Court No. - 17
Case :- MATTERS UNDER ARTICLE 227 No. - 995 of 2018 Petitioner :- Amarpal And Anr.
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Arvind Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
This writ petition has been preferred for setting aside the judgment and orders dated 10.12.2012 and 03.08.2012 passed by learned Judicial Magistrate, Court NO.2, Etawah in Criminal Misc. Case NO.4 of 2011 arising out of case crime no. 12 of 2004 (State vs. Amarpal and others) under sections 498A, 323, 504, 506 IPC and section 3/4 D.P. Act, P.S. Vedpura, District Etawah and the judgment and order dated 2.11.2017 passed by learned Additional Session Judge, Court No.7, Etawah in Criminal Revisiion No.97 of 2015 arising out of case crime no. 12 of 2004 under sections 498-A, 323/34, 506(2) IPC and 4 Dowry prohibition Act, P.S. Vedpura, District Etawah and further for a direction to the lower appellate court to decide the appeal filed by the petitioners against the judgment and order dated 26.6.2008 pending before it expeditiously.
The facts of the case, in brief, are that the petitioners along with two others namely Smt. Sushila and Smt. Jai Devi had been convicted vide judgment and order dated 26.6.2008 in Criminal Case No.3512 of 2007 (State vs. Amarpal and 3 others) in case crime no. 12 of 2004 under sections 498A, 323, 504, 506 IPC and section 3/4 D.P. Act, P.S. Vedpura, District Etawah whereby the petitioners Amarpal and Brijesh Kumar and two others namely Smt. Sushila and Smt. Jai Devi were held guilty and were awarded punishment under section 3/4 D.P. Act with two years R.I. each, fine of Rs.5000/-each and in default of payment of fine, six months additional R.I.; under section 498A IPC three years R.I. each, fine of Rs.5000/- each and in default of payment of fine, six months additional R.I. each; under section 323/34 IPC with six months R.I. each, fine of Rs.500/- each, in default of payment of fine, one month additional R.I.each; under section 506(2) IPC with two years R.I. each, fine of Rs.1000/- each and in default of payment of fine, six months additional R.I. and it was further directed that all the sentences shall run concurrently. The above punishment was awarded in the absence of accused Smt. Sushila and Smt Jai Devi because they were absent at the time of delivery of judgment.
All the four accused had preferred an appeal no. 56 of 2008 (Amarpal and three others vs. State of U.P.) in which Additional District Judge, Court No. 8 Etawah allowed the appeal partly and remanded the matter back to the court below with a direction that it shall hear the accused Smt. Sushila and Smt. Jai Devi on the point of sentence. With the aforesaid direction, the file was remanded to the court below with the direction to the parties to appear before it on 24.6.2009.
In pursuance of this order, only two persons namely Smt. Sushila and Smt. Jai Devi appeared before the court below and not the present petitioners. Learned court below after hearing both the accused Smt. Sushila and Smt. Jai Devi on the point of sentence had awarded punishment vide judgment and order dated 5.11.2009 to Smt. Sushila and Smt. Jai Devi under section 4 of D.P. Act with two years R.I. each, fine of Rs.5000/- each and in default of payment of fine, six months additional R.I. each; under section 498A IPC with three years R.I., fine of Rs.5000/- and in default of payment of fine, six months additional R.I. each; under section 323/34 IPC with six months R.I. each, fine of Rs.500/- each and in default of payment of fine, one month additional R.I. each; under section 506(2) IPC with two years R.I.each, fine of Rs.1000/- each and in default of payment of fine, six months additional R.I.each and it was directed that all the sentences shall run concurrently.
Against the above judgment dated 5.11.2009 the accused Smt. Sushila and Smt. Jai Devi filed criminal appeal no. 123 of 2009 (Smt. Sushila and another vs. State of U.P ) which was rejected vide judgment and order dated 1.10.2012 by the Additional District Judge, Court No.4 and the order of conviction passed by the learned court below was upheld.
Against the aforesaid judgment dated 1.10.2012 of the lower appellate court, both the accused namely Smt. Sushila Devi and Smt. Jai Devi preferred Criminal Revision no 3411 of 2012 (Smt. Sushila Devi and another vs. State of U.P. ) before this Court in which both the accused-revisionists have been granted bail during the pendency of the revision vide order dated 15.10.2012.
The complainant of this case Mamta thereafter moved an application dated 23.9.2011 before the court of Additional Judicial Magistrate-II, Etawah with a prayer that arrest warrant should be issued against the present petitioners as they had been convicted in Criminal Case No.3512 of 2007 (State vs. Amarpal and others) under sections 498A, 323, 504, 506 IPC and section 3/4 D.P. Act, P.S. Vedpura, District Etawah vide judgment and order dated 26.6.2008. The court below after hearing the complainant of this case as well as the petitioners-accused, vide judgment and order dated 10.12.2012 allowed that application and issued non-bailable warrants against both the petitioners for execution of the order passed in Criminal Case No.3512 of 2007 (State vs. Amarpal and others) under sections 498A, 323, 504, 506 IPC and section 3/4 D.P. Act, P.S. Vedpura, District Etawah and fixed the next date as 21.12.2012.
Thereafter, the petitioners moved an application dated 16.7.2015 with a prayer that the order dated 10.12.2012 passed by Judicial Magistrate, Court No.2, Etawah may be reviewed, which was rejected vide order dated 3.8.2015 in which it was observed that both the petitioners had appeared personally before the court on the date when the impugned order dated 10.12.2012 was passed after giving them opportunity of hearing. On the same day, the petitioners moved another application that they should be permitted one month's time to file appeal or revision against the order dated 3.8.2015 before the court of Session. The said prayer was rejected vide order dated 3.8.2015 by the court below holding that the accused were continuously running absent.
The petitioners thereafter preferred revision against the order dated 3.8.2015 passed by the Judicial Magistrate, Court No.2, Etawah which was registered as Criminal Revision No.97 of 2015 (Amarpal and another vs. State of U.P. and another) and the same has been rejected vide order dated 2.11.2017 observing that there was no provision for review, hence the application for review was not required to be entertained and the order dated 10.12.2012 of the court below has been upheld whereby the non-bailable warrant was issued against the petitioners.
Learned counsel for the petitioners has contended that he had filed appeal along with two co-accused which was registered as Criminal Appeal No.56 of 2008 (Amarpal and others vs. State of U.P. ) which was partly allowed and the same was remanded to the court below with a direction to hear the accused Smt. Sushila and Smt. Jai Devi on the point of sentence. It was interpreted by the petitioners that the said order was confined to the hearing to be made by the court below with regard to only Smt. Sushila and Smt. Jai Devi and they were not directed to appear before the court below, hence they did not appear before the court below. The trial court after hearing the accused Smt. Sushila and Smt. Jai Devi passed the conviction order awarding them punishment and thereafter the file was required to be returned by the court below to the appellate court but it did not happen. They were granted bail by the appellate court during the pendency of the appeal.
On the other hand, learned A.G.A. has pointed out that there is no doubt the court below should have returned the file to the appellate court after hearing the accused Smt. Sushila and Smt. Jai Devi and awarding them punishment, back to the appellate court but the same was not done which was a mistake on the part of the court below but in this case the present petitioners ought to have appeared before the court below in pursuance of the direction of the lower appellate court dated 4.6.2009 and due to their non-appearance before the court below, this error appears to have occurred. It is also on record that against the conviction order dated 5.11.2009 separate appeal has been filed by two co-accused which had been registered as Appeal No.123 of 2009 in which the lower court's order has been upheld and the sentence stood maintained against them. Had the court below after passing the conviction order against Smt. Sushila and Smt. Jai Devi returned the file to the lower appellate court, there would be no need to file separate appeal by Smt. Sushila and Smt. Jai Devi but in this case both these accused have filed separate appeal which has been rejected. Therefore, similarly the present petitioners could now have also filed a separate appeal against the conviction order dated 26.6.2008 which has not been done by them. Therefore, at this stage, no benefit can be given to the accused petitioners for their own faults by restraining their arrest. Their conduct has also been dilatory.
Heard learned counsel for the parties and after having gone through the record, this Court is of the view that the petitioners had full knowledge on 10.12.2012 that NBW had been issued against them for execution of the judgment and order dated 26.6.2008 passed in Criminal Appeal No.3512 of 2007 (State vs. Amarpal and others) under sections 498A, 323, 504, 506 IPC and section 3/4 D.P. Act, P.S. Vedpura, District Etawah despite that they had preferred review application which was dismissed vide order dated 3.8.2015 by the court below and the revision preferred against it has also been dismissed. This Court does not see any reason as to why the petitioners could not file appeal like the one which was filed by co-accused Smt. Sushila and Smt. Jai Devi against the conviction order dated 26.6.2008.
From the above details it transpires that there is a mistake on the part of the trial court as well in not returning the file to the lower appellate court after it passed the conviction order against the co-accused Smt. Sushila and Smt. Jai Devi. Had the trial court returned the file to the lower appellate court, this situation would not have occurred which is causing prejudice to the petitioners. In view of the aforesaid fact there is no option but to give liberty to the petitioners to prefer an appeal against the conviction order dated 26.6.2008 and if such appeal is preferred, the same would be taken into consideration by the court concerned which shall be decided according to law by the court concerned.
In view of the aforesaid, the writ petition is dismissed with the aforesaid liberty of filing appeal.
Order Date :- 28.2.2018 AU