Court No. - 77
Case :- APPLICATION U/S 482 No. - 43302 of 2019 Applicant :- Devnath Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.M. Mishra,Anoop Trivedi (Senior Adv.) Counsel for Opposite Party :- G.A.,Sitaram Yadav
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant, learned counsel for O.P. No. 2 and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicant Devnath Yadav against State of U.P. and Ekadashi Yadav, with prayer to quash the order dated 23.6.2018 passed by Additional Sessions Judge, Court No. 5, Azamgarh, in Appeal No. 36 of 2018, Devnath Yadav Vs. State of U.P. and another, u/s 420, 467, 468, 471 I.P.C., P.S. Mubarakpur, District Azamgarh, whereby application 7 Kha has been decided with disposal of application regarding deposit of fine.
Learned counsel for the applicant argued that in that very appeal, bail to appellant was not granted by appellate court, then after it was moved before this court and a coordinate Bench of this court granted bail to appellant. But no order regarding fine was there. Accordingly, an application was moved before appellate court to pass order regarding deposit of fine. Before it, there was an application 7Kha for staying operation and effect of impugned order of conviction. The appellate court vide impugned order directed for making deposit of one-half of amount of fine and stayed remaining one- half of fine. But simultaneously disposed of application 7Kha, which was neither argued nor was there for disposal on that date. It was an abuse of process of law. Hence this application with above prayer.
Learned A.G.A. as well learned counsel for O.P. No. 2 have vehemently opposed the above argument with the contention that this proceeding is for delaying disposal of appeal, which is pending since more than one and half years and no argument over appeal was advanced by learned counsel for appellant. This court, while enlarging the appellant on bail, had not granted impugned relief of staying operation and effect of conviction order nor an order regarding deposit of fine was made. This was again requested before subordinate appellate court, where impugned order was passed and this appeal was fixed for hearing. But for a considerable delay of one and half years this application has been filed. It was with latches, which the applicant has to explain first. Accordingly, the lower appellate court be directed to expedite disposal of criminal appeal and this application be dismissed.
Having heard rival submissions made by learned counsel for the parties and gone through material placed on record, it is apparent that in Complaint Case no. 2356 of 2017, convict appellant Devnath Yadav was convicted for offences punishable u/s 420, 467, 468, 471 I.P.C. vide judgment dated 17.4.2018 and was sentenced with five years imprisonment and fine of Rs. 10000/- u/s 420 I.P.C., seven years imprisonment and fine of 10,000/- u/s 467 I.P.C., five years imprisonment and fine of Rs. 10,000/- u/s 468 I.P.C. and seven years imprisonment and fine of 10,000/- u/s 471 I.P.C. and in case of default in payment of fine one years additional imprisonment. There was direction for concurrent running of sentences. Against this order of C.J.M., Azamgarh, Criminal Appeal No. 36 of 2018 was filed before court of Sessions Judge, Azamgarh, wherein order dated 20.4.2018 was passed whereby appeal was admitted for hearing and lower court's record was summoned. Application 6 Kha for bail and application 7 Kha for staying operation of conviction were moved, but no order over these applications were passed. Subsequently it was argued and bail application was rejected by subordinate appellate court against which a proceeding was brought before this court, wherein bail order was passed by a coordinate Bench of this court on 18.6.2018 in Criminal Misc. Application u/s 389(2) Cr.P.C., Devnath Yadav Vs. State of U.P. and another, wherein bail was granted. But neither order regarding fine nor staying operation of conviction was made. Subsequently, an application was moved before appellate court for passing order over these prayed matters, wherein impugned order was passed in which direction for deposit of one-half of fine was made and for staying remaining one-half of fine and this application 7Kha was also held to be disposed of.
Section 389 Cr.P.C. provides for suspension of sentence pending the appeal; release of appellant on bail. Sub-section (1) of section 389 Cr.P.C. provides pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on own bond of convict person. Provided that Appellate Court shall before releasing on bail or on his own bond a convicted person, who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than then years, shall give opportunity to the Public Prosecutor for showing cause in writing against such released. Provided further that in case where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. Sub-section (2) of section 389 Cr.P.C. provides the power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
Meaning thereby an application moved for staying operation and effect of conviction and for releasing on bail is to be moved u/s 389(1) Cr.P.C. and it is to be decided by that court i.e. no separate application for both of relief prayed is there and appellate court is with discretion to stay operation of the conviction order and release on bail, if convict is under confinement by reason in writing, i.e. it is mandatory to release convict on bail and stay conviction by a written reasoned order. But it is not mandatory that in each and every case this stay order and release on bail be granted. Rather it is under judicial discretion of appellate court. Section 389(2) Cr.P.C. enables High Court for exercising this power as is granted subordinate court of Sessions Judge. Once this application was moved before subordinate appellate court and it was not conceded then application u/s 389(2) was moved before this court, where two reliefs were not granted. Hence there remained nothing for adjudication by subordinate court regarding section 389(1) or 389(2) Cr.P.C. But an application was moved and appellate court, though previously decided, but exercised its jurisdiction u/s 389(1) Cr.P.C. and passed order for release on bail subject to deposit of one-half of fine as bail was previously granted by the High Court. Hence, deposit of one-half of fine was directed but order for staying of conviction was not granted. Accordingly, nothing remained for adjudication before the court and both the applications stood disposed of. Accordingly, there was no misuse or abuse of process of law in the order. Hence this application merits its dismissal.
Accordingly, the application is dismissed.
Order Date :- 18.12.2019 Pcl