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Allahabad High Court · body

2016 DIGILAW 434 (ALL)

PAWAN KUMAR PANDEY v. STATE OF U. P.

2016-02-04

RAMESH SINHA

body2016
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri B.B.Paul, learned counsel for the revisionist and Sri Nitin Srivastava, learned AGA for the State. 2. The present crl. revision has been preferred against the judgment and order dated 22.1.2016 passed in Case No. 3191 of 2011 in re : State v. Pawan Kumar Pandey, arising out of Case Crime No. 362 of 2007, under Sections 147, 148, 149, 302 I.P.C., P.S. Soraon, District Allahabad. 3. Brief facts of the case are that a First Information Report was registered against unknown persons by Anjanu Kumar Patel on 6.10.2007 with respect to an incident alleged to be taken place on 5.10.2007 wherein two persons Pawan Kumar and his wife Smt. Pushpa Devi was done to death by unknown miscreants. The said case was registered as Case Crime No. 362 of 2007 under Sections 147, 148, 149, 302 I.P.C., P.S. Soraon, District Allahabad. The name of the revisionist appears to have come into light during the course of investigation and he come to know his involvement in the present case and surrendered on 18.1.2008 and was sent to jail in the present case. A final report was submitted by the Investigation Officer of S.I.S., Allahabad on 5.2.2008 and submitted a police report under Section 169 Cr.P.C. with recommendation that the revisionist be released on bail in the light of police report submitted under Section 169 Cr.P.C. The said report was submitted to the C.J.M., Allahabad and in pursuance of the same, C.J.M., Allahabad vide order dated 6.2.2008 released the revisionist on bail on his personal bond of Rs. 20,000/- and two sureties of like amount subject to the condition that if any evidence collected by the prosecution in future, he would surrender in the Court. The revisionist was released thereafter in pursuance of the order of the Magistrate passed on 6.2.2008. It appears from the record that the matter was transferred to C.B.C.I.D. which investigated the case and submitted the charge-sheet against the revisionist and two other persons, namely, Mallu Pasi and Munna Yadav on 11.11.2011 in the Court of Special C.J.M., Allahabad which was registered as Case No. 3191 of 2011 (State v. Pawan Kumar Patel and others) under Sections 147, 148, 149, 302 I.P.C., P.S. Soraon, District Allahabad on 5.12.2014. The learned Magistrate passed an order directing the revisionist to surrender before the Court in view of the charge-sheet being submitted against him on 11.11.2011 and to obtain regular bail as he was granted bail in view of provision under Section 169 Cr.P.C. An application moved by C.B.C.I.D before the C.J.M. for committing the case to the Court of Session as the case has not been committed to the Court of Session and is pending for committal proceeding because of the fact that the revisionist was released on 6.2.2008 in view of the police report submitted under Section 169 Cr.P.C. but the charge-sheet has been submitted against him on 11.11.2011 against him and co-accused for the offences in question and till date the revisionist has not obtained regular bail. Hence, the committal proceeding are being delayed. Hence, C.B.C.I.D. prayed that the order dated 5.2.2008 passed by the Magistrate be complied with. The revisionist challenged the charge-sheet of the present case before this Court in 482 Cr.P.C. Application No. 1335 of 2014 which was dismissed by this Court on 16.1.2014. He again moved Criminal Misc. Application No. 3830 of 2015 which was also dismissed on 25.2.2015 by which the order of the Magistrate dated 5.12.2014 was affirmed by this Court. The revisionist, thereafter, has again moved an application before the C.J.M., Allahabad on 24.4.2015 for recalling the ex parte order dated 5.12.2014 through his counsel and the same has been rejected by the impugned order dated 22.1.2016 directing him once again giving him opportunity to appear and file regular bail in the case without any further delay and has fixed 2.2.2015 as next date. Hence, the present application for quashing the impugned order dated 22.1.2016 passed by this Court on the ground that the said order was beyond the scope of Section 209 Cr.P.C. 4. It has been argued by the learned counsel for the revisionist that since once the revisionist has already been released on bail. He is not require to surrender and file fresh bail bond or to first come in jail in view of decision of this Court in the Case of Gyan Swroop Gupta v. State of U.P., 1993 U.P. Criminal Rulings 427-433. He further argued that the Magistrate ought to have committed the Court of Sessions without procuring physical appearance of the revisionist and pressed his application dated 24.4.2015 for recalling the order dated 5.12.2014. He further argued that the Magistrate ought to have committed the Court of Sessions without procuring physical appearance of the revisionist and pressed his application dated 24.4.2015 for recalling the order dated 5.12.2014. He argued that the prosecution did not filed any objection to the said application and the learned Magistrate rejected the same by passing the impugned order which was beyond the scope of Section 209 Cr.P.C. and further directed the revisionist to obtain regular bail. He further submitted that in passing the impugned order, learned Magistrate has omitted to notice and judicially consider the recall application and scope of Section 209 Cr.P.C. which stipulates a Magistrate to commit case to the Court of Session and the same has occasioned substantial failure and miscarriage of justice of the revisionist. He further argued that the revisionist having being released on bail on 6.2.2008 and the same having not been abused by the revisionist in any manner and on 11.11.2011 the prosecution having submitted charge-sheet it was obligatory on the learned Magistrate to commit the case to the Court of Session as stipulated under Section 209 Cr.P.C, but curiously enough in passing the impugned order dated 22.1.2016 and the orders proceedings the same, learned Magistrate has omitted to notice and consider the aforesaid material aspects the case which has occasioned substantial failure and miscarriage of justice to the revisionist. He further argued that after submission of charge-sheet dated 11.11.2011 revisionist regularly appearing before the learned Magistrate and since case under Section 302 I.P.C. is triable by the Court of Session, even in the absence of the applicant learned Magistrate ought to have committed the case to the Court of Session without entering into nature of bail granted to the applicant in view of judicial Pronouncements noted hereunder : (1) Kamlesh Kumar Dixit v. State, 1981 ACC 239, decided by Hon’ble Mr. Justice P.N. Goel. (2) Pushpendra Singh v. Jail Superintendent Nainital, 1984 ACC (21) 245 (DB). (3) Muneshwar v. State, 1984 ACC (21) 368 (FB). (4) Smt. Sita Kumari v. Lalit Kumar, 1990 ACC (27) 515. 5. Hence, the impugned order is illegal and should be set aside. 6. Justice P.N. Goel. (2) Pushpendra Singh v. Jail Superintendent Nainital, 1984 ACC (21) 245 (DB). (3) Muneshwar v. State, 1984 ACC (21) 368 (FB). (4) Smt. Sita Kumari v. Lalit Kumar, 1990 ACC (27) 515. 5. Hence, the impugned order is illegal and should be set aside. 6. Learned AGA on the other hand opposed the prayer for quashing of the impugned order and submitted that the revisionist was granted bail in view of police report under Section 169 Cr.P.C. subject to condition that if any evidence comes against him in future then he would surrender and obtain regular bail as is evident from the order dated 6.2.2008 passed by the Magistrate and when the charge-sheet was submitted against the revisionist on 11.11.2011 then the revisionist did not obtain regular bail and though he has been appearing before the Magistrate. He further argued that the order dated 5.12.2014 passed by the learned Magistrate was challenged by the revisionist in Criminal Misc. Application No. 3880 of 2015 which was dismissed by this Court on 23.2.2015 and the said order being affirmed by this Court in the said 482 Cr.P.C. application there was no occasion for the revisionist to move again application on 24.4.2015 for recalling the said order passed by the Magistrate on the ground that it was beyond the scope of Section 209 Cr.P.C. He submitted that the case laws which has been cited by learned counsel for the revisionist is also distinguishable from the facts and circumstances of the present case. 7. After having considered the submissions advanced by learned counsel for the parties that it is admitted fact that the revisionist was released on bail by the Magistrate on 6.2.2008 on the basis of police report under Section 169 Cr.P.C. before the Court and the learned Magistrate on 6.2.2008 ordered releasing the revisionist on personal bond and two sureties of like amount subject to condition that the revisionist would obtain regular bail if any evidence comes against him in future The charge-sheet was submitted by the C.B.C.I.D. on 11.11.2011 against the revisionist and two accused persons and the learned Magistrate has taken cognizance against the revisionist and on the application of the C.B.C.I.D. moved before the Magistrate after the submission of the charge-sheet pointed out that the revisionist has not obtained regular bail. The learned Magistrate passed an order on 5.12.2014 for directing the revisionist to surrender before the Court and obtain regular bail as his bail was a condition one, in view of police report submitted under Section 169 Cr.P.C.. 8. The revisionist further challenged the charge-sheet of the case before this Court Application under Section 482 No. 1335 of 2014 which was dismissed on 16.1.2014. Further he being aggrieved by the order 5.12.2014 passed by Special C.J.M., Allahabad, again preferred Application under Section 482 No. 3880 of 2014 which too was dismissed on 25.2.2015 by this Court affirming the order of the Magistrate dated 5.12.2014 calling upon the revisionist to surrender and obtain regular bail but he did obtain bail from the competent Court and was appearing before the learned Magistrate as has been evident from the order sheet. As the order dated 5.12.2014 has been upheld by this Court vide order dated 25.2.2015 passed by the Magistrate, hence, the application moved by the revisionist on 24.4.2015 for recalling the order dated 5.12.2014 on the ground that it is beyond the scope of 209 Cr.P.C. is not at all maintainable and it was rightly rejected by the Magistrate by passing the impugned order as the Magistrate had not power to recall the said order after the order dated 5.12.2014 passed by the Magistrate having been affirmed by this Court vide order dated 25.2.2015 and order of this Court not being challenged by the revisionist before any superior Court. It transpires that it is a case of double murder and the case pertains to the year October, 2007 when the incident has taken place and the committal of proceeding is being lingered on by the revisionist on this ground whereas it appears that two other co-accused are on bail has obtained bail on regular Court on 18.3.2011. 9. Thus, in my opinion, the impugned order is based upon relevant consideration and supported by cogent reason, the same does not suffer from any irregularity, illegality or jurisdictional error, hence, no interference is required by this Court. The prayer for quashing the impugned order order is refused. 10. 9. Thus, in my opinion, the impugned order is based upon relevant consideration and supported by cogent reason, the same does not suffer from any irregularity, illegality or jurisdictional error, hence, no interference is required by this Court. The prayer for quashing the impugned order order is refused. 10. The revisionist is directed to appear before the Magistrate concerned within two weeks from today and obtain regular bail from the competent Court failing which the Special C.J.M., Allahabad shall take coercive action against the revisionist in accordance law ensuring his presence before the Court and committed the case to the Court of Sessions forthwith within a week, thereafter. 11. After committal of the said case by the Magistrate the trial Court is directed to expedite the trial and conclude the same preferably within eight months in view of the provisions of Section 309 Cr.P.C. from the date of receipt of record from the Court of Special C.J.M., Allahabad after committal proceedings. 12. With the aforesaid directions, the present revision is disposed of. 13. The Registrar General of this Court is directed to send the certified copy of this order to District Judge, Allahabad forthwith for its compliance.