Court No. - 45 Case :- APPLICATION U/S 482 No. - 16247 of 2010 Petitioner :- Pramod Kumar @ Makhanchu Prajapati & Another Respondent :- State Of U.P. & Another Petitioner Counsel :- D.K. Tripathi Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
List revised none appears on behalf of the applicants.
Heard learned A.G.A. for the State.
The present 482 Cr.P.C. petition has been filed for quashing the proceedings
of Case No. 887 of 2009, (State Vs. Pramod Kumar and others) arising out of
Case Crime No. 393 of 2008, under Sections 363, 366 I.P.C., Police Station
Shahganj, District Jaunpur, pending before learned Additional Chief Judicial
Magistrate-Ist, Court No.12, District Jaunpur.
It has been averred in the present application under Section 482 Cr.P.C., that
no offence against the applicants is disclosed and the present prosecution has
been instituted with a malafide intention for the purposes of harassment.
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 have got 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 they are 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 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 disposed off.
Order Date :- 4.8.2010
S.Ali