Court No. - 44
Case :- APPLICATION U/S 482 No. - 39127 of 2018 Applicant :- Gopal Kishan @ Krishna Gopal @ Gopal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Awadhesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant and learned A.G.A.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 5728 of 2002 (State v. Gopal Kishan), case crime no. 1064 of 2001, under Sections- 279 and 304(A) IPC, P. S.- Sahibabad, District Ghaziabad pending before the VIII-Additional Chief Judicial Magistrate, Ghaziabad as well as charge sheet dated 11.03.2002.
The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
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 applicant. 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. 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. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the proceedings of the aforementioned case and the charge sheet is refused.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and apply for bail, his prayer for bail shall be considered and decided in accordance with law.
For a period of 30 days from today no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
HOWEVER IT IS MADE CLEAR THAT NO FURTHER TIME WOULD BE ALLOWED TO THE APPLICANT FOR AFORESAID PURPOSE, i.e., FOR SURRENDER.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 30.10.2018 shailesh