Court No. - 72
Case :- APPLICATION U/S 482 No. - 6373 of 2019
Applicant :- Basavan And 21 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Indradeo
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Heard learned counsel for the applicants, learned Additional Government Advocate for the State and perused the record.
The present application under section 482 Cr.P.C. has been filed for quashing the Charge Sheet No. 01 of 2018 dated 30.11.2018 in Case No.03 of 2019 (State vs. Basavan and others) arising out of Case Crime No.69 of 2018, under sections 147, 148, 352, 427, 436, 452, 504, 506 IPC and 7 Criminal Law Amendment Act, 1932 Police Station Kandva, District Chandauli pending in the court of Civil Judge (J.D.) Chandauli.
The submission of learned counsel for the applicants is that applicants are innocent and have been falsely implicated in the present case. Allegations levelled against them are false and fabricated; no offence against them are disclosed and the present prosecution has been instituted with a malafide intention for the purpose of harassment. He submits that applicant No.1 namely Basavan and other applicants are family member, villager, relative and informant namely Surendra Pratap Yadav are residing at same village Gram Kamhariya, P.S. Kandwa District Chandauli. The actual fact is that on 12.9.2018, at about 8:00 A.M., the daughter of applicant no.1, Rubi, aged about 16 years, went to latrin/Sauch but in midway, informant's real brother - Mahendra Yadav along with three other persons catch her in bad intention, then she run away from the place. Thereafter, she lodged the FIR against the Mahendra Yadav along with three other persons which is registered as Case Crime No.0068 of 2018, under Sections 354K 3 (1Da) 3 (1) (Dha) and 7/8 POCSO Act at P.S. Kandwa, District Chandauli. He further submits that on 13.9.2018, real brother of opposite party No.2 lodged the FIR at about 16:25 O'Clock. He further submits that without collecting any credible evidence, Investigating Officer submitted the charge sheet against applicants and on the basis of same, learned court below has taken cognizance against them and passed cognizance order dated 9.1.2019, which is not sustainable in the eye of law.
Learned A.G.A. for the State has opposed the prayer of the applicants.
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.
Considering the facts and circumstances of the case, I do not find any ground to quash the charge-sheet, entire proceedings of the aforesaid trial, therefore, the prayer for quashing the same is hereby refused.
In the last learned counsel for applicants prayed that some protection be granted to the applicants in case they surrender before the concerned court and further prayed that this court may please to direct the trial court to follow the directions passed in matter of Amarawati Versus State of U.P reported in 2005 Cri LJ 755 (All) as well directions given by the Hon'ble Supreme Court in Lal Kamlendra Pratap Singh Versus State of UP and Ors reported in 2009 (4) SCC,437.
The directions given by the Full Bench of this Court in Amarawati (Supra) as well as directions given by the Hon'ble Supreme Court in Lal Kamlendra Pratap Singh (Supra) which are on the issue of (I) to follow the directions passed by Hon'ble Supreme in the matter of Joginder Kumar Versus State of UP reported in 1994 (4) SCC,260, (II) Trial Court to take all endeavour to decide a bail application preferably on the same day and (III) to grant interim bail in appropriate cases pending disposal of final bail application, are very explicit and to be followed mandatorily in letter and spirit.
A copy of the said judgments have already been circulated to all the district courts of State of Uttar Pradesh under the orders of Hon'ble Supreme Court and this Court, therefore to repeat such direction by way of another order from this Court is neither necessary nor warranted.
In case appropriate application is filed, by the applicants, the trial court shall decided the same strictly in accordance with law.
I have already rejected the prayer of the applicants for quashing the charge-sheet and other prayers sought in the present application being sans merit, however considering the facts and circumstances of the present case, it is directed that in case the applicants surrender before the concerned trial court within 30 days from today and apply for bail, the trial court will decide the bail application in accordance with law.
For a period of 30 days from today, no coercive action shall be taken against the applicants in the aforesaid case.
It is made clear that no further protection on any ground what so ever will be granted beyond the period above mentioned and in case applicants choose not to surrender within the 30 days from today, the trial court is directed to take all the coercive measures in accordance with law against them.
With the aforesaid directions, this application is disposed off.
Order Date :- 28.2.2019 Rishabh
(Saurabh Shyam Shamshery, J.)