Heard learned counsel for the applicant and the learned AGA for the State.
The present petition under Section 482 Cr.P.C. has been filed for quashing the proceedings of Case No. 220 of 2009 (State v Ajai Kumar & others) in Case Crime No. 223 of 2008 under Sections 419, 420, 467, 468 and 471 IPC, PS Kotwali, District Ballia pending in the court of the Chief Judicial Magistrate, Ballia and also for quashing of the charge sheet dated 14.12.2008.
It is contended by learned counsel for the applicant that for the same alleged offence, two FIRs i.e. one on 27.07.2008 and the other on 06.08.2008) were lodged against the applicants, copies of which has been annexed as annexures 1 and 3 to the accompanying affidavit. It is next contended that pursuant to one FIR, final report has been filed but pursuant to the second FIR, charge sheet has been filed against the applicant, who is only a stamp vendor and is in no way involved in the aforesaid offence.
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 charge sheet dated 14.12.2008 in the aforesaid case is refused.
However, it is directed that the applicant shall 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 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 dispose off. Order Date :- 2.2.2010 shailesh