Court No. - 40
Case :- APPLICATION U/S 482 No. - 43255 of 2018 Applicant :- Srimati Noor Bano And 2 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Shiv Sharan Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482, Cr.P.C. has been filed for quashing the entire proceedings of Complaint Case No.255 of 2017 (Kamruddin vs. Mithlesh and others) as well as summoning order dated 24.07.2018, under Sections 504, 506 I.P.C. Police Station Atruli, district Aligarh, pending in the court of Judicial Magistrate, Aligarh.
The contention of the counsel for the applicant 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 in support of his contention. It is submitted that on the complaint filed by the applicant no.1 before the Judicial Magistrate, Aligarh the opposite party no.2 was summoned by order dated 09.03.2018.
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 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. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 or 245 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 proceedings and summoning order is refused.
However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicants 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 30 days 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 applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 30.11.2018/SKD