Heard learned counsel for the applicants and learned A.G.A. The present 482 Cr.P.C. petition has been filed for quashing proceedings of criminal case no. 6051 of 2009 under sections 307, 506, I.P.C., P.S. Kotwali, District Shahjahanpur pending before the Chief Judicial Magistrate, Shahjahanpur.
The contention of the 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. It is contended that a civil litigation with regard to the house in question is pending between the parties and the present prosecution has been initiated at the behest of opposite party no.2 with the sole intention to harass the applicant which is nothing but a gross misuse of the process of the law. It is a no injury case and a civil litigation has been dragged into criminal prosecution of the applicant at the behest of the opposite party no.2, as a civil suit no. 591 of 2006 is pending between the parties. Learned counsel for the applicants has relied upon the judgment of the Hon'ble Apex Court in the case of Indra Mohan Goswami and others Vs. State of Uttranchal and others, reported in 2008 (1) JIC 737 (SC) in support of his contentions.
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 applicants. 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. Moreover, the applicants have got right of discharge under Section 239 or 227/228 Cr.P.C. as the case may 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 directed that the applicants shall appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall 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 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 applicants. However in case the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. With the aforesaid directions, this application is finally disposed off.
Order Date :- 4.1.2010 Shiraz