Court No. - 49
Case :- APPLICATION U/S 482 No. - 18811 of 2018 Applicant :- Banshi Lal Patel Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anubhav Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 27.09.2012 as well as the entire proceedings of Case No. 2508 of 2012 (State Vs. Bansi Lal), arising out of Case Crime No. 546 of 2011, under Sections- 419, 420, 467, 468, 471, 120-B I.P.C., Police Station- Soraon, District- Allahabad, pending in the court of A.C.J.M.-VII, Allahabad.
Learned counsel for the applicant submits that in pursuance of the FIR dated 27.10.2011, charge sheet had been submitted by the police on 27.09.2012 and cognizance had also been taken. It also appears from order sheet that summons had been issued to the present applicant.
While the proceedings thus remained pending, it appears that some further investigation was carried out. Consequently, a final report was submitted by the police. At that stage, it appears under some mistake, the learned Magistrate invited objections of the informant on the protest petition though he had already taken cognizance on the charge sheet submitted earlier.
However, in view of the fact that the objections had been invited to the final report, learned counsel for the applicant states that in absence of such objections being filed, the learned Magistrate had erred in passing the order dated 07.02.2018, whereby NBW have been issued against the applicant.
Learned counsel for the applicant submits that the learned Court below has erred in issuing NBW though the informant has not appeared in the proceedings. Also, he has further erred in issuing NBW directly, without first issuing bailable warrant.
Insofar as first objection is concerned, it does not appeal to reason that because the opposite party no. 2 is not appearing on the protest application the final report should have been accepted. The protest application itself appears to be misconceived inasmuch as it is admitted case between the parties that an earlier charge sheet submitted in the present case, cognizance had already been taken and summons had also been issued to the applicant. There remained no occasion to entertain, hear or decide the protest petition.
That stage having been crossed, it is difficult to accept that the learned Magistrate could have entertained the protest application in a meaningful manner or he could not rejected the protest petition and accepted the final report submitted on further investigation.
Though the applicant may, at appropriate stage, be entitled to rely on the material that may have been submitted with the supplementary report described as the final report for the purpose of claiming discharge, cognizance having already been taken, it could not be said that the supplementary report submitted by the police ought to have been accepted such as may result in review of the earlier order passed by the learned Magistrate taking cognizance.
Thus, the first objection raised by the learned counsel for the applicant is rejected.
Insofar the second objection has been raised by learned counsel for the applicant that the NBW were issued directly does appear to be hurriedly passed.
Consequently, the order dated 07.02.2018 passed by the learned Magistrate is set aside. It is left open to the applicant to appear before the learned Court below and seek regular protection in accordance with law within a period of three weeks from today.
However, looking at the nature of offence alleged and attending facts and circumstances of the case, as have been brought on record, it is directed that if the applicant appears and surrenders before the court below within 45 days and no more from today and apply 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 Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 45 days and no more, from today, the non- bailable warrant issued against the applicant shall be kept in abeyance.
The present application is disposed of with the aforesaid observation.
Order Date :- 30.5.2018/A. Singh