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2016 DIGILAW 3633 (ALL)

Govind Ram v. State of U. P.

2016-11-05

OM PRAKASH VII

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JUDGMENT Om Prakash-VII,J. This Application u/s 482 Cr.P.C. has been filed by the applicants with a prayer to quash the non-bailable warrant dated 1.4.2015 issued against them by the Judicial Magistrate-II, Shahjahanpur in complaint case no. 655 of 2009 under sections 379, 427 IPC, P.S. Nigohi, District Shahjahanpur. Heard learned counsel for the applicants and the learned AGA appearing for the State. Earlier, applicants had approached this Court taking recourse of the provisions of section 482 Cr.P.C. by means of an application u/s 482 No. - 41674 of 2011 and this Court vide order dated 9.1.2012 passed the following order : "Heard learned counsel for the applicants and learned A.G.A. for the State-respondent. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of case no.655 of 2009, under Sections 379, 427 IPC, police station Nigohi, Shahjahanpur, pending before the Judicial Magistrate-II, Shahjahanpur. The contention of the 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 submission made at the bar relates to the disputed question 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 lawin case the proceedings of the aforesaid case is not stayed by any Court. 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 applicants have got right of discharge under Sections 239, 227/228 or 245(2) 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 proceedings, is hereby refused. Moreover, the applicants have got right of discharge under Sections 239, 227/228 or 245(2) 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 proceedings, is hereby refused. However, it is directed that the applicants shall appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail 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 applicants. However in case the applicants do not appear before the Court below within the aforesaid period, coercive action be taken against them, in case the proceedings of the aforesaid case is not stayed by any Court. With the aforesaid directions, this application is finally disposed of. Order Date : - 9.1.2012" This is the second application u/s 482 Cr.P.C. on behalf of the applicants almost for the same cause of action. Specific directions had been given to the applicants on 9.1.2012 to surrender before the court below within 30 days and apply for bail. When the applicants did not appear before the court concerned despite of specific directions, non-bailable warrants were issued against them. Issuance of non-bailable warrant is within the jurisdiction of the court concerned. Application having no force is accordingly dismissed.