Heard learned counsel for the applicants and learned A.G.A.
The present 482 Cr.P.C. petition has been filed for quashing the criminal proceeding against the applicant in case No.860 of 2006 arising out of case Crime No. 119 of 2002, under Sections 323, 324,307 I.P.C., P.S. Auraiya, district Auraiya (State Vs. Vishnu Narain @ Puttan Pandey) pending before the Upper Civil Judge/ J.M. Auraiya.
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 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 right of discharge under Sections 239, 227/228 or 245(2) Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court. The prayer for quashing the proceedings is hereby 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 their prayer for bail shall be considered in view of the settled law laid by Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P., reported in 2004 (57) ALR 290 and in the recent decision of the Supreme Court dated 23.3.2009 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh Vs. State of U.P. after hearing the Public Prosecutor. 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 applicants. 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 :- 14.6.2010 Rkb