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2016 DIGILAW 3323 (ALL)

Vikramjit v. State of U. P.

2016-09-28

RAJESH DAYAL KHARE

body2016
JUDGMENT Rajesh Dayal Khare,J. Heard learned counsel for the petitioners and learned A.G.A. The present petition has been filed for quashing the summoning order dated 23.08.2016 passed by learned Additional Chief Judicial Magistrate, Ist, District Jaunpur in Complaint Case No. 1514 of 2015 (Ram Yagya Vs. Vikramjit and others) under Sections 419, 420 I.P.C., Police Station Shahganj, District Jaupur as well as to set aside the entire proceedings of the aforesaid case. Learned counsel for the petitioners has contended that as per decision of Hon'ble Apex Court in the matter of Devendra Kishal Lal Dagalia Vs. Dwarkesh Diamonds Private Limited and others reported in 2014 (2) SCC 246 , summoning order can be challenged in the 482 Cr.P.C. petition or under Article 227 of the Constitution of India. Learned counsel has further contended 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 under writ jurisdiction. 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. The prayer for quashing the summoning order as well as proceedings is 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, their 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. 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 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 off.