Court No. - 38
Case :- APPLICATION U/S 482 No. - 36618 of 2018 Applicant :- Dharmpal Fauji And 6 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Manoj Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the charge- sheet dated 16.2.2018 as well as entire proceedings of Criminal Case State of U.P. Vs. Dharampal Fauji and others, arising out of Case Crime No. 258 of 2017, under Sections 147, 341, 332, 353 I.P.C., 7 Criminal Law (Amendment) Act, P.S. Rabupura, district Gautam Budh Nagar, pending in court of Civil Judge (J.D.)/ J.M., Jevar, District Gautam Budh Nagar.
Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the records.
The contention of learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. Learned counsel has pointed out towards certain documents and statements in support of his contention.
Learned A.G.A. has opposed the application by contending that all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.
Considered the rival submissions made by the parties.
The submissions made by learned counsel for the applicants call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case.
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, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and the recent being A.R.C.J. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348. Therefore, this Court does not deem it proper and cannot be persuaded to have a pre-trial before the actual trial begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge by moving a proper application for the said purpose before the trial court and they are free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by him before this Court in this application.
Accordingly, the prayer for quashing the charge-sheet as well as proceedings of the aforementioned case is refused. Interim order, if any, is vacated.
At this juncture, learned counsel for the applicants prayed that the applicants are ready to surrender before the court and to move bail application, however, some time be provided to them for such purpose and the court below be directed to consider their bail application expeditiously in accordance with the law as laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P., 2005 Cri.L.J 755 affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. (2009) 4 SCC 437. Prayer has also been made to direct the learned trial court to consider their discharge application.
Learned AGA has no objection against the aforesaid prayer.
As the law laid down in both the aforesaid cases, should be complied with in letter and spirit, by all courts, it is expected from the trial court that in case the applicants surrender before it within 30 days from today and apply for bail it will decide their bail application in wake of the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P., 2005 Cri.L.J 755 affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. (2009) 4 SCC 437.
For the aforesaid period of 30 days from today, which shall not be extended further in any case, no coercive action shall be taken against the applicants.
The applicants are at liberty to move a discharge application at appropriate stage of trial and the court below is expected to pass a well reasoned order, if any such application is moved by them.
With the aforesaid directions this application is finally disposed off.
Order Date :- 12.10.2018/Pcl