Court No. - 74
Case :- APPLICATION U/S 482 No. - 32998 of 2019 Applicant :- Ramkrit Yadav And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Janardan Yadav,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.,Radheshyam Yadav,Ram Narayan Dwivedi
Hon'ble Om Prakash-VII,J.
Counter affidavit filed today is taken on record.
Heard S/Shri Rajiv Lochan Shukla and Janardan Yadav, learned counsel for the applicants, Shri Ram Narayan Dwivedi, learned counsel for the opposite party no. 2 as well as learned AGA for the State.
The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the impugned order dated 01.08.2019 passed by the Additional Sessions Judge, Court No. 3, Ghazipur in S.T. No. 129 of 2018 (State of U.P. Vs. Ajay Yadav and others) arising out of Case Crime No. 203 of 2016, under Sections 307, 323, 498-A, 504, 506 IPC and Section 3/4 D.P. Act, Police Station Mardah, District Ghazipur.
It appears that applicants had earlier approached this Court invoking its inherent jurisdiction under Section 482 Cr.P.C. through application No. 19641 of 2017 and this Court on 03.07.2017 passed the following order:
"Heard learned counsel for the applicants and learned A.G.A. for the State.
The applicant no. 1 is husband of the victim and applicant nos. 2 to 5 are family members of the victim.
So far as applicant no. 1 is concerned, the following order is passed:
"The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 1325 of 2017, relating to case crime no. 203 of 2016, under Sections 498A, 307, 323, 504, 506 IPC and Section D.P. Act, P.S. Mardah, District Ghazipur pending in the court of learned Judicial Magistrate, Ghazipur.
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.
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 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 entire proceedings of the aforementioned case is refused.
However, it is directed that if the applicant 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 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 off."
So far as applicant nos. 2 to 5 are concerned, the following order is passed. "Heard learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 1325 of 2017, relating to case crime no. 203 of 2016, under Sections 498A, 307, 323, 504, 506 IPC and Section D.P. Act, P.S. Mardah, District Ghazipur pending in the court of learned Judicial Magistrate, Ghazipur 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. He pointed out certain documents and statements in support of his contention.
The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have 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 they are 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 is refused.
However, it is provided that in case the applicants move an appropriate application for discharge through counsel before the concerned Court below within a period of 45 days from today, the same shall be considered and disposed off as expeditiously as possible in accordance with law by the concerned court below preferably within a period of four months, thereafter.
For a period of five months from today or till the disposal of the discharge application whichever is earlier, no coercive action shall be taken against the applicants in the aforesaid case.
In case no such application is filed within a period of 45 days from today, as prescribed above, the present order shall stand automatically vacated.
With the aforesaid directions, this application is finally disposed off."
It further appears that in compliance of the directions given by this Court vide order dated 03.07.2017, applicants moved discharge application before the concerned Magistrate, where matter was pending, which was rejected and date was fixed for framing of charge. It also appears that since matter related to the offence under Section 307 IPC, concerned Magistrate did not pass order on the discharge application instead committed the case of co-accused to the Sessions Court. It is also evident from the record that case relating to the present applicants remained pending with the concerned Magistrate. It further appears that applicants straightway moved discharge application before the Sessions Judge concerned through counsel. Neither applicants obtained bail nor surrendered before the court concerned. Although impugned order dated 01.08.2019 was passed touching the merits of case yet present application is disposed of at this stage itself with the observations that if applicants move fresh application after surrendering before the court concerned and committal of the case to the court of Sessions, the court concerned shall decide the said application on merits without being influenced with the observations recorded in the order dated 01.08.2019. Hence, prayer made in the application is refused.
In the last, learned counsel has urged that direction for expeditious disposal of bail application of the applicants be given.
Hence, it is observed that in case applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants to surrender before the court concerned.
With the aforesaid observations, the application stands disposed of.
Order Date :- 17.12.2019 Sanjeet