- (1.) HEARD Sri V.M. Zaidi, learned Senior Advocate assisted by Sri Sami Ullah Khan, learned counsel for the applicant, Sri Kaustubh Srivastava, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
(2.) THIS application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 18.5.2012 passed by Additional Chief Judicial Magistrate, Court No.1, Ghaziabad and the entire proceedings of Criminal Case No. 4215 of 2011 (State Vs. Indresh & others) under Sections 419, 420, 421, 468, 120B, I.P.C. pending in the Court of Additional Chief Judicial Magistrate, Court No.1, Ghaziabad. It is contended by learned counsel for the applicant that earlier also an application under Section 482, Cr.P.C. numbered as Criminal Misc. 482 Cr.P.C. Application No. 16324 of 2009 was filed by the applicant before this Court but the same was dismissed by this Court vide order dated 11.11.2009. Thereafter the applicant was advised to move a discharge application before the court below and the said discharge application was filed in August, 2009 and since then the said discharge application is pending before the trial court and the applicant submitted before the trial court that his discharge application may be decided through counsel but the trial court insisted that the applicant should first surrender before the court and get himself bailed out thereafter his discharge application would be decided. The said order has been passed by the trial court on 18.5.2012 for which quashing is being sought by the applicant by means of present application under Section 482 Cr.P.C. It is further contended that the applicant is the Deputy Manager working in the State Bank of India Kamla Nehru Nagar Branch at Ghaziabad and he has completed 30 years of service with excellant service record and there is no complaint against the applicant regarding the discharge of duty. It is further contended that the present complaint on the basis of an F.I.R. lodged by the opposite party no.2 against the applicant and other co-accused is bad in the eyes of law as no offence is made out against the applicant. On the other hand, Sri Kaustubh Srivastava, learned counsel for the opposite party no.2 has argued that after the dismissal of earlier 482 Cr.P.C. application by this Court on 11.11.2009, the applicant moved a discharge application in August, 2009 before the court below, the same is pending since long and the applicant without there being any order from this Court or any other court, has not surrendered before the court below in the present case nor has got himself bailed out. He further contended that a prima facie offence has been disclosed against the applicant as has been held by this Court in its earlier order dated 11.11.2009, hence the trial court has rightly directed the applicant to surrender before the court.
(3.) HAVING regard to the submissions advanced by learned counsel for the parties, I am of the opinion that there is no order passed by this Court or any other court by which the applicant was allowed to appear through counsel before the trial court and press for discharge application. Therefore, the trial court has rightly passed the order dated 18.5.2012 directing the applicant to appear and surrender before the court for which a detailed order was passed by the trial court on 19.9.2009 and since then the applicant has not appeared before the trial court. Moreover, after the dismissal of the earlier 482 Cr.P.C. application filed by the applicant before this Court which was dismissed by this Court on merit on 11.11.2009 the applicant did not surrender before the trial court which amounts to dilatory tactics on the part of the applicant to delay the proceedings of the trial which has been initiated against him and other accused person in the year 2008. No interference is called for by this Court in exercise of its inherent power under Section 482 Cr.P.C. for quashing of the impugned order dated 18.5.2012 or the entire proceedings of the aforesaid criminal case pending in the Court of Additional Chief Judicial Magistrate, Court No.1, Ghaziabad. However, it is directed that in case the applicant appears and surrender before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.;