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2015 DIGILAW 359 (ALL)

MAN CHAND @ MANIK CHAND v. STATE OF U. P.

2015-02-24

KARUNA NAND BAJPAYEE

body2015
JUDGMENT Hon'ble Karuna Nand Bajpayee,J. This application u/s 482 Cr.P.C. has been filed for quashing the order dated 28.1.2015 and 5.2.2015 passed in Complaint Case No 106 of 2012(Jata Shanker Vs. Man Chand and others) u/s 419, 420 IPC P.S. Badlapur District Jaunpur pending before Chief Judicial Magistrate, Jaunpur. It transpires that an application seeking discharge was moved before the trial court but the same did not find favour with the court and the same was rejected. Aggrieved by this order of the court whereby discharge was refused a revision was filed in the lower revisional court. The same though was admitted but the court did not find it fit to grant any stay order. Thereafter coercive process was issued by the trial court on 28.1.2015 in order to procure the presence of the accused. It seems that an application was moved on behalf of the applicant to put in abeyance the coercive process but the same was refused by the trial court vide its order dated 5.2.2015. Both the orders, one issuing coercive process and another refusing to stay the same have been challenged in this application. Heard applicants' counsel as well as learned A.G.A. and perused the record. The sole contention raised by the counsel is that as the revision had already been admitted against the trial court's order whereby it had refused to discharge the applicant, therefore, even though the revisional court did not stay the trial proceedings it should be deemed that the same have been stayed. In this regard the doctrine of merger has been emphasized upon by the counsel and an Apex Court's decision in Union of India Vs. West Coast Paper Mills Limited 2004 Legal Eagle(SC) 120 has also been relied upon. I have perused the record in the light of the submissions made by the counsel and have gone through the case law also. The point in issue involved before the Apex Court was about the period of limitation where the point of its inception as well as its termination were under consideration. Actually in an earlier decision given by the Apex Court in P.K. Kutty Anuja Raja and another Vs. State of Kerala and another(JT 1996(2) SC 167: an order of assessment under the agricultural income tax was set aside by the High Court vide its judgment given in 1968. Actually in an earlier decision given by the Apex Court in P.K. Kutty Anuja Raja and another Vs. State of Kerala and another(JT 1996(2) SC 167: an order of assessment under the agricultural income tax was set aside by the High Court vide its judgment given in 1968. A Civil Suit was filed in the year 1974 which was held to be barred by limitation. There was argued that as the mistake had already been discovered in the year 1971 when the court dismissed the appeal filed by the State against the order of the High Court passed in year 1968 and therefore, the period of limitation should be reckoned accordingly. This plea was negatived by the Apex Court by making the observations as follows: "We are unable to agree with the learned counsel. It is not in dispute that at his behest the assessment was quashed by the High Court in the aforesaid OP on 1.1.1968. Thereby the limitation started running from that date. Once the limitation starts running, it runs its full course until the running of the limitation is interdicted by an order of the Court." When this issue came up for consideration before the larger Bench, adjudicating upon the correctness of the aforesaid view given in the case of P.K. Kutty(Supra) the larger bench took a different view and it was held therein as follows: "41. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the lis unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit. 42.It has not been and could not be contended that even under the ordinary civil law the judgment of the appellate court alone can be put to execution. Having regard to the doctrine of merger as also the principle that an appeal is in continuation of suit, we are of the opinion that the decision of the Constitution Bench in S.S. Rathore(Supra) was to be followed in the instant case. 43............................... Having regard to the doctrine of merger as also the principle that an appeal is in continuation of suit, we are of the opinion that the decision of the Constitution Bench in S.S. Rathore(Supra) was to be followed in the instant case. 43............................... 44.We, therefore, are of the opinion that P.K. Kutty (Supra) does not lay down the law correctly and is overruled accordingly." Even a fleeting glance on the aforesaid decision given by Hon'ble Supreme Court relied upon by the applicant's counsel would make it manifestly clear that the judicial rationale of the doctrine of merger has nothing to do with the controversy involved in the present matter where the trial court has proceeded to issue coercive process against the accused to procure his attendance. The trial cannot proceed in vacuum without availability of accused who is to be tried. If the proceedings of the trial were not stayed by any superior court the trial had to be proceeded with towards its logical culmination. The trial court cannot helplessly behold the stagnation of the trial nor can it be itself a party in scuttling the trial just because some order passed by it has been challenged in the superior court. The accused or any of the litigating parties cannot be allowed to hold the entire judicial proceedings of the court at ransom under any such convenient pretext that they have challenged some order of the court in revision. This will be giving too long a rope to them and it shall be virtually impossible to expeditiously proceed with the trial in such a situation. It is for the revisional court or the appellate court to see and adjudge upon the appropriateness of staying the proceedings of the lower court after admission of appeals or revisions against the order passed by the lower courts. If in its wisdom the revisional court did not deem it proper to stay the trial, the trial court was bound to proceed with the trial in accordance with law. The issuing of coercive measures against the accused was a step to procure the attendance of accused for the purpose of trial and there was nothing wrong in it. If in its wisdom the revisional court did not deem it proper to stay the trial, the trial court was bound to proceed with the trial in accordance with law. The issuing of coercive measures against the accused was a step to procure the attendance of accused for the purpose of trial and there was nothing wrong in it. How the period of limitation can be counted and which period shall be excluded in calculating the same and when the period of limitation shall begin or end are issues alien and wholly extraneous to the present controversy in question and cannot be of any help to the applicant. Actually to put it in simpler words the rationale of doctrine of merger is that once a superior court passes certain orders then the order of the inferior court merges into the same and the superior court's order become final and binding. It may be of use to make a reference to the case of Kunhayammed and others Vs. State of Kerala and Another (2000)6 SCC 359 wherein the following observations were made by the Hon'ble Supreme Court in this regard :- "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way- Whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below .However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." In the considered view of the court the case law relied upon by counsel has no application in the present matter which is a purely criminal case. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." In the considered view of the court the case law relied upon by counsel has no application in the present matter which is a purely criminal case. Even the facts of the aforesaid case law relate to an entirely different controversy emanating from a civil matter and the analogy of the aforesaid matter cannot be over stretched and cannot be made applicable to the present matter under consideration. Almost in most of the criminal trials where conviction is recorded by the trial court the appeals are admitted by the High Court almost as a matter of right but that does not go to mean that in all such appeals admitted against the judgment and orders of conviction it should also be presumed or deemed that the order of conviction has been stayed by the appellate court. The law with regard to staying the order of conviction is too well settled and in rare cases the order of conviction is stayed by the appellate court. Where the accused have been convicted the judgment and order recording conviction is put in abeyance only according to the settled principles which have been evolved by the Apex Court over a long period of time. Many a time the appellate court or the revisional court issues notices to the other side or even admits the appeal or revision but refuses to stay the proceedings. The submission made by the counsel in this regard is wholly untenable and this court is unable to persuade itself to hold that whenever an appeal or revision is filed against any order there shall be a deemed stay on the order under challenge or the proceedings under challenge. There has to be a specific order of the higher court in that regard. Such has been the established and time honored judicial practice of the courts also and this court has no reason to take a different view in this regard. The applicability of the doctrine of merger has been utilized by the Hon'ble Apex Court in entirely different context and the case law relied upon is wholly inapplicable in the present matter and context of criminal proceedings. The applicability of the doctrine of merger has been utilized by the Hon'ble Apex Court in entirely different context and the case law relied upon is wholly inapplicable in the present matter and context of criminal proceedings. It is difficult to comprehend as to how the doctrine of merger can be of any use to the applicant in substantiating the argument that once some order passed at some interlocutory stage of the trial has been challenged in superior court then the whole trial has to remain in abeyance and there would be a deemed stay regardless of the fact whether superior court passes or does not pass any stay order. This court does not propose to delve into this subject any further. The view taken by the trial court whereby in the absence of any specific order by the revisional court staying the proceedings it refused to stay the coercive process seems to be the correct view and this court does not find any good ground to make any interference in the same. The impugned orders do not reflect any abuse of court's process or illegality and therefore do not call for any interference in the same. However, a request has been made by the counsel that as it is being desired by the accused to obtain bail after surrendering in the court, a protective direction may be issued to the lower court to decide the proposed bail application on the same day in the light of the law laid down in Full Bench decision of Amarawati and others Vs. State of U.P. 2004(57), ALR 290. It may be observed that the law regarding the hearing of bail applications on the same day and all its related aspects have been comprehensively dealt with in the aforesaid Full Bench decision of Amarawati and others Vs. State of U.P. 2004(57), ALR 290 relied upon by the counsel which was also approved by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009(3) ADJ 322(SC). All the courts must endeavour to decide the bail applications on the same day in suitable cases, if it is possible for them to do so depending upon the peculiar facts and circumstances of the case in question. This is a matter of lower court's discretion which they must exercise judiciously in appropriate cases. State of U.P. 2009(3) ADJ 322(SC). All the courts must endeavour to decide the bail applications on the same day in suitable cases, if it is possible for them to do so depending upon the peculiar facts and circumstances of the case in question. This is a matter of lower court's discretion which they must exercise judiciously in appropriate cases. Above mentioned Full Bench decision of this Court and the decision of Hon'ble Apex Court are binding on the lower courts. They must be followed in letter and spirit. There is no need to pass separate orders in this regard. However, it the peculiar facts and circumstances of the case it may be observed that if after surrendering in the court below an application for bail is moved on behalf of the accused within two months from today, the same shall be decided in accordance with law as has been laid down in aforementioned cases. No coercive measures shall be taken or given effect to in the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier. It is made clear that no application for extension of time shall be entertained if this order is not availed by the accused in the stipulated period of time. It is further clarified that for the present this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court. In the last, the counsel has expressed his concern and anxiety about the possibility that the revision pending in the lower revisional court may become infructuous if the same is not decided at an early date, as the trial court proceedings have not been put in abeyance. This court, therefore, deems it appropriate to direct the lower revisional court to expedite the hearing of the revision and to make an endeavour to adjudicate upon the same with dispatch and alacrity without granting any unnecessary adjournment to either side. If for reasons not attributable to the revisionist the hearing of the revision is not concluded within a reasonable period of time the applicants shall have the liberty to again move an application before the court of revision seeking the stay of the trial and the court may thereupon pass appropriate orders on it in accordance with law as it deems proper. With the aforesaid observations this application is finally disposed off. ——————