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2013 DIGILAW 1660 (ALL)

Yaseen and 5 Ors. v. State of U. P. and Another

2013-06-20

RAMESH SINHA

body2013
Ramesh Sinha, J.— Heard Sri Md. Imran Khan, learned counsel for the applicants and learned A.G.A. This application under Section 482 Cr.P.C. has been filed for quashing the charge sheet as well as the entire proceedings of case crime no.123 of 2012, u/s 498-A, 506 IPC, P.S. Mahila Thana, district Muzaffar Nagar pending in the court of CJM, Muzaffar Nagar. Learned counsel for the applicants submits that the husband of opposite party no.2 namely Zahid is already in jail in the present case. The applicants are the family members of husband of opposite party no.2 and marriage between the Zahid and opposite party no.2 was solemnized 15 years back. There is no specific allegation against them in the complaint as well as in the statement of the complainant and it's witnesses u/s 200 and 202 Cr.P.C., hence, their prosecution is bad in the eyes of law. The learned counsel for the applicants has placed reliance on the judgment of Apex Court in the case of Geeta Mehrotra Vs. State of U.P. and others reported in 2012(10)ADJ 464. The further contention of learned 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. 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 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. 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 right of discharge under Sections 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 entire proceeding based on the charge sheet is refused. Notice on behalf of opposite party no.1 has been accepted by learned A.G.A. Issue notice to opposite party no.2 returnable within four weeks at the address given in the application. Opposite party no.2 may file counter affidavit within four weeks. Learned A.G.A. may also file counter affidavit within the same period. Rejoinder affidavit may thereafter be filed within two weeks. List immediately after expiry of the aforesaid period before appropriate Bench. Till the next date of listing, further proceedings against the applicants namely Yaseen, Dinna, Abid, Babar, Shabnam and Batul in pursuant to the above mentioned case shall remain stayed. It is made clear that the proceeding against husband of opposite party no.2 namely Zahid shall go on, if there is no legal impediment. _____________