Court No. - 40
Case :- APPLICATION U/S 482 No. - 43274 of 2018
Applicant :- Kasan And 2 Others
Opposite Party :- State Of Up And Another
Counsel for Applicant :- Vinod Kumar Tirpathi,Manoj Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned AGA for the State.
This application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 11.10.2018 passed by Chief Judicial Magistrate, Bijnor in complaint case no. 1709 of 2018, under Sections 452, 323, 504, 506 IPC, Police Station Dhampur, District Bijnor pending in the Court of Chief Judicial Magistrate, Bijnor.
It is submitted by the learned counsel for the applicants that on the complaint dated 8.2.2018 of the opposite party no.2, learned Magistrate recorded the statement of complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C, who have given false statement before the court. Thereafter, learned Magistrate by the summoning order dated 11.10.2018 summoned the applicants under Sections 452, 323, 504, 506 IPC to face trial. It is submitted that injured Jafir has been examined by the Medical Officer, Dhampur District Binjor on 5.2.2018 but the all the injuries are simple in nature. It is submitted that the allegations of assaulting the complainant against the applicants by Lathi, danda, kick and fist are wholly false. Learned Magistrate without considering the facts and circumstances of the case passed the summoning order dated 11.10.2018 against the applicants. It is further submitted that in fact the applicant no.1 had lodged FIR on 4.5.2017 against the opposite party no.2 Jafir, which was registered as case crime no. 127 of 2017 in which charge-sheet has been submitted against the opposite party no.2, therefore, applicants have been falsely implicated and no offence is made out against the applicants.
Per contra, learned AGA has submitted that the applicants have beaten and assaulted the complainant/opposite party no.2 Jafir, who has received injury also. Copy of injury report of Jafir is enclosed as Annexure no.5 to the application, therefore, cognizable offence are fully made out against the applicants and the application is liable to be dismissed.
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 relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in exercise of power conferred 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. There is no illegality or irregularity or manifest error of law in the summoning order dated 11.10.2018.
The prayer for quashing the impugned summoning order dated 11.10.2018 and proceedings is refused.
However, on the request made by the applicant, it is directed that if the applicants appear and surrender before the court below within 45 days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled 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. For a period of 45 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. Since, the applicant no.3 is lady, therefore, the court below will take into account the first proviso of Clause II of Sub-section 1 of Section 437 of Cr.P.C. while deciding the bail application of the applicant no.3.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 30.11.2018 AK Pandey