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2017 DIGILAW 370 (ALL)

Ali Afazal v. State of U. P.

2017-01-30

RAJESH DAYAL KHARE

body2017
JUDGMENT Rajesh Dayal Khare,J. Heard learned counsel for the applicant, learned A.G.A., and Sri Tushar Oberoi learned counsel holding brief of Sri Irfan Chaudhary, learned counsel for the opposite party no.2. The present 482 Cr.P.C. petition has been filed for quashing the summoning order dated 29.02.2016 passed by learned Additional Chief Judicial Magistrate, IIIrd, District Saharanpur in Misc. Case No. 295 of 2016 (Smt. Rafina Vs. Mohammad Raza alias Raja and others) arising out of Case Crime No. 576 of 2012 under Sections 376 (2) G, 323, 506 I.P.C., as well as for setting aside the Judgement and order dated 17.10.2016 passed by learned Additional SessionsJudge, Court No.2, District Saharanpur in Criminal Revision No. 68 of 2016 (Mohammad Raza alias Raja Vs. State and another) connected with Criminal Revision No. 251 of 2016 (Ali Afzal Vs. State and another) filed by the applicant has been rejected. Learned counsel for the applicant contends that in the aforesaid case, final report has been filed five times in spite of the same, summoning order has been passed which is bad in law. It is further contended that no offence against the applicant 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. It is further contended that by considering extraneous material, learned Magistrate had considered the protest petition and has passed the summoning order, which is bad in law. Sri Tushar Oberoi learned counsel holding brief of Sri Irfan Chaudhary, learned counsel for the opposite party no.2 has drawn attention of this Court to the statement of the victim recorded under Section 164 Cr.P.C, copy of which is annexed as Annexure-7 to the affidavit accompanying the 482 Cr.P.C. application and has contended that prima facie offence is made out against the applicant, therefore the impugned summoning order has been rightly passed by the trial Court against which revision has been filed which too has been rejected rightly. Learned counsel has further stated that in the matter of co-accused Mohammad Raza @ Raja this Court had passed the order on 16.1.2017 in Application U/S 482 No. 39736 of 2016, photo copy of which order has been produced before this Court which is being taken on record. Learned counsel has further stated that in the matter of co-accused Mohammad Raza @ Raja this Court had passed the order on 16.1.2017 in Application U/S 482 No. 39736 of 2016, photo copy of which order has been produced before this Court which is being taken on record. 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 applicant. 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 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 applicant 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 and proceedings is refused. However, it is provided that if the applicant 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 expeditiously by the Court below. With the aforesaid directions, this application is finally disposed off.