Court No. - 54 Case :- APPLICATION U/S 482 No. - 34356 of 2009 Petitioner :- Rakesh And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Ramesh Pandey Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and learned AGA for the State
respondents.
The present 482 application has been filed for quashing the proceedings of
case no. 1036 of 2009, under section 392, 342, 323, 326, 506 IPC, P.S.
Massori, District- Ghaziabad pending in the court of Judicial Magistrate,
Ghaziabad.
It has been contended by the learned counsel for the applicants that the
applicants as well opposite party no. 2 belongs to the same family and the
complaint has been filed due to some misunderstanding.
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 submissions made at the bar relates to the disputed
questions of facts, which can not 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 applicants have 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 they are free to take all
the submissions in the said discharge application before the trial Court.
The prayer for quashing the proceeding is refused.
However, it is provided that if the applicants appear and surrender before the
court below within a period of 30 days from today and apply for bail, then
their 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 Vs. 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 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 disposed off.
Order Date :- 8.1.2010
SR