Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicants and learned A.G.A.
(2.) THE present 482 Cr.P.C. petition has been filed for quashing the proceedings of the S.C.C. No. 47 of 2009, (State v. Sakir and Ors.), arising out of Case Crime No. 821 of 2008, under Section 2/3 Gangsters Act, Police Station Kasna, District Gautambudh Nagar, pending in the Court of Special Judge Gansger Act, District Gautambudh Nagar. It is contended by learned Counsel for the applicants that in one of the case, the applicants have been acquitted and in the second case the applicants have been enlarged on bail. It is further contended that the case in which the applicants have been acquitted has been shown in the Gangsters Act, which is bad in law. It is further contended that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
(3.) 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. All the submission made at the bar relates to the disputed question 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 v. State of Punjab : A.I.R. 1960 S.C. 866, State of Haryana v. Bhajan Lal, 1992 SCC 426, State of Bihar v. P.P. Sharma, 1992 SCC 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para -10), 2005 SCC 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got right of discharge under Section 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.;