Court No. - 55
Case :- APPLICATION U/S 482 No. - 36717 of 2018
Applicant :- Tej Bahadur Singh
Opposite Party :- State Of Up And Another
Counsel for Applicant :- Jagadeesh Narayan Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard Sri Jagadeesh Narayan Dwivedi, learned counsel for the applicant and Sri Ravi Singh Parihar, learned A.G.A. for the State.
The present 482 Cr.P.C., application has been filed for quashing the proceedings arising out of Complaint Case No.142 of 2016 (Sunil Singh Vs. Tej Bahadur Singh), under Sections 354, 323, 380, 506 I.P.C., Police Station Aura, District Fatehpur and as well as the summoning order dated 15.2.2018.
It is contended by learned counsel for the applicants that the present proceedings is nothing but as a counter blast to the proceedings initiated by the applicants side against the opposite party no.2. It is further submitted that the applicant and the complainant are the real brothers. It is further contended 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 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 applicant. 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 applicant has 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 summoning order as well as aforesaid proceedings are refused.
However, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and apply for bail, then the bail application of the applicant 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 applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 29.10.2018 Dev/-