Court No. - 2
Case :- APPLICATION U/S 482 No. - 22544 of 2019 Applicant :- Mustaq And 3 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shailendra Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Shailendra Kumar Tripathi, learned counsel for the applicants, Sri I.P.S. Rajpoot, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 7.2.2019 as well as the entire criminal proceeding of case no. 4625 of 2016 (State Vs. Mustaq), arising out of Case Crime No. 49 of 2016, under Sections 323, 504, 506 and 308 IPC, P.S. Kannauj, District Kannauj pending in the court of learned Additional Chief Judicial Magistrate, Kannuaj and to quash the entire proceedings of the aforesaid case and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is contended by the learned counsel for the applicants that initially the charge sheet was submitted in this case under Sections 323,, 504 and 506 IPC under which the applicant had got himself bailed out and thereafter the trial court has framed charge under the aforementioned sections on 30.11.2016. Thereafter, the I.O. has conducted further investigation in this case and submitted that there was evidence under Section 308 IPC also in the present case and the said evidence was placed before the trial court and after considering the same, the trial court has taken congnizance under section 308 IPC also against the accused-applicants and hence, fixed 24.3.2019 as the next date for passing further order. It is further argued that the cognizance under section 308 IPC could not have been taken by the trial court which would be a second congnizance which is not permissible under the law.
Learned A.G.A. has vehemently opposed the prayer for quashing of the impugned order dated 7.2.2019.
In view of the above, I do not agree with the argument of learned counsel for the applicants because the trial court was duty bound to take the evidence which was extended to it by the I.O. which had come on record against the accused-applicants and accordingly, the trial court has taken the said evidence into consideration and has passed the impugned order and the next date has been fixed to be 24.3.2019 which appears to be the date on which the trial court would commit the case to the court of sessions as addition of the section 308 IPC would oust the jurisdiction of the trail court. Therefore, the impugned order does not suffer from any infirmity and accordingly, the application deserves to be dismissed. Accordingly, this application is dismissed.
However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the settled law laid-down by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
Order Date :- 11.6.2019 Neeraj