Court No. - 77
Case :- APPLICATION U/S 482 No. - 45888 of 2019 Applicant :- Vasistha Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ishwar Kumar Upadhyay Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicants Vasistha Singh and three others against State of U.P. and Saroj Devi with prayer to quash order dated 23.11.2019 passed by Sessions Judge, Ballia, in Criminal Revision No. 148 of 2019, Vasistha Singh and others Vs. State of U.P. and another, summoning order dated 27.7.2019 as well as entire proceedings of Complaint Case No. 2104 of 2017, Saroj Devi Vs. Vasistha Singh and others, under Sections 323, 504, 506, 452 I.P.C., P.S. Phephana, district Ballia, pending in court of C.J.M., Ballia.
Learned counsel for the applicants argued that it is a misuse of process of law wherein applicants have been summoned of offences punishable u/s 323, 504, 506, 452 I.P.C. for an alleged occurrence of 10.00 A.m. of 28.7.2012, whereas another offence for same occurrence at 12.00 noon of the same day was got registered by O.P. No. 2, wherein applicants are facing trial and no recital of the alleged offence of 10.00 A.M. was made in it. Subsequently an F.I.R. was lodged for this alleged occurrence of 10.00 A.M., wherein final report was submitted, wherein protest was lodged and after recording statements u/s 200 and 202 Cr.P.C. the applicants were summoned, as above. They moved an application u/s 482 Cr.P.C. before this court, wherein those facts were alleged, but this court directed for moving discharge application before Court of Magistrate and in compliance of the same, discharge application was moved before the Court of C.J.M., Ballia, which was rejected with the finding that applicants have not got their bail from above court. It was not considered that for the same occurrence of the same day another criminal case has been lodged, wherein applicants are on bail and are facing trial. Whereas no recital of the present case was made in that report. This subsequent accusation was of the same day of two hours before, which is a concocted one and this was a malicious prosecution. But even after being assailed before revisional court, this was not taken into consideration. Hence this application with above prayer.
Learned A.G.A. has vehemently opposed the above arguments.
Finding of Magistrate in impugned order dated 27.7.2019 is of this fact that accused persons were summoned for offence punishable u/s 323, 504, 506, 452 I.P.C. on the basis of statements recorded u/s 200 Cr.P.C. and enquiry made u/s 202 Cr.P.C. This finding was substantiated by evidence on record. Summoning order was made on the basis of prima-facie existence of ingredients of the offences punishable under above sections and on the basis of this evidence, summoning order was passed. This order was challenged before this court u/s 482 Cr.P.C., wherein this fact was mentioned that for the same occurrence of the same day, another criminal case is pending, wherein the applicants are facing trial. This was misuse of process of law. But this court ordered for moving discharge application before the Magistrate. Magistrate, moved with discharge application, found that no further evidence was there except the evidence collected in the enquiry u/s 200 and 202 Cr.P.C. Hence the Magistrate was having no option, but to reject the discharge application. Unless evidence u/s 244 Cr.P.C. are brought on record, wherein those facts are brought, the discharge application was with no substance and before summoning there was sufficient evidence. Hence for proceeding u/s 245(1) Cr.P.C. ground was not there. This order was challenged before revisional court and revisional court dittoed the finding of Magistrate. There was no illegality or irregularity in the orders of the Magistrate as well of revisional court. Accordingly, this application u/s 482 Cr.P.C. is of no force.
The contention reveals that for an occurrence of the same day at 12.00 noon a criminal trial is pending and this fact is to be cross-examined to the witness, who is complainant, u/s 244 Cr.P.C. for determining a ground for discharge u/s 245 Cr.P.C. Hence learned Magistrate is to provide opportunity to the applicants as well complainant for entering in evidence u/s 244 Cr.P.C. for bringing those facts on record.
But Bail is to be taken before entering into proceeding u/s 244 Cr.P.C. The applicants, who are of the same village with no criminal antecedents, are next door neighbour and Pattidar, have been enlarged on bail in a proceeding of the same day and this accusation is there. Hence this fact is to be considered by the Magistrate while granting bail in view of the settled law laid 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.
Hence, if the applicants appear and surrender before the court below within thirty 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 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. and the fact that for the accusation of the same day in between same parties, the applicants are on bail and are facing trial, expeditiously preferably, if possible, on the same day, not a precedent but a direction under above facts and circumstances.
For a period of thirty 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.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 17.12.2019 Pcl