Allahabad High Court
Kamlesh Kumar And Others vs State Of U.P.And Another on 13 January, 2010
Court No. - 49 Case :- APPLICATION U/S 482 No. - 34092 of 2009 Petitioner :- Kamlesh Kumar And Others Respondent :- State Of U.P.And Another Petitioner Counsel :- Prem Shankar Mishra Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Dayal Khare,J.
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 21.12.2008 submitted by the Police in Case Crime No. 575 of 2008 under Sections 435, 506 and 427 IPC, PS Machhali Shahar, District Jaunpur pending before the Judicial Magistrate-I, Jaunpur.
The contention of the counsel for the applicants is that the matter is of civil nature which has been dragged into criminal prosecution, which is nothing but gross misuse of the process of law.
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 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 aforesaid charge sheet in the aforesaid case is refused.
However, it is directed that the applicants shall appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicant nos. 2 and 3 who are ladies shall be considered and disposed of, if possible on the same day by the court below and for the remaining applicant, 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 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.
Order Date :- 13.1.2010 shailesh