Court No. - 79
Case :- APPLICATION U/S 482 No. - 43033 of 2019
Applicant :- Jagdish Tiwari And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Hanuman Kinkar,Shashi Kumar Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicants and learned A.G.A.
This application under Section 482 Cr.P.C. has been filed for quashing the proceeding of Criminal Case no. 67956 of 2018, arising out of Case Crime no. 0288 of 2018, under Sections 52, 354, 323, 504 and 506 I.P.C., P.S. Narval, district-Kanpur Nagar, pending in the court of Metropolitan Magistrate-VII, Kanpur Nagar as well as chargesheet dated 2.2.2019.
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 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 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 applicants have got right of discharge under Sections 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 Apex Court in the case of State of Bihar v. Ramesh Singh [(1977) 4 SCC 39] has held that when charge sheet has been submitted and it has been challenged by way of application under Section 482 Cr.P.C. in the High Court, the High Court is not in a position to weight probabilities and re-appreciating the material, if High Court does it, it may be time consuming exercise and the legislative policy of expeditious disposal will hamper. 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 charge sheet to file a discharge application before the trial court and the trial court may decide his discharge application, if there is no evidence against him.
The prayer for quashing the proceeding as well as chargesheet dated 2.2.2019 is refused.
However, it is directed that in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in accordance with law after hearing the public prosecutor.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 28.11.2019 Faridul