Nem Singh vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard learned counsel for the applicant and learned A.G.A. for the State-respondent.

The present application has been filed for quashing of the proceedings of Criminal Case No. 18 of 2009 arising out of Case Crime No. 65 of 2007, u/s 7/13 D (1) D Prevention of Corruption Act, PS Quarsi, district Aligarh pending before the Special Judge (Prevention of Corruption Act), Meerut.

It is contended by the learned counsel for the applicant that in the departmental proceedings, report has been submitted in favour of applicant, copy of which has been filed as annexure-10 to the accompanying affidavit and, therefore, criminal prosecution of the applicant is bad in law.

The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions.

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 relates to the disputed questions of fact, which cannot be adjudicated upon by this Court u/s 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the 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, 245(2) or 227/228, 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 proceedings is refused.

However, it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid down by the Seven Judges'' decision of this Court in the case of Amarawati and another Vs. State of U.P., 2004(57) ALR 290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, , after hearing the Public Prosecutor.

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 of.