Court No. - 71
Case :- APPLICATION U/S 482 No. - 16994 of 2019
Applicant :- Prem Shankar Mishra And 2 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- M.N. Singh,Mahesh Narain Singh
Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the summoning order dated 7.7.2018 as well as entire proceeding of Complaint Case No. 136 of 2017(Doodh Nath Vs. Prem Shankar Mishra and others), under Sections 323, 364, 406, 427, 504, 506 I.P.C. and Section 3(1)(x) of SC/ST Act, P.S. Khorabar, district Gorakhpur, pending in the Court of Addl. District Judge/Special Judge (SC/ST Act), Gorakhpur.
The contention of learned counsel for the applicants is that no offence against the applicants 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.
Learned A.G.A. submitted that 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 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 including those which have been canvassed by him before this Court in this application.
At this stage, this Court is not in a position to weight the factual matrix of the case properly and accused has a right against summoning order to file a discharge application before the trial court raising all the grounds/grievances which have been taken in this application or which may have been taken, the trial court shall decide the discharge application as per law.
The prayer for quashing the proceeding is refused.
However, it is directed that in case the appellants-applicants appear and surrender before the court below within four weeks from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in the light of the 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. in accordance with law after hearing the public prosecutor.
For a period of four weeks from today, no coercive action shall be taken against the appellants-applicants. However, in case, the appellants- 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 of.
Order Date :- 29.4.2019 Mini