Court No. - 40
Case :- APPLICATION U/S 482 No. - 9345 of 2005
Applicant :- Nafees
Opposite Party :- State Of U.P. Thru Sec. Home And Another
Counsel for Applicant :- Lihazur R. Khan
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge-sheet dated 24.8.2002 and cognizance order dated 13.9.2002 in Criminal Case No. 3799 of 2002 (State Vs. Imran and others) under Sections 363, 366, 376 IPC, Police Station Badaut pending before the court of Chief Judicial Magistrate, Baghpat.
As per the office report dated 25.11.2005, notice was issued to the opposite party no.2 has been returned back after service but no counter affidavit has been filed on behalf of the opposite party no.2.
The contention of the counsel for the applicant is that the applicant is not named in the FIR. He further submitted that the statement under Section 161 Cr.P.C.of the prosecutrix Sajida was recorded on 19.6.2002 in which also she has not made any allegation against the applicant. It is also submitted by learned counsel for the applicant that the age of the victim has been wrongly mentioned as 14 years in the FIR though she was major at that time. Further contention of the counsel for the applicant is that he has been falsely implicated. Trial of the applicant has been stayed by the High Court vide order dated 20.7.2005, therefore, trial of the applicant has not proceeded further.
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 submissions made at the bar relate to the disputed questions 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 of the aforementioned case is refused and declined. Interim order dated 20.7.2005 stands vacated.Moreover, the applicant has got a right of discharge under Section 239 or 227/228 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 as per law before the Trial Court.
As requested, the applicant is permitted to appear before the concerned court within a month from today through his counsel and move an application claiming discharge provided if it has not already been decided. The concerned court shall after hearing the counsel decide the application on merits in accordance with law within a period which shall not exceed a period of three months from today.
It is clarified that if applicant does not avail of this order within the stipulated period of time no application for extension of time shall be entertained.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 26.11.2018 AK Pandey