Case :- APPLICATION U/S 482 No. - 21229 of 2019 Applicant :- Krishna And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Narendra Singh Chahar Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicants and learned A.G.A., for the State. Perused the record.
This application under Section 482 Cr.P.C., has been filed for quashing the charge sheet dated 12.2.2019 and cogniznace order dated 1.5.2019 as well as entire proceedings of S.T. No. 1888 of 2019 (State Vs. Krishna & Another), arising out of case crime no. 0598 of 2018, under Sections 323, 504, 324, 325, 506 IPC and Section 3 (1)(X) of S.C./S.T. Act, Police Station Gowardhan, District Mathura, pending in the court of Special Judge SC/ST Act, Mathura.
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 purpose of causing harassment. He pointed out certain documents and statements in support of his contention.
It was lastly submitted by the learned counsel for the applicants that the trial court may be directed to decide the bail application of the applicants as per the law laid down in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as the judgement of the Hon'ble Apex Court as reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. The aforesaid submissions is made on the ground that none of the offences alleged against the applicants are punishable with imprisonment for more than seven years.
From the perusal of the material on record and looking into the facts of the case, it cannot be said at this stage 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 the Apex Court in the following cases:- 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 prayer for quashing the entire proceeding of the aforesaid case is refused.
However, before proceeding to consider the prayer of the learned counsel for the applicants that a direction be issued to the court below to consider the bail application of the applicants on the same day, it will be useful to first refer to the provisions of Section 15 A (5) of S.C./S.T. Act and Section 41 (1) of Cr.P.C.
"(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing."
Section 41 (1) Cr.P.C., reads as follows:-
"(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied ,namely :-
(i) the police officer has reason to believe on the basis of such complaint , information or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence, or
(b) for proper investigation of the offence, or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement ,threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured , and the police officer shall record while making such arrest ,his reasons in writing ;"
According to Section 15 A (5) of S.C./S.T. Act the bail application under S.C./S.T. Act shall be decided after affording an opportunity of hearing on the bail application to the victim. Thus, the possibility of deciding the bail application of the accused on the same day is very remote.
Section 41 (1) Cr.P.C., provides that the offences for which punishment prescribed is imprisonment for a term upto 7 years, the accused may be kept in custody only if any of the conditions enumerated in Section 41 (1) (b) (ii) Cr.P.C., exist.
In the case of Arnesh Kumar Vs. State of Bihar and another reported in (2014) 8 SCC 273, Hon'ble Apex Court has held has follows:-
"If the arrest effected by police officer does not satisfy requirements of Section 41 of the Code, Magistrate is duty bound not to authorize his further detention and release the accused."
appears or is brought before court and files the bail application pertaining to an offence for which the maximum punishment provided is seven years, and such bail application cannot be disposed of on the same day, the court shall proceed to grant interim bail to the accused provided the same is not hit by any of the conditions prescribed in Section 41 (1) (b) (ii) Cr.P.C.
Accordingly, it is directed that in case the applicants file their bail applications and also pray for interim bail, their prayer for interim bail shall be considered and decided on the same day, and the regular bail shall be decided thereafter by affording an opportunity of hearing to the victim or his dependent as per the mandate of Section 15 A (5) S.C./S.T. Act.
With the aforesaid observations, this application under Section 482 Cr.P.C., stands finally disposed of Order Date :- 28.5.2019 Mini