Court No. - 28 Case :- APPLICATION U/S 482 No. - 14144 of 2010 Petitioner :- Modh. Hanif And Others Respondent :- State Of U.P. And Other Petitioner Counsel :- R.K. Nigam,S.M.Ali Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
List revised none appears to press this application on behalf of applicants.
The present matter was in the revised reading of the list on 28.05.2010, on
which date also none appears to press this application on behalf of the
applicants and therefore, the matter was directed to be put up as fresh on 13th
July, 2010.
Heard learned A.G.A. for the State.
The present application under Section 482 Cr.P.C., has been filed for
quashing the summoning order dated 04.03.2010 passed by learned Civil
Judge (Junior Division)/Judicial Magistrate, Mahoda, District Hamirpur in
Complaint Case No. 161 of 2009 (Abdul Aziz Vs. Mohd. Hanif and others)
whereby the applicants have been summoned to face trial for the offence
under Section 498A I.P.C., and Section 3/4 of Dowry Prohibition Act.
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
applicants. 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 no.1, 2, 3, 6 and 7 have got
right of discharge under Section 245(2) Cr.P.C. 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 summoning order, so far as it relates to applicants
no.1, 2, 3, 6 and 7 is hereby refused.
However, it is directed that the applicants no.1, 2, 3, 6 and 7 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 no.1, 2, 3, 6 and 7. However, in case, the
applicants no.1, 2, 3, 6 and 7 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 disposed off, in
respect of applicants no.1, 2, 3, 6 and 7.
So far as, the present application relates to applicants no.4 and 5 who are
unmarried girl (Nanad) of the opposite party no.3, the following order is being
passed:-
Issue notice to the opposite party no.3 returnable within a period of four
weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks’ time for filing the
counter affidavit. Opposite party no.3 may also file counter affidavit within
the same period to the averments/allegations made against the applicants no.4
and 5. Learned counsel for the applicants may file rejoinder affidavit within a
period of two weeks’ thereafter.
List immediately after expiry of the aforesaid period before appropriate Court.
Till the next date of listing no coercive action shall be taken against the
applicants no. 4 and 5 in the aforesaid case.
Order Date :- 16.7.2010
S.Ali