Sanjay Tingal and Others vs State of U.P. and Others

Rajesh Dayal Khare, J.—List revised none appears to press this application on behalf of applicants.

Heard learned A.G.A. for the State.

Another Bench of this Court vide order dated 31.08.1998 another Bench of this Court had issued notice to the opposite party No. 3 and in the meantime stayed further proceedings of Criminal Case No. 2218 of 1997 pending before learned Chief Judicial Magistrate, District Etah.

Till date no counter affidavit has been filed.

The present 482 Cr.P.C. petition has been filed for quashing the proceedings of Criminal Case No. 2218 of 1997, (State v. Subhash Chandra Jai and Ors.) under Sections 406, 420, 120-B I.P.C., pending before learned Chief Judicial Magistrate, District Etah and also for quashing of the charge sheet dated 03.08.1994 submitted in the aforesaid case.

It has been averred in the present application u/s 482 Cr.P.C., that no offence against the applicants 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 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 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 they are free to take all the submissions in the said discharge application before the Trial Court.

The prayer for quashing the proceedings as well as charge sheet is refused.

Interim order dated 31.08.1998 is hereby vacated.

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 to the applicant and apply for bail 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. The concerned Magistrate is directed to send notice to the applicants immediately after receipt of communication from this Court. For a period of 45 days from the date of communication of this order to the concerned Court below 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 off.

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