Court refused to quash criminal proceedings. Held that prima facie case exists and disputed facts cannot be considered. Granted conditional non-coercive period if applicant surrenders within 45 days and files bail application.
Prayer for quashing refused; liberty granted to surrender within 45 days for bail consideration without coercive action.
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Court No. - 83
Case :- APPLICATION U/S 482 No. - 1358 of 2020
Applicant :- Mohd. Faisal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rashi Misra,Ankit Prakash Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
Heard Sri Manas Bhargava, Advocate, holding brief of Sri Ankit Prakash, learned counsel for the applicant and learned A.G.A. for the State.
This application under Section 482, Cr.P.C. has been filed for quashing the charge sheet No. 1/2019 dated 2.4.2019 and the entire proceedings of Case No. 430 of 2019 (Case Crime No. 225 of 2015), under Sections 420, 406, 34 I.P.C., police station Kareli, district Allahabad, pending in the court of Judicial Magistrate-4, Allahabad.
The contention of the counsel for the applicant is that without service of bailable warrant, learned trial court issued nonbailable warrant against the appellant. Learned counsel further submits that appellant is only an employee in the company and no money was deposited by him. That no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.
Learned A.G.A. contended the prayer of the appellant by submitting that without service of bailable warrant, court can issue non-bailable warrant in non-bailable offences. Hence, the application of the applicant may not be allowed.
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 in exercise of power conferred 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 according
to the provisions prescribed in 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 proceedings is refused.
However, it is provided that if the applicant appears and surrenders before the court below within 45 days from today and applies for bail, then the bail application of the applicant be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme Court. For a period of 45 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 of.
Order Date :- 21.1.2020 Vibha Singh
3 issues framed by the court
Whether proceedings under Sections 420, 406, 34 I.P.C. can be quashed on grounds of no offence disclosed and malafide prosecution.
Whether a non-bailable warrant could be issued without prior service of a bailable warrant.
Whether disputed questions of fact can be adjudicated at the stage of Section 482 application.
1 provisions across 1 enactments
Mohd. Faisal
Suresh Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
