Court No. - 62
Case :- APPLICATION U/S 482 No. - 19170 of 2018
Applicant :- Saheem
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Udai Bhan Singh,Avanish Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Krishna Singh,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
This application under Section 482, Cr.P.C. has been filed for quashing the orders dated 4.8.2017, 4.9.2017, 12.10.2017, 24.11.2017, 15.12.2017, 27.1.2018, 12.3.2018 & 9.4.2018 in G.S.T. No.2017 of 2008 arising out of case crime No.468 of 2007, u/s 2/3 U.P. Gangsters Act, P.S. Kotwali, District Hathras (State vs. Vakil Khan and others) pending in the court of Additional District and Sessions Judge, Hathras.
The contention of learned 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 applicants. All the submissions made at the bar relate 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 under Sections 239 or 227 or 245 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 in aforesaid case and order impugned is refused.
However, it is provided that if the applicant appear and surrender before the court below within 45 days from today and apply for bail, then the bail applications of the applicant 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 judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 30.5.2018 Rishabh