Heard learned counsel for the applicants and learned A.G.A. for the State respondent.
The present application has been filed for quashing the proceedings of complaint case no. 2652 of 2009 under Section 147, 149, 323, 504, 506 IPC, P.S. Kotwali Fatehgarh District Farrukhabad pending in the court of Judicial Magistrate, Hawali Farrukahabad.
It is contended by the learned counsel for the applicants that the present criminal prosecution of the applicants is a counter blast to the proceedings initiated by the applicants against opposite party no. 2, therefore, criminal prosecution of the applicants is bad in law. It is also contended that Narendra Singh, applicant no.1, was hospitalized on the date of alleged incident, which was also falsify the story as set up by the opposite party no.2. It is further contended that the applicant no.4 is lady, therefore, her bail application may be considered on the same day. It is lastly contended that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intention for the purposes of harassment. He pointed out certain documents and statements 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 questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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 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 before the trial Court. The prayer for quashing the proceeding is refused.
However, it is provided that if the applicant no.4 appears and surrenders before the court below within a period of 30 days from today and applies for bail, then her payer for bail shall be considered, expeditiously, if possible on the same day, in accordance with law, after hearing the Public Prosecutor. It is further provided that if the applicants no. 1,2,3 and 5 appear and surrender before the court below within a period of 30 days from today and apply for bail, then their prayer for bail shall be considered in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-290 and in the recent decision of the Supreme Court dated 23.3.09 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P., after hearing the Public Prosecutor. 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 disposed off. Order Date :- 21.1.2010 Ashish