State of U.P v. Nafees) under Sections

under Sections 34/420, 342, 506, 406, 1208, 376 LP.C., arising out of Case Crime No.381/2014, Police Station Shahbad, District - Rampur pending in the Court of learned Additional Chief Judicial Magistrate-I, Rampur during the pendency of the present Criminal Misc. Application (under Section 482 Cr.P.C.J before this Hon'ble Court and/or may pass such other and further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, otherwise the applicant will suffer an irreparable loss and injury."

4. At the very outset, the learned has raised a preliminary objection by submitting that applicant had earlier approached this Court by means of an application under Section 482 No. 38790 of 2016 (Nafis Vs. State of U.P. and another). The said application was disposed of finally vide order dated 16.12.2016. However, copy of the order dated 16.12.2016 has not been brought on record nor any averment has been made in the affidavit filed in support of present application regarding aforementioned application filed by applicant himself. As such, the present application is not maintainable.

5. In view of above, the hearing of present application is therefore deferred temporarily directing Bench Secretary to obtain a copy of the order dated 16.12.2016. The Bench Secretary has accordingly produced the copy of the order dated 16.12.2016 passed by this Court in aforementioned application. For ready reference, the order dated 16.12.2016 is reproduced herein under: "Heard learned counsel for the applicant and learned A.G.A. for the State respondent. The present application has been filed for quashing the charge sheet dated

19.4.2015 submitted in case crime no. 381 of 2014 (case no. 3207 of 2016) under Section 34/420, 342, 506, 406, 120-B, 376 IPC, P.S. Shahbad District Rampur pending before ACJM, court no.2, Rampur. 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 malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions. 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 questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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, 245(2) or 227/228, 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 charge sheet is refused. However, it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then his prayer for bail may be considered in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amaravati and another Vs. State of U.P., reported in 2004(57) ALR-290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh v. State of U.P., reported in 2009 (4) SCC 437, after hearing the Public Prosecutor. 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 disposed off. Order Date :- 16.12.2016 "

6. It is thus apparent that the present application under Section 482 Cr.P.C. is the second application filed by applicant. There is nothing on record to show that since new circumstances have emerged therefore this application is maintainable. Reference in this regard be made to the judgement of Supreme Court in Superintendent and Remembrancer of legal affairs West Bengal Vs. Mohan Singh and others, 1975 (3) SCC 706.

7. When confronted with above, the learned counsel for applicant could not overcome the same.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. regarding maintainability of present application under Section 482 Cr.P.C. are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant.

9. In view of above, present application fails and is liable to be dismissed.

10. It is accordingly dismissed with cost of Rs.25,000/- (Twenty five thousand), which shall be deposited by applicant before court below within a period of one month from today. In case, the cost awarded by this Court is not deposited by applicant with court below within above mentioned period then applicant shall be taken into custody. In case applicant has been enlarged on bail, the bail granted to applicant shall stand cancelled and he shall not be released on bail till the cost is deposed or the trial of applicant gets concluded, whichever is earlier.

11. A copy of this order shall be transmitted by the Registry to court concerned for necessary action. Order Date :- 8.1.2025 YK

under Sections 34/420, 342, 506, 406, 1208, 376 LP.C., arising out of Case Crime No.381/2014, Police Station Shahbad, District - Rampur pending in the Court of learned Additional Chief Judicial Magistrate-I, Rampur during the pendency of the present Criminal Misc. Application (under Section 482 Cr.P.C.J before this Hon'ble Court and/or may pass such other and further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, otherwise the applicant will suffer an irreparable loss and injury."

4. At the very outset, the learned has raised a preliminary objection by submitting that applicant had earlier approached this Court by means of an application under Section 482 No. 38790 of 2016 (Nafis Vs. State of U.P. and another). The said application was disposed of finally vide order dated 16.12.2016. However, copy of the order dated 16.12.2016 has not been brought on record nor any averment has been made in the affidavit filed in support of present application regarding aforementioned application filed by applicant himself. As such, the present application is not maintainable.

5. In view of above, the hearing of present application is therefore deferred temporarily directing Bench Secretary to obtain a copy of the order dated 16.12.2016. The Bench Secretary has accordingly produced the copy of the order dated 16.12.2016 passed by this Court in aforementioned application. For ready reference, the order dated 16.12.2016 is reproduced herein under: "Heard learned counsel for the applicant and learned A.G.A. for the State respondent. The present application has been filed for quashing the charge sheet dated

19.4.2015 submitted in case crime no. 381 of 2014 (case no. 3207 of 2016) under Section 34/420, 342, 506, 406, 120-B, 376 IPC, P.S. Shahbad District Rampur pending before ACJM, court no.2, Rampur. 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 malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contentions. 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 questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 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, 245(2) or 227/228, 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 charge sheet is refused. However, it is provided that if the applicant appears and surrenders before the court below within a period of 30 days from today and applies for bail, then his prayer for bail may be considered in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amaravati and another Vs. State of U.P., reported in 2004(57) ALR-290 and in the recent decision of the Supreme Court in the case of Lal Kamlendra Pratap Singh v. State of U.P., reported in 2009 (4) SCC 437, after hearing the Public Prosecutor. 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 disposed off. Order Date :- 16.12.2016 "

6. It is thus apparent that the present application under Section 482 Cr.P.C. is the second application filed by applicant. There is nothing on record to show that since new circumstances have emerged therefore this application is maintainable. Reference in this regard be made to the judgement of Supreme Court in Superintendent and Remembrancer of legal affairs West Bengal Vs. Mohan Singh and others, 1975 (3) SCC 706.

7. When confronted with above, the learned counsel for applicant could not overcome the same.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. regarding maintainability of present application under Section 482 Cr.P.C. are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant.

9. In view of above, present application fails and is liable to be dismissed.

10. It is accordingly dismissed with cost of Rs.25,000/- (Twenty five thousand), which shall be deposited by applicant before court below within a period of one month from today. In case, the cost awarded by this Court is not deposited by applicant with court below within above mentioned period then applicant shall be taken into custody. In case applicant has been enlarged on bail, the bail granted to applicant shall stand cancelled and he shall not be released on bail till the cost is deposed or the trial of applicant gets concluded, whichever is earlier.

11. A copy of this order shall be transmitted by the Registry to court concerned for necessary action. Order Date :- 8.1.2025 YK