Hon'ble Rajesh Dayal Khare, J. - (1.) HEARD Learned Counsel for the applicant and learned A.G.A. The present 482 Cr.P.C. petition has been filed for quashing the charge sheet dated 26.09.2011 arising out of Case Crime No. 1308 of 2011, under Section 3(2) (e) of Prevention of Damages to Public Property Act, 1984, Police Station Kavrai, District Mahobad and also to quash the cognizance taking order dated 11.10.2011 passed by learned Additional Chief Judicial Magistrate, District Mahoba.
(2.) IT is contended by Learned Counsel for the applicant that the Government order was issued on 14th September, 2011 pursuant to which no proceedings should have been drawn against the applicant inspite of he same chargesheet has been filed against the applicant which is bad in law. It is further contended that no offence against the applicant 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. Learned A.G.A. has contended that the said Government Order is not applicable in the case of the applicant as the incident, for which the applicant is being prosecuted is prior to issuance of the Government Order.
(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 applicant. 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 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 has got a 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 he is free to take all the submissions in the said discharge application before the Trial Court.;