION U/S 482 No. - 24942 of 2010 Petitioner :- Edvin John Respondent :- State Of U.P. & Another Petitioner Counsel :- P.C.Srivastava Respondent Counsel :- Govt.Advocate Hon'ble Bala Krishna Narayana,J.
Heard learned counsel for the applicant and learned A. G. A.
The present application under Section 482 Cr. P. C. has been filed for
quashing the summoning order dated 16.4.2010 passed by the Judicial
Magistrate, Moradabad whereby the learned Magistrate has summoned
the applicant to face the trial for the offence, under Sections-323, 504,
506 I. P. C. and Section 3 (1) SC/ST Act in Case No. .1646 of 2007
registered at P. S.-Civil Lines, District-Moradabad.
The contention of learned counsel for the applicant is that no offence
against the applicant is disclosed and the present prosecution has been
instituted against the applicant with a malafide intention for the purpose
of harrasing the applicant. 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 be 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 the summoning order is refused.
However, it is directed that the applicant shall appear and surrender
before the court below within 30 days from today and apply 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 disposed of.
Order Date :- 4.8.2010
HR
