Court No. - 40
Case :- APPLICATION U/S 482 No. - 43305 of 2018
Applicant :- Prabhawati Devi
Opposite Party :- State Of Up And Another Counsel for Applicant :- Indresh Kumar Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned AGA for the State.
This application under Section 482 Cr.P.C has been filed with a prayer to quash the summoning order dated 1.6.2015 and NBW dated 18.8.2018, 15.9.2018 and 16.10.2018 passed by learned Judicial Magistrate/Civil Judge (Junior Division) Sant Kabir Nagar in complaint case no. 3877 of 2015 (Pradeep Kumar Rai Vs. Prabhawati Devi), under Sections 419, 420, 467, 468, 471 IPC, P.S. Dhanghata, District Sant Kabir Nagar.
It is submitted by learned counsel for the applicant that the opposite party no.2 moved an application dated 4.3.2014 under Section 156(3) Cr.P.C. before learned Magistrate seeking a direction for registration of FIR against the applicant, but the same has been treated as a complaint and learned Magistrate after recording the statement of complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. passed an order dated 1.6.2015 summoning the applicant to face trial under Sections 419, 420, 467, 468, 471 IPC. Challenging the legality and validity of the aforesaid summoning order dated 1.6.2015, it is submitted that the summoning order dated 1.6.2015 passed behind the back of applicant and no notice or information has been given to the applicant before passing the summoning order. The applicant having no knowledge about the proceedings, did not appear before the Court and as such NBW has been issued against the applicant in arbitrary manner without recording any reason of his satisfaction. The summoning order dated 1.6.2015 and NBW has been passed in flagrant violation of the mandate of law without applying his mind.
Per contra, learned AGA contended that the applicant was summoned in the year 2015 vide order dated 1.6.2015 and since then the applicant is absconding. The present application under Section 482 Cr.P.C. has been filed by the applicant after three and half years, therefore, the application is liable to be dismissed on the ground of laches also. Learned AGA has pointed out that even the applicant has not filed the complete order sheet of the case from 1.6.2015 to till date. There is no illegality or irregularity or manifest error in law in summoning the applicant vide order dated 1.6.2015.
It is submitted that from the material on record, it is clear that applicant has succeeded in getting her appointment on the post of Gram Rojgar Sewak on the basis of her forged High School mark-sheet.
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 relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in exercise of power conferred 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 impugned summoning order dated 1.6.2015 and NBW dated 18.8.2018, 15.9.2018 and 16.10.2018 is refused.
However, on the request made by the applicant, it is directed that if the applicant appears and surrender before the court below within 30 days from today and applies for bail, then the bail application of the applicant 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 applicants do 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 of.
Order Date :- 30.11.2018 AK Pandey