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Nishok And Another vs State Of Up And Another on 1 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 72

Case :- APPLICATION U/S 482 No. – 29694 of 2019

Applicant :- Nishok And Another

Opposite Party :- State Of Up And Another

Counsel for Applicant :- Ram Babu Sharma,Ardhendu Shekhar Sharma

Counsel for Opposite Party :- G.A.

Hon’ble Rajiv Joshi,J.

1. Heard learned counsel for the applicants and learned A.G.A. for the State.

2. The present 482 SectionCr.P.C. application has been filed to quash the impugned order dated 23.02.2019 passed by the Additional Sessions Judge/Special Judge (POSCO Act) Budaun as well as entire proceedings relating to SST No. 420 of 2019 (Mahendra Pal Vs. Nishor another) arising out of Complaint Case No. 20 of 2016, under Section 354 IPC and Section 9/Section10 Prevention of Children from Sexual Offence (POSCO) Act, 2012, Police Station Zarifnagar, District Budaun, pending in the Court of Additional District Judge 8th, Budaun.

3. The contention of learned 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 purpose of causing harassment. He pointed out certain documents and statements in support of his contention. At this stage, the argument raised by learned counsel for the applicants involves factual disputes and appraisal of evidence.

4. 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 at this stage. All the submissions made at the bar, relate to the disputed questions 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.

5. The prayer for quashing the entire proceeding of the aforesaid case is refused.

6. However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicants 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 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.

7. For a period of 30 days, no coercive measure shall be taken against the applicants in the aforesaid case.

8. With the aforesaid directions, this application is finally disposed of.

Order Date :- 1.8.2019

Shivangi

 

 

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