Allahabad High Court
Maya Devi vs State Of U.P. And Another on 28 February, 2023
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- APPLICATION U/S 482 No. - 7379 of 2023 Applicant :- Maya Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
By means of this application under Section 482 Cr.P.C., the applicant has challenged the non-bailable warrants and proclamation under Section 82/83 CrPC dated 27.01.2023 issued by Judicial Magistrate-IInd, Mainpuri, in Case No. 1103 of 2020 (State Vs. Sarman and Others), arising out of Case Crime No. 229 of 2016, under Sections 467, 468, 471, 420, 506 IPC, Police Station Barnahal, District Mainpuri.
Perusal of the record shows that the applicant has earlier challenged the aforesaid proceedings in Application U/s 482 No. 16324 of 2017 (Balbir Singh and 6 Others Vs. State of U.P. and Another) and the same was disposed off vide order dated 23.05.2017. The said order is being quoted herein below :-
"Heard learned counsel for the applicants and learned A.G.A.
The present 482 Cr.P.C. petition has been filed for quashing the charge sheet dated 20.11.2016 and the cognizance taking order dated 25.1.2017 in Case No.245 of 2017 arising out of Case Crime No.229 of 2016, under Sections 467, 468, 471, 506, 420 I.P.C., Police Station Barnahal, District Mainpuri, pending before A.C.J.M.-II, Mainpuri.
The contention of learned counsel for the applicants is that civil dispute is pending between the parties, which has been dragged into criminal prosecution of the applicants at the behest of the opposite party no.2. It is next contended that no offence against the applicants is 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 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 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 they are free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the aforesaid proceedings is refused.
However, it is provided that if the applicants appear and surrender before the court below within 45 days from today and apply for bail, their prayer for bail may 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 45 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 off."
From perusal of the said order dated 23.05.2017, it is clearly evident that the applicant was directed to appear and surrender before the court below within 45 days and apply for bail, however, the applicant has not yet complied with the said order dated 23.05.2017 and as such, non-bailable warrants and proclamation under Section 82/83 CrPC has rightly been issued against the applicant.
In view of the above, the prayer for quashing the non bailable warrants and proclamation under Section 82/83 CrPC is refused.
This application under Section 482 CrPC is devoid of merit and is accordingly dismissed.
Order Date :- 28.2.2023 Nadim