Court No. - 40
Case :- APPLICATION U/S 482 No. - 43030 of 2018
Applicant :- Rajesh Kumar
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Shailesh Kumar Pathak,Ravindra Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned A.G.A.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Case No. 220 of 2009 (State Vs. Ajay Kumar Singh and others) arising out of Case Crime No. 223 of 2008, under Sections- 419, 420, 467, 468, 471 IPC, P. S.- Kotwali, District Ballia pending before the Chief Judicial Magistrate, Ballia as well as Non Bailable Warrant and notice under Section 82 Cr.P.C. dated 16.11.2011.
Applicant has filed this application after eight years of issuance of non-bailable warrant dated 16.11.2011.
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 submitted that applicant has no knowledge about the FIR, charge-sheet or any criminal proceeding up 4th September, 2018. Applicant has not cheated anyone.
From the perusal of the material on record as well as considering the fact that Non Bailable Warrant is continuing against the applicant since 16.11.2011 and learned Magistrate had taken cognizance of the case on 7.2.2009 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 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 applicant has got a right of discharge under Section 239 or 227/228 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 of the aforementioned case and Non Bailable Warrant dated 16.11.2011 is refused and declined.
However, it is directed that if the applicant appears and surrenders before the court below within 45 days from today and apply 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 45 days from today or till the applicant surrenders and applies for 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 of.
Order Date :- 29.11.2018 AK Pandey