Heard learned counsel for the applicant and learned A.G.A. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of Sessions Trial No. 26 of 2006, arising out of Case Crime No. 448 of 2005, under Sections 409, 465, 467, 120B I.P.C., and Section 13(1) Prevention of Anti-Corruption Act, 1988 pending before learned Special Judge (Anti Corruption), Varanasi as well as for quashing the order dated 19.09.2006, whereby cognizance has been taken against the applicant under the charged Sections.
The contention of the counsel for the applicant is that no offence against the applicant 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 further contended by learned counsel for the applicant that departmental proceedings are still pending against the applicant and charge sheet has been submitted which is bad in law.
Learned A.G.A. has contended that there is no illegality in submission of charge sheet, the same is perfectly legal, just and proper which requires no interference by this Court in exercise of power conferred under 482 Cr.P.C. jurisdiction.
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 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 applicant has 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 he is free to take all the submissions in the said discharge application before the Trial Court. The prayer for quashing the proceedings and the order dated 19.09.2006 is refused.
However, it is directed that the applicant shall appear and surrender 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 or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However in case the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this application is finally disposed off. Order Date :- 4.1.2010 S.Ali