Court No. - 55
Case :- APPLICATION U/S 482 No. - 45938 of 2018
Applicant :- Shamsher
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Kumar Roy Sharma Counsel for Opposite Party :- G.A.
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the Non-Bailable Warrant dated 25.10.2018 issued by Chief Judicial Magistrate, Hathras in Complaint Case No. 843 of 2016 (Nagma Vs. Shamsher), under Sections 376, 452, 342 I.P.C., Police Station Kotwali, District Hathras, pending in the court of Chief Judicial Magistrate, Hathras.
It is submitted by learned counsel for the applicant that the present complaint has been filed with malicious intention of the opposite party no. 2. It is further submitted that an F.I.R. dated 4.12.2015 was lodged which was registered under Sections 452, 376, 342 I.P.C., Police Station Hathras Kotwali, District Hathras. It is further submitted that against the said F.I.R., after investigation, final report was submitted by the police. It is next submitted that no protest has been filed and the opposite party no. 2 filed two complaints against the applicant, one on 29.3.2016 in which summoning order dated 28.11.2016 was issued under Sections 498A, 323, 504, 506 I.P.C. and 3/4 Dowry Prohibition Act and second complaint dated 25.3.2016 was filed for the same allegation which was mentioned in the F.I.R. dated 4.12.2015. At this stage, the applicant had challenged the complaint by filing an Application U/S 482 No. 39209 of 2017 before this Court which was disposed of with a direction to the applicant to move an application under Section 210 Cr.P.C. before the Magistrate concerned. The application filed by the applicant under Section 210 Cr.P.C. was dismissed vide order 8.3.2018 by the Chief Judicial Magistrate, Hathras. The applicant again challenged the same by filing Application U/S 482 No. 28305 of 2018 which was dismissed by this Court vide order dated 29.8.2018.
Now the applicant has challenged the entire proceedings of the present complaint case. It is submitted that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purpose of causing harassment. He pointed out certain documents and statements in support of his contention. At this stage, the argument raised by learned counsel for the applicant involves factual disputes and appraisal of evidence.
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 at this stage. 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 prayer for quashing the entire proceeding of the aforesaid case is refused.
However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicant appears and surrenders before the court below within 45 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.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 18.12.2018 Rmk.