Court No. - 78
Case :- APPLICATION U/S 482 No. - 16833 of 2020 Applicant :- Abunda Kennedy @ Kennedy Abunda Opposite Party :- State of U.P. and Another Counsel for Applicant :- Narendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Anil Kumar-IX,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed by applicant to quash the impugned order dated 12.11.2016 passed by Chief Judicial Magistrate, Agra along with entire proceedings of Case No. 132 of 1996 (State Vs. Kennedy Abunda) arising out of Case Crime No. 262 of 1995 under Section 14 of The Foreigners Act, 1946, Police Station- Rakabganj, District Agra.
The brief facts of the case as emerge from the record are that the applicant is a Kenyan national and holder of passport No. A- 202175 issued at Nairobi on 05.07.1991 which was valid till 04.07.1996 and subsequently the validity thereof was extended from time to time by the competent authority. The Visa no. S- 467/1991 dated 05.07.1991 issued at Nairobi in favour of the applicant for India whereby he was permitted to remain in India till 15.01.1992 to pursue his studies at Dr. Bhimrao Amdekar University, Agra and F.I.R. was lodged against the applicant on 17.07.1995 as Case Crime No. 262 of 1995, under Section 14 of the Foreigners Act, 1946, Police Station Rakabganj, District Agra. After investigation chargesheet was submitted on 12.01.1996. Cognizance was taken by the Court and on 23.09.2002 charge was framed and he was regularly attaining the Court till 05.08.2010. After that he was appearing through his counsel and on 16.09.2010 and afterwards till now he was absent from the proceedings and neither he was present nor his counsel appeared before the Court. On 16.09.2010 non-bailable warrant was issued against the applicant. After that he was absent on dated fixed and on 05.10.2010 non-bailable warrant and process under Section 82 Cr.P.C. has been issued. On 02.11.2016 he has been declared absconder. After recording the statement of P.W.-1 record was consigned and perpetual non- bailable warrant has been issued against him.
Learned counsel for the applicant submitted that applicant was pursuing his L.L.B. and L.L.M. course which was completed in the year 1997 and 1999, respectively. After that he started his P.hd. course in Law since 15.09.2009 and he could not attend the proceedings of the Court. It is submitted that after that further proceeding of the case was neither communicated to him by his counsel nor the same was in his knowledge and he could not appear before the Court from 05.08.2010 to till now.
Learned counsel for the applicant further submitted that applicant has been falsely implicated in the present case. At the time of lodging F.I.R. his application for extension of his Visa was pending before the authority concerned. He was permitted to live in India upto 27.02.2002 by Foreigner Registration Officer, Agra with condition not to leave without permission. He further submits that his case is pending since 1995. More than 25 years have passed but neither the trial of the case came to the conclusion nor the applicant was allowed to leave India to go back to his own country.
Learned A.G.A. opposed the prayer and submitted that there is no illegality in impugned order and at this stage it cannot be said no case is made out against the applicant.
I have considered rival submission and material on record.
Despite knowledge of the pending case, applicant did not appear before the Court concerned since 15.09.2009. On and after 16.09.2010 neither the applicant nor his counsel was present before the Court to take part in the proceeding of each and every date fixed. On 16.09.2010, non-bailable warrant has been issued. Even after that the applicant did not appear before the Court and he was busy in his study work. On 02.11.2016 he has been declared absconder by the Court. Due to continuous non-appearance of the accused for a very long period, Court below has declared him absconder. Learned counsel for the applicant could not point out any legality in the impugned order and declaring him absconder.
Second point raised is that applicant has been falsely implicated in this case and no case is made out against him. He has prayed to quash the entire proceeding of the impugned case. In this case charge sheet has been filed on 12.01.1996 and charge was framed on 23.09.2002. Applicant has approached the Court with prayer to quash the proceeding in 2020 i.e. after about 25 years and for a long period of six years he did not appear before the Court below. Thus, applicant has also contributed towards delay in disposal of the case.
More over, at this stage under Section 482 of Cr.P.C., it cannot be said that no offence is made out against the applicant. Disputed defense be raised and adjudicated upon by the trial Court on the basis of the evidence. At this stage, u/s 482 Cr.P.C. only prima facie, case is to be seen in the light of the judgement rendered by Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426.
Prayer to quash the impugned order dated 12.11.2016 and entire proceeding of the case is refused.
Accordingly, this application filed under Section 482 of Cr.P.C. is hereby rejected.
Order Date :- 25.1.2021 Sachin