Baljit Kaur vs State of U.P. and Others

Rajesh Dayal Khare, J.—List revised none appears to press this application on behalf of applicant.

Heard learned A.G.A. for the State.

Vide order dated 10.06.1998 another Bench of this Court had issued notice to the opposite parties No. 2 and 3 and in the meantime stayed the operation of the order dated 05.03.1998 passed by IInd Additional Sessions Judge, Shahjahanpur, in Criminal Revision No. 127 of 1996.

Counter affidavit on behalf of opposite party No. 2 has already been filed after service upon the learned Counsel for the applicant on 15.09.1998 which is on record but till date no rejoinder affidavit has been filed till date.

The present 482 Cr.P.C. petition has been filed for quashing the proceedings of Criminal Case No. 15 of 1996, u/s 420/406 I.P.C., Police Station Banda, District Shahjahanpur (State v. Baljit Kaur), pending before learned Court below.

It has been averred in the present application u/s 482 Cr.P.C., 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 (Cr.) 426, State of Bihar v. P.P. Sharma 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a 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 she is free to take all the submissions in the said discharge application before the Trial Court.

The prayer for quashing the proceedings is refused.

Interim order, dated 05.03.1998 is hereby vacated.

However, it is directed that the applicant shall appear and surrender before the court below within 30 days, from the date of communication of this order by the concerned Court below to the applicant and applies for bail, her 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 (SC) Lal Kamlendra Pratap Singh v. State of U.P. 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 to the concerned Court below 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 her.

With the aforesaid directions, this application is finally disposed off.

The registry of this Court is directed to communicate the order of this Court passed today to the concerned Court below forthwith.