Court No. - 1
Case :- APPLICATION U/S 482 No. - 24813 of 2018
Applicant :- Avinish Kumar And 4 Others
Opposite Party :- State Of Up And Another
Counsel for Applicant :- Vijay Singh Sengar,Ajay Singh Sengar
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Vijay Singh Sengar, learned counsel for the applicants and Sri Prashant Kumar, learned brief holder for the State.
The present applicant u/s 482 Cr.P.C. has been filed with a prayer to quash the order dated 25.4.2016 passed by Additional Session Judge/Special Judge, D.A.A. Act, Auraiya as well as entire proceeding of Complaint Case No. 26 of 2016 (Nand Kumar Vs. Avnish Kumar and others), under Section 395 IPC, P.S. Fafoond, District Auraiya.
Learned counsel for the applicants has contended that a civil suit is pending since 2.7.2015 between the wife of the opposite party no. 2 and applicant no. 1 being suit No. 159 of 2015 (Smt. Manju Vs. Saroj Kumari and seven others), and because of that enmity, the present false case has been initiated by the opposite party no. 2 against the accused applicant no. 1 and his entire family members. It is not believable that Rs. 4650/- would be carried in pocket while going for cutting the crop and not even a single injury would be received by the opposite party no. 2 while it is alleged that five persons had done mar-peet with him. This is nothing but a malicious prosecution.
Heard the arguments of learned counsel for the parties and perused the impugned order as well as material available on record.
There are two witnesses, who have given statements in support of the complaints version, which cannot be believed at this stage because veracity of the witnesses needs to be examined in cross-examination during trial. Therefore, at this stage, this Court does not find any infirmity in the impugned order, hence, quashing of the same deserves to be refused.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings is refused.
However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail may 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 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 :- 27.7.2018
A.P. Pandey