This petition under Section 482 CrPC has been filed for quashing summoning order dated 4.8.2018 passed by Judicial Magistrate, II, Lucknow in Case No.47210 of 2018 State of U.P. versus Subhash Kulshrestha and others arising out of Case Crime No.47 of 2018 under sections 406 504, 506 I.P.C., P.S. Sarojini Nagar, district Lucknow as also further proceedings of the said case.
Heard learned counsel for the applicants, Mr. Prashant Agarwal, learned counsel for private respondent as well as learned A.G.A. for the State and perused the record..
At the very outset, learned A.G.A. has raised a preliminary objection by submitting that the charge-sheet has not been challenged by applicant. Therefore, the cognizance taken by Magistrate and consequential summoning of applicant under aforesaid cannot be challenged.
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 that the private respondent No.2 has already filed a complaint under Section 138 Negotiable Instruments Act against the Director Prakash Kulshrestha for the amount in question, which is pending before the court below. It is further submitted that it is the Director Prakash Kulshrestha who had taken money from the informant.
It is further submitted that the Investigating Officer of the case without investigating the case properly has submitted a charge sheet and the concerned Magistrate without going into the depth of the matter has summoned the applicant in a cursory way.
It is further submitted that pendency of the instant criminal proceedings against the applicant is nothing but the abuse of the process of law and, therefore, the charge sheet as well as the summoning order whereby the applicant was summoned be quashed.
Learned Additional Government Advocate, however, controverts the submissions of learned counsel for applicant on the ground that this is not a stage where minute and meticulous exercise with regard to the appreciation of evidence may be done and truthfulness of the allegations could only be tested in a criminal trial and, therefore, the application is misconceived and liable to be dismissed.
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 applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C.
At this stage only primafacie case is to be seen in the light of the law laid down by Supreme Court in the 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, another (Para-10) 2005 SCC (Cr.) 283 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843.
Therefore, keeping in view the facts and circumstances of the case, the prayer for quashing the summoning order is hereby refused.
A seven judges Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 and Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC) have given various directions to criminal Courts for expeditious disposal of Bail applications. The ratio of above mentioned decisions is quite clear that, in the backdrop of Article 21 of the Constitution of India as the personal liberty of a person is at stake, the bail applications should be decided, expeditiously.
In backdrop of aforesaid decisions and keeping in view the entirety of facts and circumstances of the case and having regard to the submissions of learned counsel for the applicant, the petition is disposed of with a direction to the trial Court that if the applicants appear and surrender before the Court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in accordance with law.
Order Date :- 16.8.2021 kkb/