Sharda Prasad and ors. Vs. State of U.P. and ors. - Court Judgment

Excerpt:
[mr. j.s. khehar, chief justice ; mrs. justice manjula chellur, j.j.] these writ petitions are filed under articles 226 of the constitution of india praying to quash the notification dated 23.09.2009 issued by r-2 as at annexure-a, quash the notification dated 01.10.2009 issued by r-2 as at annexure-b, quash the notification dated 01.20.2009 issued by r-2 as at annexure-c, etc.1. heard learned counsel for the applicants and learned a.g.a. the present 482 cr.p.c. petition has been filed for quashing proceedings of the case no. 411 of 2008 (vidhyawati v. sharda prasad and others), under sections 395/397 i.p.c., police station jaswantnagar district etawah pending before learned special judge (dacoity affected area act), district etawah as well as for quashing of the summoning order dated 13.01.2010 issued in the aforesaid case. 2. the contention of the counsel for the applicants is 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. 3. it is contended by learned counsel for the applicants that the f.i.r., was lodged after lapse of more than two years of the alleged incident and that the applicant has been falsely implicated due to political reasons. it is next contended that the matter is purely of civil nature, therefore, criminal prosecution of the applicants is bad in law. 4. 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. 5. 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 v. state of punjab, a.i.r. 1960 s.c. 866, state of haryana v. bhajan lal, 1992 scc (cr.) 426, state of bihar v. p.p.sharma, 1992 scc (cr.) 192 and lastly zandu pharmaceutical works ltd. v. mohd. saraful haq and another (para-10) 2005 scc (cr.) 283. 6. 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 or 245 cr.p.c. as the case may be through aproper application for the said purpose and they are free to take all the submissions in the said discharge application before the trial court. 7. the prayer for quashing the proceedings and summoning order 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, their 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 v. 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 v. 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. 8. 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.

Judgment:
1. Heard learned counsel for the applicants and learned A.G.A. The present 482 Cr.P.C. petition has been filed for quashing proceedings of the Case No. 411 of 2008 (Vidhyawati v. Sharda Prasad and others), under Sections 395/397 I.P.C., Police Station Jaswantnagar District Etawah pending before learned Special Judge (Dacoity Affected Area Act), District Etawah as well as for quashing of the summoning order dated 13.01.2010 issued in the aforesaid case.

2. The contention of the counsel for the applicants is 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.

3. It is contended by learned counsel for the applicants that the F.I.R., was lodged after lapse of more than two years of the alleged incident and that the applicant has been falsely implicated due to political reasons. It is next contended that the matter is purely of civil nature, therefore, criminal prosecution of the applicants is bad in law.

4. 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.

5. 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 v. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

6. 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 or 245 Cr.P.C. as the case may be through aproper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.

7. The prayer for quashing the proceedings and summoning order 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, their 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 v. 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 v. 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.

8. 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.