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2016 DIGILAW 2806 (ALL)

Saud Ali Khan Sherwani v. State of U. P.

2016-08-12

ABHAI KUMAR

body2016
JUDGMENT Abhai Kumar,J. Certified copy of the sale deed filed by respondent no. 4 is taken on record. Heard the learned counsel for the applicant, learned A.G.A. for the State of U.P. as well as learned counsel for respondent no. 3. As per direction of this court a certified copy of the sale deed that has been filed by the applicant in which interpolation is said to have been made is being filed by respondent no.3 from that it can be inferred that there is addition in page 4 of the Saledeed wherein house number has been added. It is further submitted by the learned counsel for respondent no. 3 that as per Mohammedan Law only 1/3rd portion of the property can be given by will. In response to that learned counsel for the applicant stated that the property in will is a part of the property in the ownership of the testator Smt. Ishrat Begum. From the facts narrated in the application it can be inferred that a cognizable offence is made out and in the circumstances all the facts that are being disputed are subject to trial before the trial court and disputed points regarding facts cannot be entered into before this Court. 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.IR. 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 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. After hearing the learned counsel for the parties and after perusing the averments made in the present application, the prayer for quashing the proceedings of the aforementioned case is refused. Learned counsel for the applicant submitted that a direction be given to courts below for consideration of bail of the applicant in the light of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P. reported in 2004 (57) ALR 290 and as approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. reported in 2009 (3) ADJ 322 (SC). Above mentioned Full Bench decision of this Court and the decision of Hon'ble Apex Court are binding on the lower courts. They must be followed in letter and spirit. There is no need to pass separate orders in this regard in view of the law laid down by Division Bench of this Court in the case of Brahm Singh and others Vs. State of U.P. and others in Criminal Misc. Writ Petition No. 15609 of 2016 on 8.7.2016. Accordingly, this application under Section 482 Cr.P.C. is hereby disposed of.