Court No. - 52
Case :- APPLICATION U/S 482 No. - 6276 of 2018 Applicant :- Mohd. Aftab Khan And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- K.S. Tiwari,Vivek Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed for quashing entire criminal proceeding in Case No.618 of 2016 (State Versus Mohd. Aftab Khan and others) arising out of Case Crime No.49 of 2015 under Section 498A, 323, 504, 506 IPC and 3/4 D.P. Act, Police Station Chamanganj, District Kanpur Nagar pending in the court of Ist A.C.J.M. (J.D.), Kanpur Nagar.
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 purposes of harassment. He pointed out certain documents and statements in support of his contention.
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 no.1. All the submission made at the bar relates to the disputed question 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 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.
The prayer for quashing the proceedings as well as order impugned in respect of applicant no.1 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, his prayer for bail may be considered and decided on same day 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 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 no.1. However, in case, the applicant no.1 does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
So far as the case of applicant nos.2 to 5 are concerned, the matter requires consideration.
Learned A.G.A. has accepted notice on behalf of State-opposite party no.1.
Issue notice to opposite party no.2 returnable at an early date. Steps be taken within a week.
Opposite party no.2 may file counter affidavit within six weeks. Learned A.G.A. may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter.
List this case after expiry of aforesaid period.
Till the next date of listing, proceeding of Case No.618 of 2016 (State Versus Mohd. Aftab Khan and others) arising out of Case Crime No.49 of 2015 under Section 498A, 323, 504, 506 IPC and 3/4 D.P. Act, Police Station Chamanganj, District Kanpur Nagar pending in the court of Ist A.C.J.M. (J.D.), Kanpur Nagar in respect of applicant nos.2 to 5, namely, Fahima @ Bibbo, Mohd. Afaq Khan @ Nosey, Sushil Khan @ Mohd. Ahmad and Sony @ Mohd. Yaseen Khan shall remain stayed.
Order Date :- 26.2.2018 AK Pandey