Rajesh Dayal Khare, J. - (1.) LIST revised none appears to press this application on behalf of applicants. Heard learned A.G.A. for the State.
(2.) ANOTHER Bench of this Court vide order dated 07.02.1995 had issued notice and in the meantime stayed the execution of the Non -Bailable -Warrant issued by learned Chief Judicial Magistrate, District Firozabad in Criminal Case No. 632 of 1994 (State v. Tulsi Ram and Anr.), arising out of Case Crime No. 215 of 1993, under Sections 420, 467, 468, 471 I.P.C., Police Station South Firozabad, District Firozabad. It was further directed that the applicant No. 1 will appear before the learned Chief Judicial Magistrate, District Firozabad, through counsel and files her formal application under Section 195 Cr.P.C. and the learned C.J.M., was directed to consider and decide the same after hearing the parties within a period of four weeks. It was further directed that report of which should be transmitted to this Court. Office report dated 31.08.2010 shows that the order dated 07.02.1995 has not been communicated to the concerned Court below. The present 482 Cr.P.C. petition has been filed for quashing the charge sheet dated 07.07.1993 registered as Criminal Case No. 632 of 1994 (State v. Tulsi Ram and Anr.), arising out of Case Crime No. 215 of 1993, under Sections 420, 467, 468, 471 I.P.C., Police Station South Firozabad, District Firozabad.
(3.) IT has been averred in the present application under Section 482 Cr.P.C., that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. 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 (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para -10), 2005 SCC (Cr.) 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.;