Court No. - 71
Case :- CRIMINAL APPEAL No. - 5250 of 2019 Appellant :- Dharmnath And 4 Others Respondent :- State Of U.P.
Counsel for Appellant :- M J Akhtar Counsel for Respondent :- G.A.,Ram Janam Shahi
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicants, Sri Om Beer Singh, Advocate, holding brief of Sri Ram Janam Shahi, learned counsel for opposite party no. 2, learned AGA for the State and perused the record.
This criminal appeal has been filed by the appellants with the prayer to quash the charge sheet dated 08.12.2017, cognizance order dated 27.01.2018 passed by Additional Sessions Judge, Court No. 3, Kushinagar, as well as entire proceedings of S.T. No. 10 of 2018 (State Vs. Dharmnath and others), arising out of Case Crime No. 0425 of 2017, under Sections 147, 323, 504, 506, 452 IPC and 3(1) (Da) of SC/ST Act, P.S. Kuber Sthan, District- Kushinagar.
As per the allegations made in the FIR, it is alleged that on 05.06.2017 at about 4.00 p.m. the applicants tried to take forcible possession of land belonging to opposite party no. 2 and on being asked to refrain from carrying out their illegal act, the applicants abused the victim with the name of his caste with an intention to humiliate and intimidate him in public view and also assaulted him with lathi and danda, due to which he suffered injuries on his person and has been medically examined.
Learned counsel for the applicants has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicants and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention, and prayed that the charge sheet, cognizance order and entire proceedings be quashed.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, entire proceedings cannot be quashed.
Moreover, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the charge sheet, cognizance order as well as entire proceedings is therefore refused.
However, it is directed that if the applicants appear/surrender before the court below and apply for bail, their prayer for bail shall be considered and decided as expeditiously as possible after giving opportunity of hearing to both the parties.
With the aforesaid observations, this appeal is finally disposed of.
Order Date :- 22.8.2019 v.k.updh.