Mohd. Raza and Others vs State Of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard Learned Counsel for the applicants, Sri C.S. Kushwaha, Learned Counsel for the opposite party no. 2 and learned A.G.A. for the State-respondent. Vide earlier order of this Court dated 13.1.2010, the matter was sent to the Mediation Centre of this Court on the request of Learned Counsel for the applicant and the Bench Secretary/Incharge, Mediation Centre has reported in his report dated 15.7.2010 that the mediation has failed between the parties. The said mediation report is on record. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of complaint case no. 2639 of 2008, under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act, pending before the Judicial Magistrate, Kushi Nagar at Padrauna and also for quashing of the order dated 19.10.2006.

It is contended by the Learned Counsel for the applicants that the present proceedings is nothing but as a counter blast to the proceedings initiated by the applicant''s side against the opposite party no. 2 which is nothing but gross misuse of the process of law.

The contention of the counsel for the applicants is that no offence against the applicants 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 applicants. 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 lawin case the proceedings of the aforesaid case is not stayed by any Court. 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 applicants have got right of discharge under Sections 239, 227/228 or 245(2) 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 proceedings as well as for quashing of the order, is hereby 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 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 be taken against them, in case the proceedings of the aforesaid case is not stayed by any Court. With the aforesaid directions, this application is finally disposed of.