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2016 DIGILAW 3301 (ALL)

Rajesh Tiwari v. State of U. P.

2016-09-27

RAJESH DAYAL KHARE

body2016
JUDGMENT Rajesh Dayal Khare,J. Heard learned counsel for the petitioners and the learned A.G.A. for the State. The present petition has been filed for setting aside the summoning order dated 18.1.2016 passed by Cheif Judicial Magistrate Hamirpur in complaint Case No. 2287 of 2015 under Sections 452, 323, 324, 504, 506 IPC, police station Sumerpur, district Hamirpur and also to set aside the revisional Court's order dated 23.5.2016 passed by Sessions Judge,Hamirpur in Criminal Revision No. 17 of 2016 whereby the revision filed by the petitioners against the aforesaid order has also been dismissed. The contention of the counsel for the petitioners is that no offence against the petitioners 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 petitioners. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Article 227 of the Constitution of India. The disputed defence of the accused cannot be considered at this stage. Moreover, the petitioners have 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 they are free to take all the submissions in the said discharge application before the Trial Court. After hearing the learned counsel for the petitioners, learned A.G.A. and after perusing the orders impugned as well as material on record, this Court is of the opinion that learned counsel for the petitioner could not point any good ground which may warrant interference by this Court in exercise of power conferred under Article 227 of the Constitution of India for setting aside the orders impugned. Accordingly, the prayer for setting aside the orders impugned is hereby refused. However, it is provided that if the petitioners appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the petitioners be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. However, it is provided that if the petitioners appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the petitioners 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 judgment 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 petitioners. However, in case, the petitioners do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. With the aforesaid directions, this petition is finally disposed of.