Court refused quashing order in S. 482 Cr.P.C. petition alleging malafide prosecution but directed 30-day moratorium on coercive action if applicant appeared or applied for bail recall.
Prayer for quashing refused; granted 30-day moratorium on coercive action conditionally upon filing bail application or appearing in court.
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Court No. - 69
Case :- APPLICATION U/S 482 No. - 32188 of 2019
Applicant :- Vivek Tomar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Sanjay Kumar Srivastava,Ishwar Chandra Tyagi,Nirvikar Gupta Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Counter affidavit filed on behalf on behalf of opposite party, is taken on record.
Heard learned counsel for the applicant, Sri S.P. Singh, learned counsel on behalf of opposite party and Sri Sanjay Singh, learned A.G.A.-I for the State.
The present 482 Cr.P.C. petition has been filed for quashing the nonbailable-warrant order dated 30/31.07.2019 passed by ACJM, Court No. 6 Ghaziabad in Complaint Case No. 2247 of 2019 (Pravesh Vs. Vivek) under section 379, 427 IPC, P.S. Kavi Nagar, Ghaziabad as well as impugned order dated 07.08.2019 passed by Sessions Judge, Ghaziabad in Crl. Revision No. 280 of 2019.
The contention of the counsel for the applicant is 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.
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.
The prayer for quashing the order impugned is refused.
However, it is provided that if the applicant files an application for
recalling of the non-bailable-warrant issued against him within 30 days from today, the said application may be considered and disposed as expeditiously as possible, in accordance with law or in case, 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 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 applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed off. Order Date :- 17.9.2019 Arti
1 issue framed by the court
Whether the 482 Cr.P.C. petition praying for quashing of non-bailable-warrant and revision order warrants quashing based on prima facie case.
Colour shows how this judgement treated each authority
R.P. Kapur Vs. State of PunjabReferred¶9
R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866 · Who else cites this
State of Haryana Vs. Bhajan LalReferred¶9
State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 · Who else cites this
State of Bihar Vs. P.P.SharmaReferred¶9
State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 · Who else cites this
Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful HaqReferred¶9
Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283 · Who else cites this
Amrawati and another Vs. State of U.P.Referred¶12
Amrawati and another Vs. State of U.P., 2004 (57) ALR 290
Lal Kamlendra Pratap Singh Vs. State of U.P.Referred¶12
Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (3) ADJ 322 (SC)
Vivek Tomar
Vivek Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
