Shiv Kumar and Others vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard Learned Counsel for the applicants, Sri Suclan Ahmad holding brief of Sri Jafar Abbas, Learned Counsel for the opposite party No. 2 and learned A.G.A. for the State respondent. On the request of Learned Counsel for the applicants matter was sent to Mediation Centre on 13.12.2010 and the Mediation Centre, vide its report dated 24.7.2011, has reported that the mediation has failed between the parties. The report of Mediation Centre is on record.

The present application has been filed for quashing the proceedings of case No. 6621 of 2010 u/s 498-A, 323, 506 IPC and Section 3/4 Dowry Prohibition Act, P.S. Civil Lines District Rampur pending in the court of C.J.M., Rampur.

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. It is also contended that the applicant No. 1 has expired, who was the husband.

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 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- 2005 10 SCC 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 the proceeding is refused.

So far as the applicant No. 1 is concerned, this applicaiton is dismissed as he has expired, as stated by the Learned Counsel for the applicants.

However, in the circumstances of the case, it is provided that if the remaining applicants move an application for surrender before the court concerned within four weeks from today, the Magistrate concerned shall fix a date about ten days thereafter for the appearance of the applicants and in the meantime release the applicants on interim bail on such terms and conditions as the court concerned considers fit and proper till the date fixed for the disposal of the regular bail.

The court concerned shall also direct the Public Prosecutor to seek instructions from the investigating officer by the date fixed and as far as possible also give an opportunity of hearing to the informant and thereafter decide the regular bail application of the applicants in accordance with the observations of the Full Bench of this Court in Amarawati and Another (Smt.) Vs. State of U.P., , affirmed by the Supreme Court in Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan Vs. State of UP and others, LXV 2009 ACC 781.

If further instructions are needed or if adjournment of the case on the date fixed for hearing becomes unavoidable, the Court may fix another date, and may also extend the earlier order granting interim bail, if it deems fit provided that the adjournment of hearing of the regular bail on one or more dates should not exceed a total period of one month.

It will also be in the discretion of the Sessions/Special Judge concerned to consider granting interim bail pending consideration of the regular bail on similar terms as mentioned herein above when and if the applicants apply for bail before him.

In case the applicants fail to appear before the court concerned on the dates fixed or they fail to cooperate with the investigating officer during investigation, it will be open to the Public Prosecutor to move an application for cancelling the order of interim/final bail and the Court concerned may pass an appropriate order on merits. With the aforesaid observations, this petition is disposed of.