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2011 DIGILAW 2905 (ALL)

Deshpal v. State of U. P. and Another

2011-12-20

R.D.KHARE

body2011
Rajesh Dayal Khare, J.;- Heard learned counsel for the applicant and learned A.G.A. 2. The present 482 Cr.P.C. petition has been filed for quashing the summoning order dated 11.2.2011 passed by learned Judicial Magistrate, Court No.3, Budaun, in criminal case no.257 of 2010, and also for complaint case no.2993 of 2009, under Sections 354, 323 and 506 I.P.C., Police Station Udhaiti, District Budaun. 3. The contention of the counsel for the applicant is that no offence against the applicantsis 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. 4. It is further contended that at the time of the alleged incident, the applicant was on duty as the applicant is a government servant and therefore the applicant has been falsely implicated in the present case. 5. 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, 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. 6. The prayer for quashing the summoning order as well as the proceedings of the complaint case is refused. 7. 6. The prayer for quashing the summoning order as well as the proceedings of the complaint case is refused. 7. However, it is directed that the applicant shall 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. 8. With the aforesaid directions, this application is finally disposed off.