Court No. - 52
Case :- APPLICATION U/S 482 No. - 9924 of 2018 Applicant :- Anubhav Singh And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raghvendra Prakash Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard learned counsel for the applicants and learned A.G.A.
The present application under Section 482 Cr.P.C. has been filed for quashing the chargesheet dated 3.11.2017 in connection with Case no. 766 of 2018 arising out of case crime no. 400 of 2017, u/s 147, 148, 149, 308, 323, 504, 506, 452 IPC, P.S. Kotwali, District Azamgarh.
It is argued that the police has illegally submitted charge-sheet u/s 308 IPC which is exclusively triable by the court of session for extraneous reasons. In this regard he has drawn attention of the court towards the injury report and x-ray report of both the injured from which it cannot be inferred that any of the injuries of the injured was of such nature from which there was likelihood of causing death of any of the injured. He further submits that as the charge-sheet has been submitted u/s 308 IPC and the case is exclusively triable by the court of session the learned Magistrate would in a routine manner reject the bail application. However, he does not challenge making out of other offence under the Indian Penal Code.
Be that as it may; without entering into the submission made by counsel for the applicant and it is well settled that Section 437(1)(i) IPC provides that "such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life"; it is expected that the learned Magistrate may not reject the bail and merely because the case is exclusively triable by court of session. It is the subjective satisfaction of the learned Magistrate to look into the nature of injury to prima facie satisfy that as to whether an offence u/s 308 IPC is made out or not, consequently he shall dispose of bail application in accordance with law.
Per contra learned A.G.A. Submitted that 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. The submissions made by learned counsel for the applicants relate to disputed question of facts, 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.
The submissions made by learned A.G.A. have force. The prayer for quashing the chargesheet is refused.
However, it is directed that if the applicants 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 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.
It is further submitted that entire family members have been implicated by the opposite party no. 2 and the applicant nos. 1 and 2 are student of high school therefore, the court concerned is directed that in case, bail is adjourned for any reason the applicant nos. 1 and 2 shall be released on interim bail till the disposal of the bail application.
For a period of 30 days from today or till the applicants surrender and apply for 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.
Order Date :- 28.3.2018 Dhirendra/