Anwar Ali vs Mohd Rafat

Rajesh Dayal Khare, J.—List revised. None appears to press the application on behalf of the applicant. Learned A.G.A. is present for the State Respondent.

This Court vide its order dated 06.01.1992 had issued notice and in the meantime further proceedings in Criminal Case No. 658/1988, u/s 406/420 I.P.C. pending in the Court of Judicial Magistrate, Gyanpur, were stayed till 31.3.1992.

In spite of service of notice, no counter affidavit has been filed till today.

The present 482 Cr.P.C. application has been filed for quashing of Complaint Case No. 658/1988, u/s 406/420 I.P.C. pending in the Court of Judicial Magistrate, Gyanpur.

It has been averred in the present application that no offence against the applicant 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 applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court u/s 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. The State of Punjab, State of Haryana v. Bhajan Lal 1992 SCC (Cri.) 426, State of Bihar v. P.P. Sharma 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got right of discharge u/s 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

The prayer for quashing of the complaint case is refused.

However, it is provided that if the applicant appears and surrenders before the court below within 30 days from the date of communication of this order by the concerned court below and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and Anr. v. State of U.P. reported in 2004 (57) ALR 290 as well as Judgment passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 Lal Kamlendra Pratap Singh v. State of U.P., after hearing the Public Prosecutor. The concerned Magistrate is directed to send notice to the applicant immediately after receipt of communication from this Court. For a period of 45 days from the date of communication of this order or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However in case the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

With the aforesaid directions, this application is finally disposed off. Interim order dated 06.1.1992 is hereby vacated.

The Registry of this Court is directed to communicate this order to the court concerned, forthwith.