Court No. - 52
Case :- APPLICATION U/S 482 No. - 7213 of 2019 Applicant :- Nazar Mohammad @ Nazar Ali And Another Opposite Party :- State Of U.P.
Counsel for Applicant :- Abhishek Gupta Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Abhishek Gupta, learned counsel for the applicants and the learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings including charge-sheet dated 26.03.2018 and set aside the cognizance order dated 28.04.2018 passed by Additional Chief Judicial Magistrate-I, Gautam Budh Nagar as well as summoning order dated 05.11.2018 passed by Sessions Judge, Gautam Budh Nagar in Session Trial Case No. 683 of 2018 (State Vs.Nazar Mohammad and others), arising out of Case Crime No.36 of 2018 under Section 307 I.P.C., P.S. Jarcha, District-Gautam Budh Nagar.
Learned counsel for the applicant has submitted that opposite party no.2 has concocted and fabricated entire case and falsely implicated the applicant. The prosecution version of firing by the applicant is absolutely false and in the X-ray report the doctor did not find any pellet and found that the injuries sustained by the injured were simple in nature.It is argued that civil litigation between the parties is going on and as an arm twisting measure, the opposite party no.2 has concocted the entire case. Therefore, the instant proceeding smacks mala fide and is liable to be quashed.
Per contra, learned A.G.A. appearing for the State has submitted that in the F.I.R. and statement of the witnesses, it is stated that the firing was resorted with an intention to kill the injured. At this stage, merely because the injuries were found to be simple, it cannot be said that prima facie no offence under Section 307 I.P.C. is made. Therefore, the instant criminal misc. application under Section 482 Cr.P.C. may be dismissed.
In view of the submission made by the learned counsel for the applicants, the application so far as it relates to seeking quashing of the charge sheet and the entire proceeding and so far as it relates to seeking stay of the proceeding, stands dismissed.
It is stated that applicant no.1 has surrendered before the court concerned and obtained bail. So far as applicant no.2 is concerned, he may be allowed some time to appear before the court concerned and obtain bail.
However, it is directed that if the applicant no.2 appears and surrenders before the court below within 30 days from today and applies for bail,his 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, no coercive action shall be taken against the applicant no.2. However, in case, the applicant no.2 does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid observations, this application is finally disposed off.
Order Date :- 25.2.2019 MN/-