Diwakar Singh vs State of U.P. and Another

Hon''ble Bala Krishna Narayana, J.—Heard Learned Counsel for the applicant and learned A.G.A. This application u/s 482 Cr.P.C. has been filed for quashing the entire criminal proceeding initiated in case crime No. 2620 of 2007 (State v Diwakar Singh), P.S. Kotwali, District Jaunpur pending in the court of the learned I-Additional Chief Judicial Magistrate, Jaunpur on which the learned has taken cognizance of the offences punishable under Sections 7/16 P.F.A. Act.

The contention of Learned Counsel for 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. He pointed out certain documents and statements 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 applicant. All the submissions made at the bar relate to the disputed questions 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 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 applicant has got a right of discharge u/s 239 or 227/228,245 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 the entire criminal proceedings is refused.

However, it is directed that in case the applicant appears and surrenders before the court below within 30 days from today 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 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, 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.

It is further provided that in case the applicant moves an application for discharge along with certified copy of this order before the court concerned, the same shall be dealt with in accordance with law at appropriate stage. With the aforesaid directions, this application is finally disposed of.