Court No. - 54 Case :- APPLICATION U/S 482 No. - 33907 of 2009 Petitioner :- Sohan Singh And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- R.B.Singh Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the applicants and learned A.G.A. for the State
respondent.
By the present application under Section 482,Cr.P.C. the applicants have
invoked the inherent jurisdiction of this Court with a prayer that the
summoning order dated 10.9.2008 passed by Judicial Magistrate, Mathura in
case no. 1806 of 2008 under Sections 147, 149, 326 IPC, P.S. Highway
District Mathura be quashed.
It is contended by the learned counsel for the applicants that initially a NCR
was filed on 2.8.2006, thereafter, a complaint under Section 156(3), Cr.P.C.
was filed on 14.8.2006 against the applicants, which is bad in law. It is also
contended that no offence against the applicants is disclosed and the present
prosecution has been instituted with malafide intention for the purposes of
harassment. He pointed out certain documents and statements in support of
his contentions.
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
questions of fact, which cannot 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 state. 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 summoning order 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 v. 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 :- 7.1.2010
Ashish