Court No. - 71
Case :- CRIMINAL APPEAL No. - 3218 of 2019 Appellant :- Hari Prakash Pathak Respondent :- State Of U.P. And Another Counsel for Appellant :- Akash Mishra,Vishal Tandon Counsel for Respondent :- G.A.,Rajesh Kumar Mishra
Hon'ble Ajit Singh,J.
Heard learned counsel for the appellant-applicant and learned A.G.A. for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed challenging the summoning order dated 26.10.2018 passed by Second Addl. Sessions Judge/Special Judge SC/ST Act, Bareilly in Complaint Case no. 11 of 2018, under Sections 147, 148, 149, 452, 323, 504, 506 I.P.C. and Section 3(1)(Da) (Dha) of SC/ST Act, P.S. Anwala, district Bareilly whereby appellant has been summoned in the aforesaid sections.
Learned counsel for the appellant contended that no offence is made out against the appellant and he has been falsely implicated in the present case.
Per contra, learned A.G.A., contended that there is no infirmity or illegality in the order passed by the learned trial court.
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 applicants. 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 Sections 227, 239, 245 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.
At this stage, this Court is not in a position to weight the factual matrix of the case properly and accused has a right against summoning order to file a discharge application before the trial court raising all the grounds/grievances which have been taken in this application or which may have been taken, the trial court shall decide the discharge application as per law.
The prayer for quashing the proceeding as well as order dated 26.10.2018 is refused.
However, it is directed that in case the appellant-applicant appears and surrenders before the court below within four weeks from today and applies for bail, his prayer for bail shall be considered and decided expeditiously in the light of the law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. in accordance with law after hearing the public prosecutor.
For a period of four weeks from today, no coercive action shall be taken against the appellant-applicant. However, in case, the appellant-applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this appeal is finally disposed of.
Order Date :- 26.4.2019 Mini