Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicants and learned A.G.A.
(2.) THE present Code of Criminal Procedure petition has been filed for quashing proceedings of Complaint Case No. 1312 of 2006 (Umesh Chandra v. Satyawati and Ors.) pending before learned Additional Chief Judicial Magistrate, Room No. 1, District Bareilly, under Sections , , , , , I.P.C., Police Station Baradari, District Bareilly and also for quashing of the summoning order dated 10.01.2007 issued in the aforesaid case. It is contended by learned Counsel for the applicants that the applicants moved an application for withdrawal of the summoning order which was dismissed on 15.07.2010, copy of which, is annexed as Annexure -8 to the affidavit accompanying the application, therefore it is contended that there is no latches on the part of the applicants in filing the present application. It is further contended that dispute with regard to construction of the wall and when the opposite party No. 2 interfered then the applicant No. 1 lodged the F.I.R., in Case Crime No. 1147 of 2006, under Sections , , , , , I.P.C., and it is thus contended that as a counter blast to the same, the present criminal proceedings has been initiated by the opposite party No. 2, 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 Code of Criminal Procedure 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 (Cri.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para -10), 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got right of discharge under Section or / or Code of Criminal Procedure 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. The prayer for quashing the proceedings is refused.;