Court No. - 64
Case :- APPLICATION U/S 482 No. - 46882 of 2019
Applicant :- Radhey Shyam And 2 Ors
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Diwakar Tiwari,Shrikant Chaturvedi
Counsel for Opposite Party :- G.A..
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482, Cr.P.C. has been filed for quashing the charge sheet dated 5.4.2018, summoning order dated 1.10.2019 passed by the learned A.C.J.M., Court No. 8, Allahabad as well as the stay the entire proceedings of case No. 2066 of 2019 , under Sections 323, 504, 427, 452 I.P.C. police station- Handia, district -Allahabad, pending in the court of A.C.J.M., Court No. 8, Allahabad .
The contention of the 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, as the Investigating Officer has submitted charge sheet against the applicants without considering the material and evidence available during investigation. He further submits that learned Magistrate has passed the impugned order without following the procedure under Section 468 Cr.P.C.
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 submission made at the bar relates to the disputed question 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. Moreover, the applicants have got a right of discharge according to the provisions prescribed in Cr.P.C. as the case may be 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 is refused.
However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicant be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme Court. 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 applicants. 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 of.
Order Date :- 18.12.2019 Anuj Singh