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Jamshed vs State Of U.P. And Another on 23 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 69

Case :- APPLICATION U/S 482 No. – 38290 of 2019

Applicant :- Jamshed

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Atul Pandey,Shanti Dhar Dwivedi

Counsel for Opposite Party :- G.A.

Hon’ble Vivek Kumar Singh,J.

Heard Sri Shanti Dhar Dwivedi, learned counsel for the applicant, Sri Sanjay Singh, learned AGA – I, for the State.

This application has been filed under Sectionsection 482 Cr.PC with a prayer seeking quashing of the order dated 31.7.2019 passed by learned Addl. District Sessions Judge, Hapur in S.T. No. 1597/2015, in Case Crime No. 0854/2015, under Sectionsection 377 IPC and 3/4 of POCSO Act, Police Station- Hapurnagar, District- Hapur (SectionState v. Jamshed) and direct the court below to conduct the medical exaination/ossification test of the applicant for his age determination.

The contention of learned 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 purpose 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 applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Sectionsection 482 Cr.PC. At this stage only prime facie case is to be seen in the light of the law laid down by Supreme Court in cases of SectionR.P. Kapur v. State of Punjab, AIR 1960 SC 866, SectionState of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, SectionState of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly SectionZandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.

The prayer for quashing the order of the court below passed in the aforesaid case pending before the court concerned as well as direction to court below is refused.

However, it is directed, that in case applicant appears and surrender before the court below within 30 days from today and applies for bail the court below shall consider and decide the bail prayer of applicant in view of the settled law laid by this Court in the case of SectionSmt. Amarawati and another v. State of U.P., reported in 2004 (57)ALR 290, as well as judgement passed by Hon’ble Apex Court in the case of SectionLal Kamlendra Pratap Singh v. State of Uttar Pradesh and others, reported in (2009) 3 ADJ 322 (SC). 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 above directions, present application is disposed off.

Order Date :- 23.10.2019/ssm

 

 

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