Court No. - 68
Case :- MATTERS UNDER ARTICLE 227 No. - 4679 of 2019
Petitioner :- Brijesh Yadav And 4 Others
Respondent :- State Of U.P. And Another
Counsel for Petitioner :- Yashpal Yadav,Lalji Yadav Counsel for Respondent :- G.A.
Hon'ble Umesh Chandra Tripathi,J.
Heard learned counsel for the parties and perused the record.
This petition under Article 227 of Constitution of India has been preferred by the petitioners challenging the judgement and order dated 24.09.2018 passed by Additional Sessions Judge, Court No. 9, Kanpur Nagar in Criminal Revision No. 41 of 2011 (Brijesh Yadav Vs. State) dismissing the revision against the order dated 19.03.2010 passed by Additional Chief Metropolitan Magistrate, Court No. 6, Kanpur Nagar in Complaint Case No. 4359 of 2010 (Sangeeta Vs. Brijesh Yadav), under Sections 498A, 323, 504, 506 I.P.C., Police Station-Kalyanpur, District-Kanpur Nagar.
Learned counsel for the petitioners contended that from the material brought on the record, no offence is disclosed against the petitioners. The present prosecution is launched against them with mala fide intention for the purpose of harassment and as such, the present proceedings are sheer abuse of the process of the court.
Per contra, learned A.G.A. opposed the prayer made and contentions thereof raised by learned counsel for the petitioners and contended that the material on record was sufficient for initiation of criminal proceedings in the aforesaid case against the petitioners.
From the perusal of first information report and material brought on record, and looking into the facts of the case, it cannot be said, at this stage, that no offence is made out.
All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in exercise of its extraordinary writ jurisdiction.
In view of the above, the prayer for quashing the entire proceedings in the aforesaid case is hereby refused.
However, it is directed that if the petitioners apply for bail, the same shall be disposed of on the same day on which they are taken into custody, as per the guidelines prescribed by Hon'ble Apex Court in the case of Social Action Forum for Manav Adhikar and Another Vs. Union of India reported in 2018 SCC OnLine SC 1501.
It is further directed that if petitioner nos. 2 to 5 file discharge application under Section 245 (2)Cr.P.C. the same shall be decided by the trial court/magistrate concerned by a reasoned and speaking order, in view of the judgment passed by Hon'ble Apex Court in the case of Geeta Mehrotra and Another Vs. State of U.P. and Another reported in (2012) 10 SCC 741.
However, if the petitioner Nos. 2 to 5 apply before the concerned Magistrate to exempt their appearance through counsel under Section 205 Cr.P.C., the same shall be considered by the concerned Magistrate, sympathetically.
For a period of 60 days from today or till Petitioner no. 1- Brijesh Yadav surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against him.
Till the disposal of discharge application, no coercive action shall be taken against the petitioner nos. 2 to 5.
With the aforesaid observations/directions, the instant petition stands disposed of.
Order Date :- 30.5.2019 AKT