HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- MISC. SINGLE No. - 3879 of 2014 Petitioner :- Ashwani Kumar Mishra & 4 Others Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Home & 3 Others Counsel for Petitioner :- Ajay Kumar Singh Tomar Counsel for Respondent :- Govt. Advocate,Rajiva Dubey Hon'ble Bala Krishna Narayana,J.
Heard learned counsel for the petitioners and learned A.G.A. and perused the record.
This petition has been filed by the petitioners with the prayer to quash the entire proceedings of Crl. Case no. 5384 of 2012, under sections 323, 347, 493, 496, 506 and 120B I.P.C., P.S. Kotwali Sadar, district-Lakhimpur Kheri as well as the impugned order dated 4.7.2013.
By an order dated 18.7.2014 this matter was referred to the Mediation & Conciliation Cerntre of this Court.
As per the report of the Mediation & Conciliation Cerntre, High Court, Lucknow Bench, Lucknow dated 15.09.2014, mediation between the parties has failed.
In view of the above, I proceed to examine the matter on merits.
The contention of the counsel for the applicants is that no offence against the applicants are 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 applicant. All the submissions made at the bar relate to the disputed questions 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 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 of the aforementioned case and the chargesheet is refused.
However, it is directed that if the applicants appear and surrender before the court below within 45 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.
At this stage learned counsel for the petitioners submitted that out of the sum of Rs. 20,000/- (Rs. twenty thousand) deposited by the petitioners pursuant to the order of this Court dated 18.7.2014 of which Rs. 5,000/- was paid to the respondent no. 4, the remaining amount of Rs. 15,000/- may be refunded to the petitioners.
Considering the aforesaid submission of learned counsel for the petitioners, it is directed that balance amount of Rs.15,000/- shall be refunded to the petitioner no. 1 on his proper identification or to his counsel, Sri Ajay Kumar Singh Tomar within three weeks.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 26.11.2015/Faridul