Court No. - 49 Case :- APPLICATION U/S 482 No. - 34566 of 2009 Petitioner :- Smt. Usha Devi And Another Respondent :- State Of U.P.And Another Petitioner Counsel :- T.K.Mishra,Mahesh Kumar Tripathi Respondent Counsel :- Govt Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and the learned
AGA for the State.
The present 482, Cr.P.C. application has been filed for
quashing the proceedings of Complaint Case No. 74 of 2009
(Usha & another v Nirmala) under Sections 392, 452 and
504 IPC, PS Prem Nagar, District Jhansi pending before the
Additional Sessions Judge/Special Judge D.P. Area, Jhansi
also for quashing of the summoning order dated 24.X.2009.
It is said that the present prosecution against the applicant is
a counter blast to the proceedings initiated against opposite
party no. 2, copy of which has been annexed as annexure
no. 1 to the accompanying affidavit, which is nothing but
gross misuse of the Court.
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
offense 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 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 aforesaid proceedings and
quashing of summoning order of the aforesaid case 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
dispose off.
Order Date :- 1.2.2010
shailesh