Om Prakash and Another vs State of U.P. and Another

Rajesh Dayal Khare, J.—List revised. None appears on behalf of the applicant to press this application. Learned Counsel for the opposite party No. 2 is present before this Court.

This Court vide order dated 21.08.1996 had issued notice to the opposite party No. 2 for filing counter affidavit and further proceedings of case crime No. 345 of 1995, under Sections 323, 325, 504, 506 I.P.C. pending before the Court of IIIrd Additional Judge (Junior Division) Jhansi was stayed.

The present 482 Cr.P.C. application has been filed for quashing of the proceeding of Case No. 354 of 1995 under Sections 323, 325, 506, 506 I.P.C. P.S. Moth, District Jhansi (State v. Murari and Ors.) pending in the Court of IIIrd Additional Judge (Junior Division) Jhansi.

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. Certain documents and statements have been appended 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 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 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, is hereby refused.

However, it is directed that the applicants shall appear and surrender before the court below within 30 days from the date of communication of this order by the concerned court below and apply for bail, then their 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. reported in 2009 (4) 437, after hearing the Public Prosecutor. 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 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 shall be taken against him.

With the aforesaid directions, this application is finally disposed of. Interim order dated 21.08.1996 is hereby vacated.

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