Allahabad High Court
Mamta Sharma & Others vs State Of U.P. & Another on 9 August, 2010
Court No. - 45 Case :- APPLICATION U/S 482 No. - 489 of 1995 Petitioner :- Mamta Sharma & Others Respondent :- State Of U.P. & Another Petitioner Counsel :- S.Sharan,Smt. Sudha Upadhyay Respondent Counsel :- A.K.Gupta Hon'ble Rajesh Dayal Khare,J.
List revised. None appears to press the present petition on behalf of the applicants. Learned AGA is present on behalf of the State-respondent.
This Court vide order dated 17.02.1995 had issued notice to the opposite party no. 2 and in the meantime further proceedings of criminal case no. 5200 of 1994 (New No. 1265 of 1994) under sections 323, 504, 506 IPC pending before the Addl. Munsif Magistrate III, Budaun were stayed.
Office report dated 07.08.2010 shows that notice sent to the opposite party no. 2 has been served. However, no counter affidavit has been filed.
The present 482 Petition has been filed for quashing of the proceedings of criminal case no. 5200 of 1994 (New No. 1265 of 1994) under sections 323, 504, 506 IPC pending before the Addl. Munsif Magistrate III, Budaun.
The contention on behalf of the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. Certain documents and statements have been appended in support of the 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 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 Section 239 or 227/228 or 245 Cr.P.C. as the case may 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 refused.
However, it is provided that since all the charged sections are bailable, therefore, if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicants shall be considered 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. 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. Interim order dated 17.02.1995 is hereby vacated.
The Registry is directed to communicate the order of this Court to the court concerned forthwith.
Order Date :- 9.8.2010 yachna