Raj Pushwani vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard Sri G.S.Chauhan, Learned Counsel for the opposite party No. 2 and learned A.G.A. for the State. On the request of Learned Counsel for the applicant, another Bench of this Court, vide order dated 17.03.2009 had referred the matter to mediation centre. The Incharge mediation centre vide its report dated 11.08.2009 had reported that no agreement could be entered into between the parties, copy of which report is on record.

The present 482 Cr.P.C. petition has been filed for quashing the order dated 03.10.2008 passed by learned Civil Judge (Junior Division)/Judicial Magistrate, Room No. 11, District Jhansi in Case No. 805 of 2008 (Smt. Pooja Baryani Vs. Bishwas Baryani and others), under Sections 498A, 323, 504, 506 I.P.C., Police Statin Awabad, District Jhansi.

It has been averred in the present application u/s 482 Cr.P.C., that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.

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 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, 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 order is refused.

Interim order, if any, stands vacated.

However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and applies for bail, his 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 applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

Learned Counsel for the opposite party No. 2 undertakes to inform Learned Counsel for the applicant about the order passed today in writing within 24 hours. With the aforesaid directions, this application is finally disposed off.