Court No. - 63 RESERVED
Case :- MATTERS UNDER ARTICLE 227 No. - 1226 of 2018 Petitioner :- Shailendra Pal Singh Respondent :- State Of U.P.
Counsel for Petitioner :- Sudhakar Shukla Counsel for Respondent :- G.A.
Hon'ble Amar Singh Chauhan,J.
Heard learned counsel for the petitioner, learned AGA and perused the material on record.
This petition under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the impugned order dated 31.7.2017 passed by the Additional Sessions Judge, Court No. 13, Moradabad in Session Trial No. 1123 of 2015 (State Vs. Maqbool) bearing Case Crime No. 57 of 2015 under Sections 147, 148, 149 and 307 IPC, P.S. Asmauli, District Sambhal by which fine of Rs. 200/- imposed upon the petitioner and also ordered that adverse entry in the character role be also made.
Brief facts which are requisite to be stated for adjudication of the petition are that the Session Trial No. 1123 of 2015 (State Vs. Maqbool) arising out of Case Crime No. 57 of 2015 under Sections 147, 148, 149 and 307 IPC, P.S. Asmauli, District Sambhal is pending before the Additional Sessions Judge, Court No. 13, Moradabad and accused Maqbool is absconded from last five years. For procuring of his attendance, a NBW and process under Sections 82 and 83 were issued against him but he could not arrested vide order dated 31.7.2017 passed by the Additional Sessions Judge, Moradabad. It is also mentioned in the aforesaid impugned order that the accused was present on 26.6.2017 but the police report submitted by the petitioner was wrong, therefore, learned Additional Sessions Judge imposed the fine of Rs. 200/- for not producing the accused Maqbool before the court concerned and also directed to the Superintendent of Police for making adverse entry in the character role of the petitioner.
Being aggrieved from the part of this order by which a fine was imposed and directed the Superintendent of Police to make adverse entry in the character role of the petitioner, this petition was filed before this Court.
It is submitted by the learned counsel for the petitioner that the Sessions Judge passed the order on the reason that police report is wrong because accused Maqbool is present before the Court on 26.6.2017 whereas order sheet shows that accused Maqbool is not present before the Court on 26.6.2017 and If the accused is present before the Court on 26.6.2017 then why he is not sent behind the bar because non bailable warrant was already issued against the accused Maqbool.
It is further submitted that till today accused Maqbool is not arrested and petitioner as well as other inspector also submitted the report to this effect. The impugned order of fine and adverse entry passed by the court below is ex facie, illegal and passed in a hurriedly manner without watching the documentary evidence produced by the petitioner and without affording opportunity of hearing. The impugned order is based on misconception of provisions of law and policy.
Learned AGA has contended that the order dated 26.6.2017 of the session trial clearly indicates that accused Maqbool was absent and on relying on the thumb impression, on the margin of order sheet of said date, the impugned order is passed which cannot be said to be justified and no purpose would be served in keeping the petition pending.
In the case in hand, the aforesaid order dated 26.6.2017 is clearly indicates that accused was not present and on relying the thumb impression affixed in the margin of the order, the impugned order was passed which is itself contradictory. Besides this the petitioner is not the custodian of the file and it cannot be said who has affixed the thumb impression on the side of the order sheet dated 26.6.2017. Session Clerk or Reader, the custodian of file, can explain that accused was present on the said date and as to why the accused be not remanded to jail, therefore, part of the impugned order by which the fine of Rs. 200/- was imposed and also directed to make adverse entry in the character role of the petitioner is unwarranted and arbitrary.
In view of what has been submitted and discussed above, the very part of the impugned order is liable to be set aside.
Accordingly, the petition is allowed and the impugned order dated 31.7.2017 passed by the Additional Sessions Judge, Court No. 13, Moradabad in Session Trial No. 1123 of 2015 (State Vs. Maqbool) bearing Case Crime No. 57 of 2015 under Sections 147, 148, 149 and 307 IPC, P.S. Asmauli, District Sambhal by which fine of Rs. 200/- imposed upon the petitioner and also ordered that adverse entry in the character role be also made is hereby quashed.
Order Date :- 26.4.2018 AKK