Proceedings under Section 482 CrPC cannot be quashed based on disputed questions of fact, and the accused has the right to file a discharge application before the trial court.

Court No. - 65

Case :- APPLICATION U/S 482 No. - 33544 of 2022

Applicant :- Dharmendra

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Dharmendra Kumar Singh

Counsel for Opposite Party :- G.A.

Hon'ble Rajiv Gupta,J.

Heard learned counsel for the applicant, learned A.G.A.

for the State and perused the record.

This application under Section 482 Cr.P.C. has been filed

with the prayer to quash the charge-sheet dated

08.01.2022, cognizance order dated 21.05.2022 and

entire proceedings of Case No. 623 of 2022 (State Vs.

Dharmendra), arising out of Case Crime No. 318 of 2021,

under Section 174-A I.P.C., Police Station Kamalganj,

District Farrukhabad, pending before the court of

Additional Chief Judicial Magistrate, Farrukhabad.

As per the allegations made in the FIR, it is alleged that

the applicant was an accused in Case No. 1966 of 2010,

under Section 138 of N.I. Act, however, despite issuance

of proclamation under Section 82 CrPC, he had not

appeared before the court below, as such, FIR has been

registered against him under Section 174-A IPC.

Learned counsel for the applicant has submitted that the

applicant has already directed to be released on bail by

the court below.

Learned counsel for the applicant has next submitted that

from perusal of the allegations made in the FIR and the

material collected during the course of investigation, no

offence is disclosed against the applicant and the present

case has been instituted with a malafide intention for the

purpose of harassment, as such, entire proceedings be

quashed.

Per contra, learned AGA has submitted that from perusal

of the allegations made in the FIR and the material

collected during the course of investigation, prima facie

offence is clearly made out against the applicant and as

such, entire proceedings cannot be quashed.

From 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 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 the Hon'ble 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 had already been directed to be

released on bail and he has got right of discharge under

Sections 239, 245 or 227 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.

At this stage, this Court is not in a position to weigh the

factual matrix of the case properly and accused has a

right to file a discharge application before the trial court

and the trial court may decide his discharge application, if

there is no evidence against him

The prayer for quashing the entire proceedings is

therefore refused.

However, it is directed that in case the applicant files an

application for discharge before the court below, the same

be considered and disposed off in accordance with law

after hearing the public prosecutor.

With the aforesaid directions, this application under

Section 482 CrPC is finally disposed off.

Order Date :- 10.1.2023

Nadim

Digitally signed by :-

NADIM ALAM

High Court of Judicature at Allahabad