Court No. - 44
Case :- APPLICATION U/S 482 No. - 32776 of 2016 Applicant :- Durgesh Yadav Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sitaram Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
In Re: Criminal Misc. (Stay Extension) Application No. 1 of 2018.
Heard Mr. Sunil Kumar, Advocate holding brief of Mr. S.R. Yadav, learned counsel for the applicant and the learned A.G.A. for the State.
This application under section 482 Cr. P. C. has been filed for the following relief:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the instant application of the applicant and be pleased to quash the entire proceeding of the Special Case No. 39 of 2016 (State Vs. Durgesh Yadav) in Case Crime No. 17 of 2016, under Sections 363, 366, 376 IPC & 3/4 POCSO Act, P.S. Tahabarpur, District Azamgarh, presently pending in the Court of learned Additional Sessions Judge, Court No. 1, Azamgarh as well as impugned charge sheet dated 22.04.2016, the cognizance taken on 30.04.2016 as well as order dated 17.08.2016 of discharge passed by learned Additional Sessions Judge Court No. 1, Azamgarh and other process issued against him.
It is further prayed that this Hon'ble Court may be pleased to stay the entire proceeding of the Special Case No. 39 of 2016 (State Vs. Durgesh Yadav) in Case Crime No. 17 of 2016, under Sections 363, 366, 376 IPC & 3/4 POCSO Act, P.S. Tahbarpur, District Azamgarh, presently pending in the Court of learned Additional Sessions Judge Court No. 1, Azamgarh as well as impugned Charge Sheet dated 22.04.2016, the cognizance taken on 30.04.2016 as well as order dated 17.08.2016 of discharge passed by learned Additional Sessions Judge Court No. 1, Azamgarh and other process issued against him as well as pleaded to stay the operation and execution of processes issued against him. Otherwise it can cause irreparable loss and injury to him.
And/Or- to pass such other and further orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."
The present application came up for admission on 28.11.2016 and this Court passed the following interim order:-
"Sri Sitaram Yadav, learned counsel for the applicant and learned A.G.A. for the State are present. None respond for the opposite party no.2.
The applicant has moved this application under Section 482 Cr.P.C. for quashing the entire proceeding of Special Case No. 39 of 2016 (State Vs. Durgesh Yadav) in Case Crime No.17 of 2016, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Tahabarpur, District Azamgarh.
Learned counsel for the applicant contended that there is no iota of evidence on record to constitute any offence against the applicant.
Matter requires consideration.
Learned A.G.A. for the State prays for and is granted one week time to file counter affidavit. Rejoinder affidavit may be filed within one week thereafter.
List on 14.12.2016 before the appropriate Bench.
Till the next date of listing, further proceedings of Special Case No. 39 of 2016 (State Vs. Durgesh Yadav) in Case Crime No.17 of 2016, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Tahabarpur, District Azamgarh, pending in the Court of Addl. Sessions Judge, Court No.1, Azamgarh shall remain stayed."
In compliance of the order dated 28.11.2016 passed by this Court, learned A.G.A. has filed a counter affidavit dated 31.01.2017. However, no rejoinder affidavit has been filed to the same.
At this stage, Mr. Sunil Kumar, learned counsel appearing for the applicant submits that no counter affidavit has been filed by the private respondent till date. The order sheet does not show the service of notice upon the opposite party No. 2. Consequently, Office is directed to submit a report with regard to service of notice upon opposite party No. 2.
Attention of the Court was invited to the order passed by the Apex Court in the case of Asian Resurfacing of Road Agency and another etc. etc. Versus Central Bureau of Investigation etc., wherein the following has been observed in paragraph No. 36:-
"Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Section 397 or 482 Cr. P. C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered.Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally.If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced"
It is submitted that on the basis of the aforesaid judgement of the Apex Court, the Court below is now proceeding with the assumption that by a legal fiction, the interim order granted by this Court has expired. It is in the light of the aforesaid fact that Criminal Misc. Stay Extension Application No. 1 of 2018 has been filed seeking extension of the stay order dated 28.11.2016. The Court finds that the interim order dated 28.11.2016 passed by this Court was lastly extended on 04.04.2017. Therefore, the view taken by the Court below that the interim order stood expired cannot be said to be illegal. At this stage Reference may be made to the judgement of the Apex Court in the case of Ashok Kumar and others Vs. State of Haryana and another, reported in 2007 (3) SCC, 470, wherein the Apex Court has observed as follows:-
"The short question which arises for consideration in this appeal is as to whether the order of ad interim injunction granted by the learned Civil Judge, Senior Division, Panipat, was operative till 09.09.1998 or 19.08.2000. We have noticed hereinbefore the nature of the orders passed by the learned Civil Judge. Although in its order dated 30.08.1997, the learned Civil Judge, used the term "In the meantime", which was repeated in its order dated 24.09.1997, but in the subsequent orders beginning from 29.11.1997, the expression used was "till then".
The term of the order of the learned Judge, in our opinion, does not leave any manner of doubt whatsoever that the interim order was only extended from time to time. The interim order having been extended till a particular date, the contention raised by the respondents herein that they were under a bona fide belief that the injunction order would continue till it was vacated cannot be accepted.
In our considered opinion, the purport of the order passed by the learned Civil Judge, Senior Division, Panipat, in extending the order of injunction is absolutely clear and explicit. It may be true that the date was preponed to 28.07.1998, but from a bare perusal of the order passed by the learned Civil Judge, Senior Division, it is evident that the order of injunction was not extended. Even on the subsequent dates, the order of injunction was not extended. In fact, no order extending the period was passed nor any fresh order of injunction was passed by the learned Civil Judge, Senior Division, subsequent thereto."
There is nothing to suggest that the present application was not listed even after the order dated 04.04.2017. However, as no counter affidavit has been filed by the opposite party No. 2, the interim order granted earlier is extended till 30.11.2018.
List with the office report after two weeks.
With the aforesaid directions, the aforesaid Criminal Misc. (Stay Extension) Application No. 1 of 2018 dated 22.7.2018 stands finally disposed of.
Order Date :- 24.8.2018 HSM