Dhanush Dhari Singh vs State of U.P. and Others

Naheed Ara Moonis, J.—Heard the Learned Counsel for the applicant, Sri Himanshu Upadhyay, Learned Counsel appearing on behalf of the complainant, leaned A.G.A. and perused the record.

This petition has been filed for quashing the charge sheet No. 91-A/2010 dated 11.12.2010 in case Crime No. 156-A/10 pending in the court of Civil Judge (Junior Division)/ Judicial Magistrate-I, Ballia whereby cognizance has been taken by the court below against the applicant.

It is contended by the Learned Counsel for the applicant that there is a cross case in which the applicant had also lodged a first information report against the complainant.

It is contended by the Learned Counsel for the applicant that the opposite party No. 4 had lodged a first information report in respect of the alleged incident dated 29.4.2010 on 2.5.2010 that scuffle took place while playing cricket and the applicant had assaulted him and had fired but the fire was missed. It is contended by the Learned Counsel for the applicant that the applicant had also lodged a first information report against the complainant and the charge sheet has also been submitted against him and cognizance taken by the court below hence the present proceeding is nothing but an abuse of the process of the court. The alleged affidavit given by the opposite party No. 4 where he has denied the incident as alleged in the first information report cannot be considered at this stage. From the perusal of the first information report prima facie offence is made out against the applicant and the prayer for quashing the proceeding is refused. The charge sheet has submitted long back and the court below has taken cognizance and criminal prosecution at its very inception cannot be quashed.

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 submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court u/s 482 Code of Criminal Procedure 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. The State of Punjab, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para-10) 2005 SCC (Cr.) 283.

Therefore, there is No. merit in this petition filed u/s 482 Code of Criminal Procedure the petition is accordingly dismissed.

However, it is directed that the applicant shall appear and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided, if possible on the same day keeping in view of the settled law laid by this Court in the case of Amrawati and Anr. v. 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 v. State of U.P. For a period of 30 days from today No. coercive action shall be taken against the applicant. However in case the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.