Court No. - 75
Case :- APPLICATION U/S 482 No. - 10420 of 2018 Applicant :- Savir And 3 Others Opposite Party :- State Of U.P. Another Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.,Pawan Kumar Shukla
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicants, learned AGA for the State, Shri Pawan Kumar Shukla, learned counsel for Opposite Party No.2 and perused the record.
This application under Section 482 CrPC has been filed by the applicants with the prayer to quash the Charge-Sheet No.293 of 2017 as well as the entire proceedings of N.C.R. No.07 of 2017, under Section 323 IPC, Police Station Mundhapandey, District Moradabad.
As per the allegations made in the N.C.R., it is alleged that on 29.01.2017 at about 12:00 A.M., the applicants had assaulted the victim by lathi, danda, sharp edged weapon and iron rod. On account of the assault made by the applicants, victims Shahid Hussain, Mrs. Afsana and Nazia had suffered injuries on their persons and have been medically examined in which charge- sheet was submitted under Section 323 I.P.C. and learned Magistrate has taken cognizance.
Learned counsel for the applicants has stated that non cognizable cases under Section 155 of the CrPC was registered against them and the police by the orders of the Magistrate has investigated the case and submitted the charge-sheet against the applicants under Section 323 CrPC on which the learned Magistrate has taken conginzance and is proceeding with the case.
Learned counsel for the applicants has next submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicants and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention. He has further stated that the provision of Section 2(d) CrPC would be applicable in the present case.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, charge-sheet as well as entire proceedings cannot be quashed. The provision of Section 2(d) CrPC would not be applicable in the present case Moreover, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
Furthermore, the investigation in the present case has been done by the orders of the Magistrate under Section 155(2) and on conclusion of the investigation charge-sheet has been submitted under Section 323 CrPC on which learned Magistrate has taken cognizance and is proceeding as such the provisions of Section 2(d) CrPC would not be applicable in the present case.
The prayer for quashing the charge-sheet as well as entire proceedings is therefore refused.
However, it is directed that if the applicants appear/surrender 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 settled law laid down 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 in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
For a period of 30 days from today or till the applicants surrender and apply for bail, whichever is earlier, no coercive action shall be taken against them. However, in case, the applicants does not appear before the court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid observations, this application under Section 482 CrPC is finally disposed of.
Order Date :- 27.11.2019 Zafar