Court No. - 49 Case :- APPLICATION U/S 482 No. - 34091 of 2009 Petitioner :- Kamlesh Kumar And Others Respondent :- State Of U.P.And Another Petitioner Counsel :- Prem Shankar Mishra Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present petition under Section 482 Cr.P.C. has been filed for quashing the
charge sheet dated 21.12.2008 submitted by the Police in Case Crime No. 574
of 2008, under Sections 452, 323, 504 and 506 IPC, PS Machchlishahr,
District Jaunpur pending before the Judicial Magistrate-I, Jaunpur.
It is contended by learned counsel for the applicants that the matter is of civil
nature which has been dragged into criminal prosecution. It is further
contended that opposite party no. 2 is in the habit of making false allegations.
The present prosecution filed at the behest of opposite party no. 2 is malafide
and 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 applicants have got right of discharge
under Section 239 or 227/228 Cr.P.C. as the case may 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 aforesaid charge sheet in the aforesaid case 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, their 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 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 dispose off.
Order Date :- 13.1.2010
shailesh