Nathu Singh vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicant, learned A.G.A. and Sri K.D. Tripathi, learned Counsel for the opposite party No. 2.

Another Bench of this Court, vide its order dated 14.12.1999 had issued notice to the opposite party No. 2 and in the meantime stayed the proceedings of Case No. 1884 of 1993 (Bheekam Pal Singh v. Nathu Singh and Ors.) pending before learned Additional Chief Judicial Magistrate, District Aligarh.

Pursuant to the aforesaid order of this Court, counter affidavit has been filed by the opposite party No. 2 after serving the copy to the learned Counsel for the applicant on 07.04.2010, but till date no rejoinder affidavit has been filed.

The present 482 Cr.P.C. petition has been filed for quashing the proceedings of Case No. 1884 of 1993 (Bheekam Pal Singh v. Nathu Singh and Ors.) under Sections 419, 420, 468, 471, 120B I.P.C., Police Station Sikandra Rao, District Aligarh, pending before learned Additional Chief Judicial Magistrate, District Aligarh and also for quashing of the orders dated 21.01.1994, 25.01.1997 and 03.11.1999 issued in the aforesaid case.

It is contended by learned Counsel for the applicant that the opposite party No. 2 has no locus to file the complaint u/s 419 I.P.C. or under the charged Sections, inasmuch as he was not an aggrived person, therefore filing of the complaint is total misuse of the process of law. It is further contended 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 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 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 he is free to take all the submissions in the said discharge application before the Trial Court.

The prayer for quashing the proceedings as well as orders impugned is refused.

Interim order dated 14.12.1999 is hereby discharged.

However, it is provided that if 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 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. 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 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.

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