Court No. - 45 Case :- APPLICATION U/S 482 No. - 909 of 1994 Petitioner :- Smt.Ram Kali & Others Respondent :- State Of U.P. Petitioner Counsel :- Vinai Singh Respondent Counsel :- Aga Hon'ble Rajesh Dayal Khare,J.
List revised. None appears to press the petition on behalf of the applicants.
Learned AGA is present on behalf of the State-respondent.
This Court vide order dated 09.03.1994 has passed the interim order and has
issued notices, but till date no counter affidavit has been filed.
The present 482 Petition has been filed for quashing of the proceedings of
Criminal Case No. 1696 of 1993 under section 406 IPC pending in the Court
of IV A.C.J.M., Agra.
The contention on behalf of the applicant is that no offence against the
applicant is disclosed and the present prosecution has been instituted with a
malafide intention for the purposes of harassment. Certain documents and
statements have been appended in support of his contention.
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, 245 or 227/228, Cr.P.C. as the case may 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 proceedigns is refused.
However, it is provided that if the applicants appear and surrender before the
court below within 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 this Court in
the case of Amrawati and another Vs. State of U.P. reported in 2004 (57)
ALR 290. 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 of.
Order Date :- 3.8.2010