Rishipal and Others vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard Learned Counsel for the applicants and learned A.G.A. for the State-respondent. The present application has been filed for quashing of the proceedings of Criminal Case No. 1090 of 2010, under Sections 323, 504, 506 IPC, PS Majhola, district Moradabad pending before the Additional Chief Judicial Magistrate, Court No. 4, Moradabad and also for quashing the summoning order dated 25.05.2011 passed in the aforesaid case as well as the order dated 05.12.2011 passed by the Additional Sessions Judge, Court No. 7, Moradabad.

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 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 applicants. 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 applicants have 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 they are free to take all the submissions in the said discharge application before the trial Court.

The prayer for quashing of the proceedings, summoning order dated 25.05.2011 and the order dated 05.12.2011 is refused.

However, it is provided that if the applicants appear and surrender before the court below within a period of 30 days from today and apply for bail, then their 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 applicants. However, in case the applicants do not appear before the court below within the aforesaid period, coercive action shall be taken against them. With the aforesaid directions, this application is finally disposed of.