Allahabad High Court
S.N. Ali vs State Of U.P. on 4 August, 2010
Court No. - 45 Case :- APPLICATION U/S 482 No. - 974 of 1994 Petitioner :- S.N. Ali Respondent :- State Of U.P. Petitioner Counsel :- Braham Singh Respondent Counsel :- A.G.A. Hon'ble Rajesh Dayal Khare,J.
List revised none appears to press this application on behalf of applicant. Learned A.G.A. is present for State.
Vide order dated 15.03.1994 another Bench of this Court had issued notice to the opposite party no.2 and stayed the further proceedings of Case No. 5166 of 1992 under Section 498-A I.P.C., and 3/4 of Dowry Prohibition Act, pending before learned IIIrd Additional Chief Judicial Magistrate, District Moradabad.
The report of learned Chief Judicial Magistrate, Moradabad dated 28.04.1994 indicates that notice issued to the opposite party no.2 has been served but till date no counter affidavit has been filed by the opposite party no.2. The present 482 Cr.P.C. application has been filed for quashing the charge sheet and summoning order dated 24.04.1993 in Case No. 5166 of 1992 under Section 498A I.P.C., and Section 3/4 of Dowry Prohibition Act, pending before learned IIIrd Chief Judicial Magistrate, District Moradabad. It has been averred in the present application under Section 482 Cr.P.C., that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. 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 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 charge sheet and summoning order is refused. However, it is provided that if the applicant appears and surrenders before the court below within 30 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. 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 off. Interim order dated 15.03.1994 is hereby vacated.
Learned A.G.A. is directed to communicate the order passed by this Court in writing within three from today to the learned counsel for the applicant.
Let a certified copy of this order be issued to learned A.G.A. for necessary compliance.
Order Date :- 4.8.2010 S.Ali