Sri Kant and Others vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicants and learned AGA for the Staterespondent.

The present 482 Petition has been filed for quashing of the summoning order dated 18.06.2010 passed by A.C.M.M. II, Kanpur Nagar in Ahibaran Singh v. Shri Kant complaint case No. 3270 of 2010 under Sections 147, 323, 392, 504, 506 IPC.

It is contended by learned Counsel for the applicant that the present criminal proceedings were initiated on an application of the opposite party No. 2 filed u/s 156(3) Cr.P.C., pursuant to which an F.I.R. was lodged and after investigation final report was submitted. It is contended that F.I.R. witnesses executed affidavits, copy of which has been filed as Annexure-5 and there is discrepancy with regard to the alleged incident as specified in the FIR and in the affidavits. It is next contended by learned Counsel for the applicants that the witnesses were not examined while passing of the summoning order, which is bad in law. Learned Counsel for the applicants has relied upon the Judgment of Hon''ble Apex Court reported in the matter of Babu Ram Sharma and Ors. v. State of U.P. and Ors. 2010 (3) SCC Cri. 276 in support of his contention.

Learned A.G.A. has contended that the averment as given in the FIR is not different from the further affidavits executed by the witnesses and therefore, it is contended by the learned A.G.A. that there is no illegality in the order impugned.

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. 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 245(2) or 227/228, Cr.P.C. as the case may 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 summoning order is refused.

However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then their prayer for bail shall be considered in view of the settled law laid by the Seven Judges'' decision of this Court in the case of Amrawati and Anr. v. State of U.P. 2004 (57) ALR 290 as well as Judgment passed by Hon''ble Apex Court Lal Kamlendra Pratap Singh v. State of U.P. 2009 (3) ADJ 322 (SC) 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.