Court No. - 72
Case :- APPLICATION U/S 482 No. - 2528 of 2019 Applicant :- Nidhi Gupta @ Chadani And 6 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Muktesh Singh,Rajrshi Gupta Counsel for Opposite Party :- G.A.
Hon'ble Ajit Kumar,J.
Heard learned counsels for the parties.
By means of this application U/s 482 Cr.P.C., the applicants have approached this Court for quashing of the entire criminal proceedings of Case No. 2865 of 2015 (State Vs. Shailendra Gupta and another) arising out of Case No. 514 of 2013 under Sections 420, 467, 468, 471, 452, 504 & 506 I.P.C. P.S. Aonla, District Bareilly.
From the perusal of records, it transpires that applicants had earlier approached with the similar prayer vide application U/s 482 Cr.P.C. No. 21628 of 2014 (Shailendra Gupta & 3 Others) in which while the Court declined to interfere, had passed the following order:
"Heard Sri Santosh Shukla and Sri Ashutosh Prasad Shukla, learned counsels for the applicants, learned counsel for opposite party no. 2 and learned A.G.A. for the State.
The present 482 Cr.P.C., application has been filed for quashing the entire proceedings of criminal case no. 189 of 2014, under Sections 420, 467, 468, 471, 452, 504, 506 IPC pending in the court of Judicial Magistrate-1st, Aonla, District Bareilly.
It has been contended by learned counsel for the applicants that the applicants had earlier approached this Court by way of filing a 482 Cr.P.C. Application No. 11915 of 2014 which was disposed of finally vide order dated 17.04.2014, copy of which has been produced and the same is taken on record.
However, it is submitted that the applicants could not comply with the said order on account of personal difficulty and wrong advise of the local counsel.
It has also been informed that during the pendency of the present application proceedings under Sections 82 and 83 Cr.P.C. have been initiated against the applicants.
The contention of the counsel for the applicants is that no offence against the applicants are 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 applicants. 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. 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, as made above, is refused.
However, it is directed that if the applicants appear and surrender before the court below within 15 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 15 days from today or till the applicants surrender and apply for bail whichever is earlier, no coercive action shall be taken against the applicants and for the said period also no coercive action shall be taken against the applicants in pursuance of the proceedings u/s 82 and 83 Cr.P.C. 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."
In the considered opinion of the Court, the second 482 Cr.P.C. petition with the same prayer is not maintainable.
It is always open for the applicant to apply for extension of time earlier granted by this Court in the earlier 482 Cr.P.C. application or seek modification as he may be advised.
The present 482 Cr.P.C. application is misconceived and is rejected.
Order Date :- 22.1.2019 P Kesari