Bhagwan Swaroop vs State Of U.P. And Another
2011 Latest Caselaw 5371 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 54
 

 
Case :- APPLICATION U/S 482 No. - 32626 of 2011
 

 
Petitioner :- Bhagwan Swaroop
 
Respondent :- State Of U.P. And Another
 
Petitioner Counsel :- Nitinjay Pandey
 
Respondent Counsel :- Govt.Advocate
 

 
Hon'ble Rajesh Dayal Khare,J.

Heard learned counsel for the applicant and learned A.G.A.

The present 482 Cr.P.C. petition has been filed for quashing the proceeding of Criminal Case No.1108 of 2010 (State Vs. Bhagwan Swaroop and others), under Sections 147, 325, 308, 323, 504, 506 I.P.C., P.S. Sakrauli, District Etah pending before Additional Chief Judicial Magistrate (Court No.18), Etah and also for quashing the charge-sheet dated 20.05.2010 and order dated 05.07.2010 against the applicant taking cognizance and order dated 29.08.2011 whereby N.B.W. has been issued against the applicant.

The contention of the counsel for the applicant 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 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, 245(2) or 227/228, 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 proceedings, charge sheet as well as orders impugned 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.

Order Date :- 21.10.2011

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