Court No. - 49
Case :- APPLICATION U/S 482 No. - 19598 of 2018
Applicant :- Arjun Singh And 4 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Jai Shanker Audichya,Kuldeep Singh Tomar
Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed to quash the charge sheet no. 128 of 2017 dated 09.09.2017 as well as cognizance order dated 03.01.2018 and the entire proceeding of Case No. 125 of 2018, arising out of Case Crime No. 90 of 2016, under Sections 420, 467, 468, 471 I.P.C., Police Station- Madrak, District- Aligarh, pending before the Addl. Chief Judicial Magistrate-III, Aligarh.
Learned counsel for the applicants submits that the dispute between the parties is purely civil in nature and is engaging attention of the civil court in a civil suit instituted by the opposite party no.2. The said civil suit had been instituted, claiming injunction as also for cancellation of the sale deed executed in favour of the applicants no. 2 and 3 by the power of attorney (applicant no.1), wherein the applicants no. 4 and 5 are marginal witnesses. While the said suit is pending, it has been fairly stated that the order of injunction has already been granted in favour of the opposite party no.2.
In such facts, it is stated that unless the finding is returned in the civil proceedings that the power of attorney in favour of the applicant no.1 was never executed by the opposite no.2, no ingredient of offence as alleged is made out against the present applicant.
Learned AGA on the other hand submits that both civil and criminal proceeding in such circumstance, can go on simultaneously and the issue of valid execution of the power of attorney, is an issue that may be examined in the criminal proceedings as it may be examined in civil proceedings. The applicants shall have opportunity to lead evidence in their defence in those proceedings.
At this stage, the argument raised by learned counsel for the applicants involves adjudication of a factual dispute and appraisal of evidence.
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 at this stage. All the submissions made at the bar, relate to the disputed questions 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 prayer for quashing the entire proceeding of the aforesaid case is refused.
However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 45 days and no more 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.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 30.5.2018 Lbm/-