Court No. - 12
Case :- APPLICATION U/S 482 No. - 38239 of 2018 Applicant :- Jairaj Singh Arya And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Bare Lal,Pavan Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard learned counsel for the applicant as well as learned A.G.A for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed for quashing the order dated 31.8.2018 passed by Additional Chief Judicial Magistrate, Banda in case no.723 of 2018 arising out of case crime no.139 of 2017 under sections 147, 148, 149, 307, 504, 506 IPC and 30 Arms Act, P.S.
Marka, District Banda whereby non-bailable warrants have been issued against the applicants. Further prayer has been made to stay the effect and operation of order dated 31.08.2018.
In Application u/s 482 No. - 16344 of 2018 moved by applicants earlier, this Court passed the following order :
"Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the chargesheet dated 26.12.2017, arising out of Case Crime No.139 of 2017 in Case No.723/2018, under sections 147,148,149,307,504,506 I.P.C, and 30 Arms Act (State vs. Jairaj Singh Arya and others), pending in the court of ACJM, Banda, P.S. Marka, District Banda.
The contention of the 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.
Learned A.G.A, has opposed the submission on the ground that in view of the allegations made in the F.I.R, and the documents collected during investigation culminating in the filing of a charge sheet, prima facie case of commission of above offences is made out. He thus submits that the application under Section 482 CrPC is liable to be dismissed.
The law is well settled that at the stage of quashing of the summoning order, the Court has to only examine as to whether on the basis of the materials available in the summoning order, a prima facie case is made out against the applicants or not.
The Court has perused the the complaint, the statements and the summoning order and is of the view that at this stage it cannot be said that no offence is made out against the applicants. 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 application is dismissed.
The court below, while considering the bail applications of applicants nos. 5 and 7 shall bear in mind, the law laid down by the Division Bench of this Court in Brahm Singh & others Vs. State of U.P. and others, 2016 (7) A.D.J 151.
For a period of six weeks from today or till the applicants nos. 5 and 7 surrender and apply for bail whichever is earlier, no coercive action shall be taken against the said applicants. However, in case, said applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
Order Date :- 17.5.2018"
Keeping in view the observations recorded in the aforesaid order dated 17.5.2018 passed in Application u/s 482 No. - 16344 of 2018, relief sought in the present Application u/s 482 Cr.P.C. cannot be granted.
Application under section 482 Cr.P.C. is accordingly dismissed.
Order Date :- 26.10.2018
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