Court No. - 18 Case :- U/S 482/378/407 No. - 2644 of 2010 Petitioner :- Moharram Ali And Another Respondent :- State Of U.P. And Another Petitioner Counsel :- Alok Srivastava-Ii,Ram Kumar Respondent Counsel :- Govt. Advocate Hon'ble S.N.H. Zaidi,J.
Heard learned counsel for the applicants and learned A.G.A. for
opposite party no.1.
Notice to opposite party no.2 is dispensed with.
The applicants, by means of this application filed under section
482 Cr.P.C., have invoked the inherent powers of this Court with a
prayer to quash the summoning order dated 30.11.2009 as well as
bailable warrants dated 3.4.2010 issued agaisnt the applicants by
the Judicial Magistrate-IInd, Gonda in Complaint Case No.
1382/2008 Mohd. Kafil vs. Moharram Ali and others.
The contention of the learned counsel for the applicants is that no
offence against the applicants is disclosed and the present
prosecution has been instituted with malafide intentions for the
purposes of harassment. He pointed out certain documents and
statements in support of his contentions.
From the perusal of 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 submissions made at the bar
relates to the disputed questions of fact, which cannot be
adjudicated upon by this Court under sections 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 Versus
State of Punjab, AIR 1960 SC 866, State of Haryana Versus
Bhajan Lal, 1992 SCC (Cr) 426, State of Bihar versus P.P.
Sharma, 1992 SCC (Cr) 192, and lately Zandu Pharmaceutical
Works Ltd. Versus Mohd. Saraful Haqe 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 be, 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.
In the event such an application is filed within one month from
today, the trial court is directed to consider and dispose it off
within a period of two months from the date of it’s filing.
The prayer for quashing the impugned orders is refused.
It is also directed that if the applicants surrender before the trial
court within fifteen days from today and move for bail, the bail
prayer of the applicants shall be considered and decided by the
courts below expeditiously in the light of the law laid down by the
Hon’ble Apex Court in the case of Lal Kamlendra Pratap Singh
vs. State of U.P. and others reported in 2009 (2) SCC (Crl) page
330.
With the aforesaid direction, the application is finally disposed of.
Order Date :- 29.6.2010
Muk