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2011 DIGILAW 238 (ALL)

Aditya Pratap Singh @ Pappu v. State of U. P.

2011-01-31

RAJESH DAYAL KHARE

body2011
Rajesh Dayal Khare, J.;- Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The present application under Section 482 Cr.P.C., has been filed for quashing the order dated 26.07.2010 passed by learned Chief Judicial Magistrate, Siddharth Nagar in Criminal Case No. 4439 of 2006 (State Vs. Aditya Pratap Singh alias Pappu and others), under Sections 143, 353, 504, 506 I.P.C., and Section 7 of Criminal Law Amendment Act, Police Station Siddharth Nagar, District Siddharth Nagar whereby discharge application filed by the applicant has been rejected as well as for quashing of of the revisional Court's order dated 10.11.2010 passed by learned Sessions Judge, District Siddharth Nagar whereby criminal revision filed against the aforesaid order has been rejected as well as for quashing of the proceedings of Criminal Case No. 4439 of 2006. 3. It is contended by learned counsel for the applicant that as per prosecution, the applicant, who was under trial for the offence under Section 302 I.P.C., and detained in jail, was taken for appearance before the Court by the Sub-Inspector on 01.10.2006 and he abused the police personnels as well as other accused persons for being denied food items supplied by his relatives for which F.I.R., was lodged on 06.10.2010. It is further contended that the matter was investigated and charge sheet has been submitted but the applicant was unaware of any such incident as referred in the F.I.R., nor any information regarding the investigation was given to the applicant, as the applicant was in jail.It is next contended that when the applicant was released on bail under Section 302 I.P.C., he came to know about the aforesaid prosecution under Sections 143, 353, 504, 506 I.P.C., and Section 7 of Criminal Law Amendment Act, the applicant immediately moved an application under Section 239 Cr.P.C. for discharge which has been rejected on the ground that the applicant was being taken for Court appearance by the Police from jail and he cannot be treated to be in prison and even the revision filed against the same has been rejected. Learned counsel for the applicant has referred to Section 55 of the Prisoners Act, 1994 which is quoted below for ready reference:- "55. Extramural custody, control and employment of prisoners--. Learned counsel for the applicant has referred to Section 55 of the Prisoners Act, 1994 which is quoted below for ready reference:- "55. Extramural custody, control and employment of prisoners--. A prisoner, when being taken to or from any prison in which he may be lawfully confined, or whenever he is working outside or is otherwise beyond the limits of any such prison, shall be deemed to be in prison and shall be subject to all the same incidents as if he were actually in prison. 4. Learned counsel for the applicant has further referred to Section 52 of the Prisoners Act to show that it was in the exclusive jurisdiction of the Superintendent of the Jail to have either enquired the matter himself or if he found that the matter is heinous, he may refer the matter to the District Magistrate or any Magistrate Ist Class having jurisdiction to try the matter. In this regard learned counsel has also referred to paragraph 808 of the U.P. Jail Manual and has argued that it is the discretion of the Superintendent of the Jail to determine with respect to any act under the Indian Penal Code whether he would use his own powers of punishment or move the Magistrate to enquire into, it in accordance with the provisions of Code of Criminal Procedure. Learned Counsel has relied upon a reported decision of this Court reported in 1982 A.L.J. 133 in the matter of Dharampal Vs. State of State of U.P. and others in support of his contention. 5. Learned A.G.A. has argued that as per Section 3(1) of the Act, the applicant was not under imprisonment when he committed the alleged offence, therefore the provisions of the said Act would not apply in the present case. 6. Learned counsel for the applicant has next argued that in view of the aforesaid provisions, no F.I.R., could have been lodged by the police personnel and no investigation could have been made in the matter, therefore, filing of charge sheet pursuant to the F.I.R., is bad in law. It is further aruged that it is under the specific jurisdiction of the Jail Superintendent to decide the matter either by himself or to have sent the matter to the concerned Magistrate having the jurisdiction. It is thus contended that the order dismissing the discharge application is bad in law. 7. It is further aruged that it is under the specific jurisdiction of the Jail Superintendent to decide the matter either by himself or to have sent the matter to the concerned Magistrate having the jurisdiction. It is thus contended that the order dismissing the discharge application is bad in law. 7. After hearing the learned counsel for the applicant, learned A.G.A. and after perusing the order impugned as well as averments made in the present application, this Court is of the opinion that the matter requires re-consideration by the concerned Court below. 8. Accordingly, the order dated 26.07.2010 passed by learned Chief Judicial Magistrate, Siddharth Nagar in Criminal Case No. 4439 of 2006 (State Vs. Aditya Pratap Singh alias Pappu and others), under Sections 143, 353, 504, 506 I.P.C., and Section 7 of Criminal Law Amendment Act, Police Station Siddharth Nagar, District Siddharth Nagar whereby discharge application filed by the applicant has been rejected as well as for the revisional Court's order dated 10.11.2010 passed by learned Sessions Judge, District Siddharth Nagar whereby criminal revision filed against the aforesaid order has been rejected is hereby set aside. 9. Learned counsel for the applicant states that the applicant shall move an appropriate application as per provisions of Criminal Procedure Code before the concerned Court below, within a period of 15 days from today and in case such an application is filed the same shall be considered and disposed off as expeditiously as possible in accordance with law, preferably within a period of three months from the date of production of a certified copy of this Court. 10. For a period of 4 months from today or till the disposal of the aforesaid application, whichever is earlier by the concerned Magistrate, no coercive action shall be taken against the applicant in the aforesaid case. 11. With the aforesaid directions, this application is finally disposed off.