Heard learned counsel for the applicant and learned A.G.A. for the State.
The present petition under Section 482 Cr.P.C. has been filed for quashing the proceedings of Case No. 15438 of 2008 (State v Ajay Singh) under Sections 406, 420, 467, 468, 471 and 506 IPC, PS Chakeri, District Kanpur Nagar, District Kanpur Nagar pending in the court of Chief Metropolitan Magistrate, Kanpur Nagar and also for quashing the charge sheet No. 234 of 2008 filed in the aforesaid case.
It is contended by learned counsel for the applicants that present criminal prosecution of the applicant initiated by opposite party no. 2 is counter blast to the proceedings which were initiated by the applicant, therefore, it is argued that the same is gross misuse of the process of law. 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 applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 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. State of Punjab, A.I.R. 1960 S.C. 866, 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 right of discharge under Section 239 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 charge sheet as well as for quashing of the proceedings of the aforesaid case is refused.
However, it is directed that the applicant shall appear and surrender before the court below within 30 days from today and apply for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. 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 applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this application is finally dispose off. Order Date :- 22.1.2010 shailesh