Court No. - 45 Case :- APPLICATION U/S 482 No. - 448 of 1994 Petitioner :- Kali Shankar Respondent :- State Petitioner Counsel :- Rajeev Sharma Respondent Counsel :- Aga Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
This Court vide order dated 27.01.1994 had issued notice to the opposite party
no.2, in the mean time stayed the further proceedings of Complaint Case No.
80 of 1993 under Sections 420, 406 I.P.C., pending before learned Ist
Additional Munsif Magistrate, Kanpur Dehat.
Vide office report dated 24.3.1994 indicates that the copy of present
application has not been supplied by learned counsel for the applicants for
service of notice upon the opposite party no.2.
The present 482 Cr.P.C. petition has been filed for quashing the proceedings
of Complaint Case No. 80 of 1993 under Sections 420, 406 I.P.C., pending
before learned Ist Additional Munsif Magistrate, Kanpur Dehat.
It is contended by learned counsel for the applicant 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.It is further contended
by learned counsel for the applicants that the opposite party no.2 was married
with the sister of the applicant and for want of additional dowry, the opposite
party no.2 tortured the sister of the applicant for which the proceedings were
drawn against the opposite party no.2 and in a counter blast, the present
proceedings has been initiated against the applicant which is bad in law.
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 a right of discharge
under Section 239 or 227/228, or 245 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 is refused.
However, it is provided that if the applicant appears and surrenders before the
court below within 30 days from today and applies 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 off.
Interim order dated 27.01.1994 is hereby vacated.
The registry of this Court is directed to communicate the order of this Court
passed today, to the concerned court below forthwith.
Order Date :- 12.8.2010
S.Ali