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2015 DIGILAW 239 (ALL)

Vikash Agrawal v. State of U. P.

2015-02-06

RAMESH SINHA

body2015
JUDGMENT Ramesh Sinha, J. 1. Sri Prem Prakash, Advocate, has filed his Vakalatnama on behalf of the applicant, which is taken on record. Heard Sri Prem Prakash, learned Counsel for the applicant and Sri R.K. Maurya, learned AGA for the State. 2. This 482 Cr.P.C. application has been filed with a prayer to quash the proceedings qua the applicant initiated in S.S.T. No. 202 of 2011, arising out of case crime No. 689 of 2011, P.S. Kamalganj, District Farrukhabad, pending in the Court of Special Judge (D.A.A. Act), Farrukhabad and also the charges framed under section 120-B r/w 392 I.P.C. against the applicant in the aforesaid case. 3. The short question which has arrived in this case for adjudicating by this Court is whether Sri Sri Bhairav Lal, IIIrd Additional Sessions Judge, Farrukhabad who has been conferred the jurisdiction of Special Judge (D.A.A.) is in accordance with the provisions of section 5(2) of Dacoity Affected Area Act or not. 4. It has been argued by learned Counsel for the applicant that Sri Bhairav Lal, IIIrd Additional Sessions Judge, Farrukhabad who has assumed the jurisdiction of the Court of Special Judge (DAA) Shd is proceeding with the trial instituted against the applicant, has no jurisdiction to try the case as Special Judge (DAA) Act as there is no Notification issued by the State Government as envisaged under section 5(2) of U.P. Dacoity Affected Areas Act, 1986 making the appointment of Sri Bhairav Lal as Additional Sessions Judge/Special Judge (DAA) Fatehgarh exists. He further submits that the power conferred upon the the State Government to make the appointment of Special Judge after making consultation with the High Court. He further argued that power of the State Government has been usurped by this Hon'ble Court and continuance of the proceeding of this case before the Court of being presided over by Sri Bhairav Lal, IIIrd, Additional Sessions Judge, Farrukhabad is not according to jurisdiction and as such is illegal. He next argued that there is no evidence whatsoever or material available on record on the basis of which it can be said that the applicant is involved in the commission of any offence before framing the charges. He next argued that there is no evidence whatsoever or material available on record on the basis of which it can be said that the applicant is involved in the commission of any offence before framing the charges. It was incumbent upon the learned Special Judge to have exercised the powers under section227 of the Cr.P.C. and would have give the opportunity of making submissions to the applicant and his Counsel and considering the materials and evidence available on record would have discharged the applicant. He submits that no opportunity of making submissions for discharging the applicant was given by the learned Special Judge, thus, the learned Special Judge has failed to exercise the jurisdiction vested upon him by law. Hence, the proceedings against the applicant be quashed on this Court alone. In support of his contention, learned Counsel for the applicant has placed reliance of a judgment of the Apex Court, Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others. (1994) 6 SCC 731 5. Learned AGA opposed the prayer for quashing and has stated that the impugned order passed by the Court below is in accordance with law and the present petition is liable to be dismissed by this Court. 6. Considered the submissions advanced by the learned Counsel for the parties and perused the record. 7. So far as the first argument of the learned Counsel for the applicant is concerned, in this regard section 5(2) of the Dacoity Affected Area Act is relevant for consideration which is quoted here-in-below: "5 (2) A Special Court shall consist of a Single Judge, who shall be appointed by the High Court from amongst the serving Sessions Judges or Additional Sessions Judges" 8. In order to examine and verify the said argument of learned Counsel for the applicant, the Court called a report from the Registrar General of this Court and it has been informed by the Registrar General that Sri Bhairav Lal, IIIrd Additional Sessions judge, Farrukhabad has been appointed as Special Judge at Farrukhabad under section 5(2) of U.P. Dacoity Affected Areas Act, 1983 vide this Court's Notification No. 322/JR(S)/2014 dated 10.4.2014 in pursuance of the Government Order dated 12.1.1981. This Court's Notification dated 10.4.2014 has also been produced before this Court by him which is also annexed as Annexure-8 of the affidavit. 9. This Court's Notification dated 10.4.2014 has also been produced before this Court by him which is also annexed as Annexure-8 of the affidavit. 9. It is further apparent that as per section 5(2) of the said Act, the Judge of the Special Court shall be appointed by the High Court amongst the serving Judges or Additional Sessions Judge, hence, to say that the said Judge was not appointed in consultation with the State Government by the High Court as has been argued by the learned Counsel for the applicant is wholly unfounded as he has been appointed by the High Court in view of the provisions contained under section 5(2) of the Act. 10. The case law cited by the learned Counsel for the applicant who has drawn the attention of the Court towards paras 12 and 14 of the judgment of the Apex Court referred above is not applicable in the present case as the provision of section 36(2) of the NDPS Act is different to that of section5(2) of the D.A.A. Act. 11. So far as the second argument of the learned Counsel for the applicant that the applicant was not given opportunity of hearing by the Trial Court for and discharge him under section 227 Cr.P.C. also does not appear to have any substance as from the perusal of the averments made in the affidavit filed in support of the application, there is no averment made that the applicant ever made any application under section 227 Cr.P.C. for discharging him for the offence before the Trial Court nor has annexed any application moved by the applicant under section 227 Cr.P.C. before the Trial Court with the present application under section 482 Cr.P.C. It appears that the Trial Court on the oral submissions made by the learned Counsel for the applicant for discharging him under section 227 Cr.P.C. heard him and rejected it and framed charges against the applicant on 17.3.2013. 12. In view of the foregoing discussions, I am of the view that the order passed by the trial Court framing charges against the applicant does not suffer from any irregularity, illegality or jurisdictional error, hence, no interference is required by this Court either for quashing of the charges framed against the applicant or proceedings of the aforesaid case. The present 482 Cr.P.C. application lacks merit. It is liable to be dismissed and is, accordingly, dismissed.