Allahabad High Court
Smt. Basanti @ Babita And Another vs State Of U.P. & Others on 10 August, 2010
Court No. - 45 Case :- APPLICATION U/S 482 No. - 4985 of 1996 Petitioner :- Smt. Basanti @ Babita And Another Respondent :- State Of U.P. & Others Petitioner Counsel :- R.K.Singh Respondent Counsel :- A.G.A. Hon'ble Rajesh Dayal Khare,J.
List has been revised. None appeared to press this application on behalf of the applicants. Heard learned A.G.A. for the State respondent.
Counter affidavit filed on behalf of the State is on record. Vide order dated 15.11.1996 this Court had issued notice to the opposite party no.3 and further proceedings of case no. 341/9 of 1996 was stayed. The order dated 6.1.1997 shows that notice issued to the opposite party no. 3 has been served upon him but till date no counter affidavit has been filed.
The present application has been filed for quashing the charge sheet no. 37 dated 23.4.1996 as well as non-bailable warrant dated 19.10.1996 pending in the court of Additional Chief Judicial Magistrate II, Muzaffar Nagar in original suit no. 341/9 of 1996 under Section 364 IPC.
It has been averred in the application that no offence against the applicants is disclosed and the present prosecution has been instituted with 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 applicants. All the submission made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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, 245(2) or 227/228, 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 charge sheet as well as non-bailable warrant is refused.
However, it is provided that if the applicants appear and surrender before the court below within a period of 30 days from today and apply for bail, then their prayer for bail shall be considered in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amarawati and another Vs. State of U.P., reported in 2004(57) ALR-290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh v. State of U.P., reported in 2009 (4) SCC 437, 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 disposed off. Interim order dated 15.11.1996 is hereby vacated.
The Registry of this Court is directed to communicate this order to the court concerned forthwith.
Order Date :- 10.8.2010 Ashish