Court No. - 54 Case :- APPLICATION U/S 482 No. - 33981 of 2009 Petitioner :- Manisha Chauhan Respondent :- State Of U.P.And Another Petitioner Counsel :- A.K.Srivastava 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
sessions trial no. 1103 of 2008 under Section 147, 148, 149, 302, 506 IPC
pending in the court of Additional and Sessions Judge, court no.16, Kanpur
Nagar as well as summoning order dated 21.11.2009 passed on the application
moved under Section 319, Cr.P.C.
It is contended by the learned counsel for the applicant that although the name
of applicant was in the first information report but after investigation, charge
sheet not was filed against her and her complicity was not found to be proved
during investigation. It is also contended that P.W.1, who was eye witness of
the alleged offence, in his statement, had specifically named the applicant in
the commission of alleged offence and application moved under Section 319,
Cr.P.C. was allowed.
Learned counsel for the applicant could not point out any legal infirmity in the
order impugned dated 21.11.2009, which may call for any interference by this
Court in exercise of power under Section 482, Cr.P.C.
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 or 227/228, Cr.P.C. as the case may be through a proper
application for the said purpose and she is free to take all the submissions in
the said discharge application before the trial Court.
The prayer for quashing the proceedings of sessions trial as well as
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 :- 7.1.2010
Ashish