Court No. - 69
Case :- APPLICATION U/S 482 No. - 36309 of 2019
Applicant :- Ramesh Kushwaha
Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Baijant Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Ali Zamin,J.
The present application under Section 482 Cr.P.C. has been filed for quashing chargesheet dated 03.02.2018 as Charge-sheet No.73 of 2018 as well as entire criminal proceedings of Criminal Case No.1819 of 2018 arising out of Case Crime No.1097 of 2017, under Section 2/3 Prevention of Damage to Public Property Act, 1984, P.S. Kasia, District Kushinagar pending in the court of Additional Chief Judicial Magistrate Kasia, Kushinagar.
Heard Sri Raghvendra Saran Tieari holding brief of Sri Baijant Kumar Mishra, learned counsel for the applicant and learned A.G.A. for the State and perused the record.
Learned counsel for the applicant submitted that as per the prosecution story, the applicant has encroached the land of canal while as per Khasra No.569, Tehsil Kaska, District Kushinagar, the said land is the land of his grandfather. Under the Scheme of Swachha Bharat Abhiyan latrine has been constructed by the village head and he has falsely been implicated in this case.
Learned A.G.A. opposed application and submitted that he contentions raised by the applicant are to be decided by the trial court after considering the evidences led by the parties.
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 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.
Considering the facts and circumstances of the case, I do not find any ground to quash chargesheet and the criminal proceedings in the aforementioned case, therefore, the prayer for quashing the same is hereby refused.
However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within four weeks 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 judgment 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 four weeks 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 disposed of. Order Date :- 30.9.2019 Asha