Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 7499 of 2018
Petitioner :- Wahid And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Mukesh Kumar Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the petitioners and learned A.G.A.
The present petition under Article 227 of the Constitution of India has been filed for staying the effect and operation of order dated 14.08.2018 passed by Sessions Judge in Criminal Revision No. 20 of 2018(Wahid and others Vs. State of U.P. and others ) as well as order dated 16.03.2017 passed by Chief Judicial Magistrate, Kannauj in Complaint Case No.1205 of 2014, Musarrat Husain Vs. Wahid and others, under Sections 323, 504 and 506 IPC, Police Station-Kannauj, District- Kannauj.
The contention of the counsel for the petitioners is that no offence against the petitioners are 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 petitioners. 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 petitioners 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 made is refused.
However, it is directed that if the petitioners appear and surrender before the court below within 45 days from today and apply for bail, their 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 45 days from today or till the petitioners surrender and apply for bail whichever is earlier, no coercive action shall be taken against them. However, in case, the petitioners do 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 allowed beyond above-mentioned 45 days on any ground.
With the aforesaid directions, this petition is finally disposed of.
Order Date :- 29.10.2018 Sumit S