Heard learned counsel for the applicant, Sri Mukhtar Alam, learned counsel for the opposite party no.2 and learned A.G.A.
This application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 2.7.2009 passed by Additional Chief Judicial Magistrate-IIIrd, Saharanpur in Case No.5805 of 2010 whereby the learned Magistrate has summoned the applicants to face trial for the offences under Sections 420, 467, 468, 471, 120B I.P.C.
The contention of learned 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 right of discharge under Section 245 Cr.P.C. 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 summoning order is refused.
However, in the circumstances of the case, it is provided that if the applicant move an application for surrender before the court concerned within four weeks from today, the court concerned shall fix a date about ten days thereafter for the appearance of the applicant and in the meantime release the applicant on interim bail on such terms and conditions as the court concerned considers fit and proper till the date fixed for the disposal of the regular bail.
The court concerned shall also give an opportunity of hearing to the informant and thereafter decide the regular bail application of the applicants in accordance with the observations of the Full Bench of this Court in Amrawati and another Vs. State of UP, 2005 Cri. LJ 755, affirmed by the Supreme Court in Lal Kamlendra Pratap Singh Vs. State of UP, (2009) 4, SCC 437 and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan Vs. State of UP and others, 2009 (65) ACC 781.
If further instructions are needed or if adjournment of the case on the date fixed for hearing becomes unavoidable, the Court may fix another date, and may also extend the earlier order granting interim bail, if it deems fit provided that the adjournment of hearing of the regular bail on one or more dates should not exceed a total period of one month.
It will also be in the discretion of the Sessions/Special Judge concerned to consider granting interim bail pending consideration of the regular bail on similar terms as mentioned herein above when and if the applicant applies for bail before him.
In case the applicant fails to appear before the court concerned on the dates fixed, it will be open to the complainant to move an application for cancelling the order of interim/final bail and the Court concerned may pass an appropriate order on merits.
For a period of four weeks from today or till the applicant surrenders before the court concerned, whichever is earlier, no coercive action shall be taken against him. However, it is made clear that in case the applicant fails to move an application for surrender before the court concerned within the time indicated hereinabove, this application shall stand automatically dismissed.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 7.2.2012 Bhaskar