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2016 DIGILAW 3256 (ALL)

Brijendra Kumar v. State of U. P.

2016-09-22

RAJESH DAYAL KHARE

body2016
JUDGMENT Rajesh Dayal Khare,J. Heard learned counsel for the petitioner and learned A.G.A. The present petition has been filed for setting aside the summoning order dated 29.04.2015 passed by learned Additional Chief Judicial Magistrate, Court No.5, District Etawah in F.R. No. 03 of 2015 under Section 420 I.P.C., Police Station Bareh, District Etawah as well as for setting aside the Judgement and order dated 14.09.2016 passed by learned Additional Sessions Judge, Court No.8, District Etawah in Criminal Revision No. 161 of 2015, whereby criminal r evision field against the aforesaid order has been rejected. Learned counsel for the petitioner contends that the petitioner is a Rozgar Sewak and as per enquiry report dated 12.03.2015, copy of which is annexed as Annexure-9 to the petition, no role has been assigned to the petitioner and the allegations have been levelled against the Pradhan, therefore, it is contended that the summoning order is illegal against which revision was filed which too has been illegally rejected. Learned counsel has next contended that no offence against the petitioner 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 petitioner. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Article 227 of the Constitution of India. 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 petitioner has got a right of discharge under Section 239 or 227/228, or 245 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 disputed defence of the accused cannot be considered at this stage. Moreover, the petitioner has got a right of discharge under Section 239 or 227/228, or 245 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 orders impugned is refused. However, it is provided that if the petitioner appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail may 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 petitioner. However, in case, the petitioner does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this petition is finally disposed off.