Court No. - 83
Case :- APPLICATION U/S 482 No. - 19793 of 2020 Applicant :- Ramji Mishra Opposite Party :- State Of U.P. And An 6 Others Counsel for Applicant :- Ravi Prakash Pandey Counsel for Opposite Party :- G.A.,Vinod Kumar Patel
Hon'ble Rajeev Misra,J.
1. Heard Mr. Ravi Prakash Pandey, learned counsel for applicant, learned AGA for State and Mr. Vinod Kumar Patel, learned counsel representing opposite parties-2 to 7.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed challenging order dated 24.09.2019 passed by Chief Judicial Magistrate, Ballia in Case No. 2159 of 2017 (Ramji Vs. Vinod and others) as well as order dated 17.12.2019 passed by Sessions Judge, Ballia in Criminal Revision No. 51 of 2019 (Ramji Misra Vs. State of U.P. and others) whereby aforesaid criminal revision arising out of order dated 24.09.2019, has been dismissed.
4. Record shows that feeling aggrieved by summoning order dated 24.02.2017 passed by Chief Judicial Magistrate in Complaint Case No. 5159 of 2017 (Ramji Mishra Vs. Vinod gupta and others) under Sections 147, 302 and 201 I.P.C., Police Station-Bansdeeh Road, District-Ballia as well as the order dated 06.03.2018, whereby non-bailable warrants have been issued against applicants, applicants earlier approached this Court by means of an Application under Section 482 Cr.P.C. No. 11439 of 2018 (Vinod Gupta and 5 others Vs. State of U.P. and another). Aforesaid application came to be dismissed vide judgement and order dated 31.05.2018.
5. Feeling aggrieved by judgement and order dated 31.05.2018, opposite parties 2 to 7 approached Supreme Court by filing Special Leave to Appeal (Criminal) No. 7496 of 2018 (Vinod Gupta and others Vs. The State of Uttar Pradesh and others), wherein Supreme Court passed following order on 17.09.2018:
" Issue notice.
On the petitioners' undertaking that they will appear on 24.09.2018 before the court of learned Chief Judicial Magistrate, Ballia, there shall be stay of non-bailable warrants issued against them."
6. Pursuant to order dated 17.09.2018, opposite parties 2 to 7 appeared before court below by moving an application dated 24.09.2018. Photocopy of the same is on record at page 95 of the paper-book. On aforesaid application filed by opposite parties 2 to 7, Chief Judicial Magistrate, Ballia passed an order dated 24.08.2018 in Case No. 2159 of 2017 (Ramji vs. Vinod and others).
7. Chief Judicial Magistrate, Ballia vide order dated 24.08.2019 proceeded to conclude that since proceedings of the case have been stayed by Supreme Court, therefore, in compliance of order dated 17.09.2018, it is directed that further proceedings of above mentioned case against opposite parties 2 to 7 shall remained stayed.
8. Applicant-Ramji Mishra, who is complainant, feeling aggrieved by order dated 24.09.2018 passed by Chief Judicial Magistrate, Ballia, challenged the same by means of Criminal Revision No. 51 by 2019 (Ramji Mishra Vs. State of U.P. and others) before District and Sessions Judge, Ballia. Aforesaid Criminal Revision also came to be dismissed vide order dated 17.12.2019 passed by District & Sessions Judge, Ballia.
9. Feeling aggrieved by order dated 17.12.2019 passed by District and Sessions Judge, Balia and order dated 24.09.2018 passed by Chief Judicial Magistrate, Ballia, revisionist, who is complainant of afore-mentioned case, has now approached this Court by means of present application under Section 482 Cr.P.C.
10. Learned counsel for applicant contends that order impugned dated 24.09.2018 passed by Chief Judicial Magistrate, Ballia is manifestly illegal and contrary to the record. He submits that Supreme Court vide order dated 17.09.2018 clearly provided that in case opposite parties 2 to 7 appear before court below in that eventuality non-bailable warrants issued against them shall remain stayed. However, order dated 24.09.2018 passed by concerned Chief Judicial Magistrate is completely erroneous as the Chief Judicial Magistrate, Ballia has recorded a finding in the order dated 24.09.2018 that since proceedings of Case No. 2159 of 2017 has been stayed by Apex Court, therefore, in that eventuality it is provided that until further orders, proceedings of above mentioned complaint case shall remain stayed against opposite parties 2 to 7. On the aforesaid premise, learned counsel for applicant, submits that without giving reasons and without applying judicial mind, conclusion recorded by Chief Judicial Magistrate in order impugned dated 24.09.2018 is based upon a non-existent fact. As such, order dated 24.09.2018 is illegal and perverse.
11. Learned counsel for applicant further contends that revisional court has completely ignored the merits of the case and has passed order dated 17.12.2019 by simply concurring with the reasoning recorded by Chief Judicial Magistrate, Ballia in his order dated 24.09.2018. As such, revisional court has not only committed a jurisdictional error but has also exercised it's jurisdiction with material irregularity. Learned counsel for applicant submits that Magistrate has not applied his judicial mind to the material on record and the revisional court failed to take judicial notice regarding true import of the order dated 17.09.2018 passed by Supreme Court. He submits that revisional court failed to exercise it's jurisdiction with due diligence and affirmed the order passed by Chief Judicial Magistrate, Ballia in a mechanical manner. Revisional Court has thus committed judicial error in passing order dated 17.02.2019. On the aforesaid premise, learned counsel for applicant submits that order dated 24.09.2019 passed by concerned Magistrate and order dated 17.12.2019 passed by Revisional Court are liable to be quashed by this Court.
12. Per Contra, learned A.G.A and Mr. Vinod Kumar Sharma, learened counsel representing opposite parties 2 to 7 have supported the impugned orders. They contend that no illegality has been committed by court below in passing impugned orders. Orders impugned are perfectly just and legal. They further submit that pursuant to order dated by 17.09.2018 passed by Supreme Court, court below has rightly stayed the proceeding of above mentioned case against opposite parties 2 to 7.
13. Having heard learned counsel for applicant, learned A.G.A. for State, Mr. Vinod Kumar Patel, learned counsel representing opposite parties-2 to 7 and upon perusal of material on record, Court finds that it is an undisputed position that trial court summoned opposite parties 2 to 7 vide summoning order dated 24.02.2017. As opposite parties 2 to 7 failed to appear before court below, non-bailable warrants were issued against them vide order dated 06.03.2018. Against orders dated 24.02.2017 and 06.03.2018, opposite parties 2 to 7 filed a Criminal Misc. Application under Section 482 Cr.P.C. before this Court, which was dismissed vide judgement and order dated 31.05.2018.
14. Feeling aggrieved by judgement and order dated 31.05.2018, opposite parties 2 to 7 filed an S.L.P. before Supreme Court wherein an interim order dated 17.09.2018 was passed. In compliance of above order dated 17.09.2018, opposite parties 2 to 7 appeared before court below vide application dated 24.09.2018. On this application, concerned Magistrate passed order dated 24.08.2018 whereby proceedings of above mentioned complaint case were stayed on the ground that proceedings against opposite parties 2 to 7 have been stayed by Supreme Court itself vide order dated 17.09.2018. Against order dated 24.08.2018, revisionist filed a criminal revision before District and Sessions Judge, Ballia, which came to be dismissed vide order dated 17.12.2019.
15. From perusal of interim order dated 17.09.2018 passed by Supreme Court, it is apparent that the by means of aforesaid order, limited protection was granted to opposite parties 2 to 7 by providing that in case, applicants appear before court below on 24.09.2018, non-bailable warrants issued against applicants shall remain stayed. Pursuant to above order, opposite parties 2 to 7 appeared before court below on 24.09.2018. However, Chief Judicial Magistrate, Ballia instead of taking the appearance of opposite parties 2 to 7 on record of complaint case and thereafter, proceed with the matter as required in law upon appearance of accused in a complaint case passed order dated 24.09.2019 concluding therein that since proceedings of complaint case against opposite parties 2 to 7 have been stayed by Supreme Court, therefore, in compliance of above proceedings of above mentioned complaint case shall remained stayed against opposite parties 2 to 7. Concerned Magistrate has passed impugned order dated 24.09.2019 on an erroneous assumption as vide order dated 17.09.2018 passed by Apex Court clearly goes to show that only non-bailable warrant issued against opposite parties 2 to 7 have been stayed on their undertaking that they shall appear before court below on 24.09.2018 . Upon appearance of opposite parties 2 to 7, concerned Magistrate ought to have passed an order as is required to be passed upon appearance of an accused in a complaint case. Consequently, reasoning assigned by Chief Judicial Magistrate, Ballia in order dated 24.09.2019 is therefore not only perverse but also illegal. No such protection has been granted to accused by Supreme Court as assigned in order dated 24.09.2018 passed by Chief Judicial Magistrate, Ballia. The Sessions Judge instead of applying his judicial mind with due consideration of the facts and material on record, simply concurred with the view expressed by Chief Judicial Magistrate. Concerned Sessions Judge failed to take notice of true import of the order passed by Supreme court and also the procedure, which is required to be followed by Magistrate on appearance of an accused in a complaint case before court.
16. Findings recorded by Chief Judicial Magistrate that since pursuant to order dated 17.09.2018 proceeding of complaint case has been stayed, therefore, there is no occasion to proceed against opposite parties 2 to 7, is not only perverse but also erroneous. This erroneous finding recorded by Chief Judicial Magistrate, Ballia has been affirmed by Sessions Judge, Ballia, which is manifestly illegal as there is no basis for the same. The orders passed by concerned Sessions Judge and Chief Judicial Magistrate, Ballia, therefore, cannot be sustained as the true import of order dated 17.09.2018 is to the effect that non- bailable warrants issued against opposite parties 2 to shall remain stayed provided they appear before Chief Judicial Magistrate, Ballia on 24.09.2018. Once opposite parties 2 to 7 have appeared, court below ought to have proceeded with the matter as is required to be proceeded upon appearance of an accused in a complaint case.
17. For the facts and reasons noted above, orders impugned in present application cannot be sustained and are liable to be quashed. Consequently, order dated 24.09.2019 passed by Chief Judicial Magistrate, Ballia in Case No. 2159 of 2017 (Ramji Vs. Vinod and others) as well as order dated 17.12.2019 passed by Sessions Judge, Ballia in Criminal Revision No. 51 of 2019 (Ramji Misra Vs. State of U.P. and others) are hereby quashed.
18. Present application is allowed. Matter is remanded to Chief Judicial Magistrate Ballia, who shall pass a fresh order in the light of observations made above within a period of two months from the date of production of certified copy/computer generated copy of this order, which shall be filed by applicant before Chief Judicial Magistrate, Ballia by means of a Notary Affidavit.
Order Date :- 21.9.2021 YK