Waliullah vs State of U.P. and Others

Rajesh Dayal Khare, J.—Heard Sri Azhar Ahmad, learned Counsel, holding brief of Sri J.J. Munir learned Counsel for the applicant and learned A.G.A.

Another Bench of this Court, vide its order dated 07.09.1998 had issued notice to the opposite party No. 2 and in the meantime, stayed the further proceedings of Criminal Case No. 334 of 1997 (State v. Waliullah), pending before learned IInd Additional Judicial Magistrate at Sambhal, District Moradabad.

As per office report, notice issued to the opposite party No. 4 has been served but till date no counter affidavit has been filed till date.

The present 482 Cr.P.C. petition has been filed for quashing the charge sheet dated 25.05.1996 registered as Case No. 334 of 1997 (State v. Waliullah), arising out of Case Crime No. 121 of 1995, u/s 498A, Police Station Naksha, District Moradabad, pending before learned IInd Additional Judicial Magistrate, Sambhal, District Moradabad.

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 u/s 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. The State of Punjab, State of Haryana v. Bhajan Lal 1992 SCC 426, State of Bihar v. P.P. Sharma 1992 SCC 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para-10) 2005 SCC 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got right of discharge u/s 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 charge sheet is refused. Interim order dated 07.09.1998 is hereby vacated.

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 shall be considered and decided 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 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 shall be taken against them.

With the aforesaid directions, this application is finally disposed off.

The registry of this Court is directed to communicate the order of this Court passed today, forthwith to the concerned Court below.