Court No. - 40
Case :- APPLICATION U/S 482 No. - 43277 of 2018 Applicant :- Mohammad Ali Ahmad Opposite Party :- State Of Up And Another Counsel for Applicant :- Manoj Kumar Singh,Manish Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
This application under Section 482, Cr.P.C. has been filed for quashing the order dated 15.10.2018 passed by learned Civil Judge (J.D.) Judicial Magistrate Bijnor in Complaint Case No. 798 of 2018 (Anees Ahmad Vs. Ali Ahmad) under Section 406 IPC, Police Station Badhapur, District Bijnor, whereby learned magistrate has rejected the discharge application of the applicant.
The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment and to make pressure upon the applicant to save himself in criminal prosecution in which he has already been summoned under section 138 of N.I.Act. Order dated 15.10.2018 has been passed without applying judicial mind.
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. Specific finding has been recorded by the learned magistrate in the order dated 15.10.2018 that the offence has been committed on 7.1.2015, therefore, complaint is not time barred.
The prayer for quashing the proceedings is refused.
However, it is provided that if the applicant appears and surrenders before the court below within 30 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 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 of.
Order Date :- 30.11.2018 AK Pandey