Allahabad High Court
Mantoo @ Mahendra Singh And 5 Others vs State Of U.P. And 2 Others on 16 March, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- APPLICATION U/S 482 No. - 4997 of 2021 Applicant :- Mantoo @ Mahendra Singh And 5 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Raghwendra Prasad Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr.Raghwendra Prasad Mishra, learned counsel for applicants and learned AGA for State.
2. This application under section 482 Cr.PC has been filed challenging the order dated 21.01.2021 passed in Case No. 2534.IX/13, under Section 419, 420, 467, 468, 471, 120B, I.P.C. Police Station-Chhata, District-Mathura pending in the Court of Judicial Magistrate, Chhata, District-Mathura.
4. Perusal of order dated 21.01.2021 goes to show that court below has issued non-bailable warrant against applicant fixing 06.03.2021 as the next date.
5. At the very outset, learned A.G.A. has invited attention of Court to order dated 21.8.2019, passed in Application U/s 482 No. 27016 of 2008 earlier filed by applicants, which reads as under:
"Heard Sri R.P. Mishra, learned counsel for the applicants and Sri Dinesh Kumar, learned counsel for the opposite party no.2 and Sri Sanjay Sngh, learned A.G.A.-I. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of charge sheet No.125/08 dated 10.7.2008 in Case Crime No.253/08, under Sections 419, 420, 467, 468, 471, 120-B I.P.C., Police Station Chhata, District Mathura.
The contention of learned counsel for the applicants is that no offence against the applicant 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.
For a period of 45 days from today or till the disposal of the discharge application whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not moves discharge application within 15 days from today 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. "
6. Learned A.G.A. has submitted that applicants had earlier approached this court by means of above noted Criminal Misc. Application. However applicants have not appeared before court below in spite of order dated 21.08.2019. Therefore court below has not committed any illegality in issuing non-bailable warrants against applicants. Furthermore proceedings of above mentioned case have remained held up for more than one year and 8 months on account of non-cooperation of applicants. On the aforesaid factual premise, he submits that applicants does not deserve any sympathy of this Court. He next submits that once final order dated 21.08.2019 has been passed and applicants have failed to comply the same within the time period fixed in the order then no separate Application under Section 482 Cr.P.C. shall lie as this Court cannot modify or rectify the order dated 21.08.2019. Remedy of applicants lies by moving appropriate application in earlier application under Section 482 Cr.P.C.
7. When confronted with aforesaid, learned counsel for applicants could not over come the submissions urged by learned A.G.A..
8. In view of aforesaid, no occasion arises before this Court to entertain this application.
9.. Present application fails and is liable to be dismissed.
10. It is accordingly dismissed.
Order Date :- 16.3.2021/YK