Allahabad High Court
Adarsh Kumar And Others vs State Of U.P.& Others on 5 August, 2010
Court No. - 45 Case :- APPLICATION U/S 482 No. - 3713 of 1994 Petitioner :- Adarsh Kumar And Others Respondent :- State Of U.P.& Others Petitioner Counsel :- S. Saun Respondent Counsel :- Aga,A.M. Tripathi,Anupam Shukla Hon'ble Rajesh Dayal Khare,J.
List revised none appears to press this application on behalf of applicants This Court vide order dated 29.06.1994 had issued notice to the opposite party no.3 and stayed the further proceedings of Case No. 308 of 1992, under Sections 406, 4908-A I.P.C. pending before learned IIIrd Additional Chief Judicial Magistrate, District Etawah.
Although notice has been served upon the opposite party no.2 but no counter affidavit has been filed till date.
Learned A.G.A. is present on behalf of State.
The present 482 Cr.P.C. petition has been filed for quashing the proceedings of Case No. 308 of 1992, pending before learned IIIrd Additional Chief Judicial Magistrate, District Etawah.
It has been averred in the present application 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 proceedings 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 29.06.1994 is hereby vacated.
The Registrar General of this Court is directed to communicate the order of this Court to the concerned Court below forthwith.
Order Date :- 5.8.2010 S.Ali