Subhash and Another vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicants and learned A.G.A.

The present 482 Code of Criminal Procedure petition has been filed for quashing the charge sheet No. 394 of 2008, arising out of Case Crime No. 09 of 2009, under Sections 147, 148, 149, 307, 324, 323, 504, 506 I.P.C., Police Station Kaasna, District Gautambudh Nagar in view of the acquittal order dated 29.10.2009 passed in Sessions Trial No. 202 of 2009 and further for quashing the order dated 23.11.2009 whereby bailable warrant has been issued against the applicants in Case No. 14763 of 2008 (State v. Dinesh and Ors.) pending before learned Additional District Judge, Fast Track Couort No. IVth, District Gautambudh Nagar.

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 a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.

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 Code of Criminal Procedure 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 (Cri.) 426, State of Bihar v. P.P. Sharma 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para-10) 2005 SCC (Cri.) 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 Code of Criminal Procedure 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 charge sheet as well as order impugned is refused.

However, it is directed that the applicants shall appear and surrender before the court below within 30 days from today 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 Lal Kamlendra Pratap Singh v. 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 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.