Court No. - 54
Case :- APPLICATION U/S 482 No. - 31438 of 2018
Applicant :- Vivek Singh
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Sharad Kumar Srivastava,Sunil Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant and learned A.G.A.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 04.07.2018 passed by Additional Chief Judicial Magistrate, Court No. 10, Azamgarh in Criminal Case No. 2149 of 2018 arising out of Case Crime NO. 318 of 1997(State VS. Rajesh Singh) under Section 323, 504, 506 IPC police station-Mehnagar, District-Azamgarh pending before learned Additional Chief Judicial Magistrate, Court No. 10, Azamgarh.
The contention of the counsel for the applicant is that no offence against the applicants are disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. The applicant was granted bail by the court concerned in the year 1997 and since then, he was not appearing. Learned Additional Chief Judicial Magistrate, Azamgarh issued non- bailable warrant against the applicant on 04.07.2018 which has now been challenged by the applicant through the present application.
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 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 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 Cr.P.C. as the case may be through a proper application for the said purpose and they is free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the proceedings of the aforementioned case is refused.
However, it is directed that if the applicant appears and surrenders before the court below within ten 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. Lal Kamlendra.
For a period of ten days from today or till the applicant surrenders and applies for 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 them. It is made clear that no further time would be granted to the applicant.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 17.9.2018 Sumit S