Court No. - 49
Case :- APPLICATION U/S 482 No. - 13300 of 2018 Applicant :- Jamanat Hussain Naqvi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sharique Ahmed 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 application has been filed against the order dated 22.3.2018 passed by the learned Sessions Judge, Kanpur Nagar, by which the learned Session Judge had rejected the revision filed by the applicant against the order 29.1.2018 passed by the learned A.C.M.M.-1st, Kanpur Nagar in Case Crime No. 38604 of 2017 (State Vs. Jamanat Husain and others). By that order, the learned Magistrate had rejected the discharge application filed by the applicant under Section 227 Cr.P.C.
Earlier the applicant had approached this Court by means of 482 Cr.P.C. application no. 27481 of 2017, which was disposed of by order dated 29.8.2017 on the following terms:-
"However, it is provided that in case, the applicant moves an appropriate application for discharge through counsel before the concerned Court below within a period of one month from today, the same shall be considered and disposed off as expeditiously as possible in accordance with law, by the concerned Court below preferably within a period of four months, thereafter. For a period of five months from today or till the disposal of the discharge application, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid case.
In case no such application is filed within a period of one month from today, as prescribed above, the present order shall stand automatically vacated.
With the aforesaid directions, this application is finally disposed off."
Admittedly, in compliance of the direction issued by this Court, the applicant had moved an application for discharge under Section 227 Cr.P.C., through his counsel, on 23.9.2017.
The aforesaid application came to be rejected by the A.C.M.M., 1st, Kanpur Nagar by his order dated 29.1.2018. Such order had been passed by the learned Magistrate on merits.
Against that order, the applicant filed Criminal Revision No. 919 of 2018 before the learned Session Judge, Kanpur Nagar. The aforesaid revision has been rejected by the learned Session Judge on the ground that the discharge application filed by the applicant was not maintainable as the applicant had yet not surrendered or been enlarged on bail. The learned Court below has then followed the judgment of the learned Single Judge of this Court in the case of Dr. Gulzar Vs. State of U.P. and others reported in 2013 (1) JIC 896 (Alld.) and dismissed the discharge application as not maintainable, for that reason.
Learned counsel for the applicant submits that the approach of the learned Session Judge, is erroneous.
Elaborating his submission, learned counsel for the applicant states that while there can be no dispute that generally an accused may be entitled to file an application for discharge only after he has been enlarged on bail, however, such restriction stands waived in view of the direction issued by this Court in 482 Cr.P.C. Application No. 27481 of 2017 wherein this Court had specifically directed or permitted the applicant to file a discharge application through counsel. It is stated that the aforesaid order dated 29.8.2017 was never challenged by any party or the State and the same attained finality.
Further, it has been submitted that this issue is no longer res-integra inasmuch as the same controversy had arisen in Criminal Revision No. 2730 of 2013, which was decided by this Court by its order dated 7.11.2013. In that case, the Court had opined once there was a clear direction issued by this Court in exercise of its jurisdiction under Section 482 Cr.P.C. to entertain and decide the discharge application (filed through counsel), it remained no longer open to the learned Magistrate to insist that the applicant may first surrender. It was held as below:-
"I have considered the said arguments and perused the impugned order as well as entire material available on record. This Court vide order dated 06.11.2012 passed in Criminal Misc. Application u/s 482 Cr.P.C. No.37464 of 2012 has directed that in case the applicants moved an application u/s 245(2) Cr.P.C. before the court concerned through their counsel within 30 days from today, the same shall be disposed of in accordance with the provisions of law and till the disposal of the said application, no coercive steps shall be taken against the applicants. It appears that the learned Magistrate while passing the impugned order has although considered the matter on merit also, but has held that in view of the order dated 20.12.2012 passed in Criminal Misc. Application No.43622 of 2012 (Dr. Gulzar Vs. State of U.P.) circulated through a circular no.2386 of 2013 dated 19.02.2013 of this Court, the application is not maintainable. The said approach of the learned Magistrate is not proper as there was a clear order passed by this Court dated 06.11.2012 in the present case to decide the application for discharge in accordance with the provisions of law.
In view of the aforesaid considerations, the order passed by the learned Magistrate cannot be sustained and accordingly this revision is allowed and the order passed by the learned Magistrate is hereby set aside and the matter is sent back to him to decide the discharge application moved by the revisionists through their counsel afresh in accordance with law and the direction made in the order dated 06.11.2012 passed by this Court."
The learned A.G.A. states that the clear mandate to Section 227 Cr.P.C. is that the accused may seek a discharge only after he surrenders. To allow the accused to seek discharge through counsel is contrary to the provisions of the Act and therefore there is no error in the order passed by the Revision Court.
Having considered the argument so advanced by learned counsel for the parties, it appears that there can be no doubt that as a matter of practise an accused may apply for discharge only after he has first surrendered. Such reasoning also emerges from the fact that under Section 227 Cr.P.C. the applicant has a right to be heard on his application for discharge. The accused may be heard only once he has appeared in the Court below for which purpose he would have to first surrender and be enlarged on bail.
However, at the same time, the powers of this Court under Section 482 Cr.P.C. very wide. The Court exercises its power either to prevent the abuse of the process of this Court or to otherwise secure the ends of justice.
In matter where it appears either that the dispute between the parties is civil or petty or such where the applicant may have been falsely or mistakenly or mischievously implicated or in certain other circumstances where it otherwise appears to the Court that it may be in the best interest to secure justice that the discharge application may be heard without the applicant being made to first apply for bail, concession is granted, on a case to case basis, in the entirety of the facts and circumstances.
It also cannot be disputed that in absence of provision of anticipatory bail, at times, much time is consumed between the filing of the bail application and the bail application being actually taken up for consideration and being allowed.
It is for such and other circumstance that concession are made by this Court. In this case also it appears that the Court had exercised its discretion and permitted the applicant to file discharge application through counsel. In any view such order had long attained finality. It was then no longer open either to the learned Magistrate or to the learned Session Judge to reject the application for discharge or the Revision arising therefrom for the reasoning given that the applicant had yet not been enlarged on bail.
The judgment in the case of Dr. Gulzar Vs. State of U.P. and others relied upon by the learned Session Judge is distinguishable inasmuch as that is confined to the facts of that case where there did not exist any direction by this Court i.e. admittedly there was no discretion exercised by this Court in exercise its jurisdiction under Section 482 Cr.P.C. and the applicant (accused) had not been permitted to apply for discharge through counsel. Thus, the said judgment is clearly distinguishable.
Consequently, the order dated 22.3.2018 passed by the learned Sessions Judge, Kanpur Nagar is hereby set aside. The matter is remitted to the revisional Court to decide the discharge application filed by the applicant afresh on merits, within a period of six months from today, without requiring the applicant to either first surrender or to apply for bail.
The present application is allowed. Order Date :- 25.4.2018 Mini