Court No. - 69
Case :- APPLICATION U/S 482 No. - 21990 of 2019 Applicant :- Mahesh Nagaich @ Goldi And 2 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Upendra Kumar Pushkar Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This petition under Section 482, Cr.P.C. has been filed for quashing the charge sheet no. 70 of 2019 dated 12.2.2019 as well as entire criminal proceeding of Criminal Case No. 18654 of 2019 (State Vs. Mahesh Nagaich and others ) arising out of Case Crime No. 1198 of 2018, under Sections 498A 323,504,506 I.P.C., and 3/4 of Dowry Prohibition Act,Police Station, New Agra, District Agra, pending before learned Chief Judicial Magistrate, District Agra.
It is contended by learned counsel for the applicants that the husband as well as entire family members of the husband- applicant no.1 have been falsely implicated in the present case by the opposite party no.2 on the general allegations, which is against the well settled principles of law as laid down by Hon'ble Apex Court reported in 2012 (10) SCC 741 in the matter of Geeta Mehrotra and another Vs. State of Uttar Pradesh.
So far as the husband-applicant no. 1, namely, Mahesh Nagaich @ Goldi is concerned following orders is being passed:-
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 applicant. All the submission made at the bar relates to the disputed question 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. Moreover, the applicant have got a right of discharge under Section 239 or 227/228 or 245 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 the proceedings is refused.
However, it is provided that if the applicant no.1 appears and surrenders before the court below within 30 days from today and applies 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 judgment 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 30 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 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 off so far as applicant no. 1 is concerned.
So far as the applicant nos. 2 and 3 are concerned the following orders is being passed:-
Issue notice to the opposite party no.2 returnable within four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks time to file counter affidavit. The opposite party no. 2 may also file counter affidavit within the said period. As prayed by the learned counsel for the applicants two week thereafter is granted for filing rejoinder affidavit.
List after expiry of the aforesaid period before appropriate Court.
Till the next date of listing, no coercive action shall be taken against the applicant nos. 2 and 3 in the aforesaid case.
Order Date :- 31.5.2019 aks