Heard learned counsel for the applicants and the learned AGA for the State- respondent.
The present 482 Cr.P.C. petition has been filed for quashing of the proceedings of Case No. 1575 of 2008 (State v Javed Khan & others) under Sections 332/353 IPC and also under Section 7 of the Criminal Law Amendment Act, PS Chetganj, District Varanasi pending in the court of the Special Chief Judicial Magistrate, Varanasi as well as for quashing of the impugned order dated 04.08.2009 issuing non-bailable warrants against the applicants.
The contention of the learned counsel for the applicants is that applicant no. 1 is an ailing person and is the father of applicant no. 2, who is the only earning member of the family working in Mumbai. It is contended that the applicants have falsely been implicated in the aforesaid case and he could not appear before the court below on account of the ailment of his father (applicant no. 1) and his work at Mumbai.
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 submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr. P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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 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 they are free to take all the submissions in the said discharge application before the trial Court.
The prayer for quashing of the aforesaid proceedings and the impugned order, are hereby refused.
However, it is provided that if the applicant appears before the Court below within a period of 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid down by this Court in the case of Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-290 and in the recent decision of the Supreme Court dated 23.3.2009 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P. For a period of 30 days from today or till disposal of the bail application whichever is earlier, coercive action shall not 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.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 18.1.2010 shailesh