Court No. - 71
Case :- CRIMINAL APPEAL DEFECTIVE No. - 897 of 2019 Appellant :- Mahesh Kumar Pathak And 2 Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Ajatshatru Pandey Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
Order On Delay Condonation Application
This criminal appeal has been filed with the delay of 10 days.
Cause for delay in filing the appeal has been properly explained in the affidavit filed in support of delay condonation application.
Delay is condoned.
Order On Criminal Appeal
Heard learned counsel for the appellant, learned AGA for the State and perused the record.
This criminal appeal has been filed by the appellant with the prayer to quash the impugned order dated 28.03.2019 in Special Sessions Trial No.40 of 2019 (State Vs. Mahesh Kumar Pathak @ Gamman and others), arising out of Case Crime No. 02 of 2019, under Sections 325, 323, 504, 506 IPC and Section 3(1)(Da/Dha) of SC/ST Act, Police Station Parasrampur, District Basti.
As per the allegations made in the FIR, it is alleged that on 03.01.2019 at about 6:00 PM, while the victim was returning back to his house, the applicants had assaulted him by lathi, danda, due to which, he suffered injuries and has been medically examined. The allegation of abusing the victims with the name of their caste with an intention to humiliate and intimidate them in public view has also been made.
Learned counsel for the appellant has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the appellant and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the appellant and as such, impugned order cannot be quashed.
Moreover, at this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the summoning order is therefore refused.
However, it is directed that if the appellant appears/surrenders before the court below and applies for bail, his prayer for bail shall be considered and decided as expeditiously as possible after giving opportunity of hearing to both the parties.
With the aforesaid observations, this criminal appeal is finally disposed of.
Order Date :- 26.7.2019 Nadim