Heard learned counsel for the applicants and learned A.G.A. for the State respondents.
The present 482 Cr.P.C. petition has been filed for quashing the proceeding of Case no. 100 of 2008, under Sections 323, 504 IPC, Police Station - Dehli Gate, District - Aligarh pending in the Court of Additional Chief Judicial Magistrate, Court No. 2, Aligarh.
It is contended by the learned counsel for the applicants that one criminal case was lodged by the applicants against the opposite party no. 2, which is pending before another bench of this Court and opposite party no. 2 has been granted stay vide order dated 24.02.2004, which has been filed as annexure no. 4 to the accompanying affidavit. It is further contended on behalf of the applicants that as a counter blast to the earlier criminal case, the opposite party no. 2 has initiated the present case against the applicants. It is further argued by the learned counsel for the applicants that the present litigation is abuse of process of court in as much as no offence is made out against the applicants.
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 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 Sections 239, 227/228 or 245(2) Cr.P.C. 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 proceedings, is hereby refused.
However, considering the fact that charged sections are bailable, it is it is provided that in case 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 expeditiously, if possible on the same day, in accordance with law, after hearing the public prosecutor. 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.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 14.6.2010 A. Verma