Court No. - 5 Case :- APPLICATION U/S 482 No. - 19359 of 2010 Petitioner :- Gayan Prakash Respondent :- State Of U.P. & Another Petitioner Counsel :- Mohd. Aasif Respondent Counsel :- Govt.Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and learned A.G.A. for the State
respondent.
The present application has been filed for quashing the proceedings of
complaint case no. 273 of 2007 under Section 420 IPC, P.S. Muhamdabad
District Ghazipur pending in the court of Civil Judge (JD)/Judicial Magistrate,
Muhamdabad, Ghazipur as well as the summoning order dated 13.10.2008.
The contention of the counsel for the applicants is that no offence against the
applicant 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
applicant. 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 applicant has 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 he is free to take all the
submissions in the said discharge application before the trial Court.
The prayer for quashing the proceedings as well as the summoning order is
refused.
However, it is provided that if the applicant appears and surrenders before the
court below within a period of 30 days from today and applies for bail, then
his 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 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 disposed off.
Order Date :- 15.6.2010
Ashish
