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2018 DIGILAW 1767 (ALL)

MUNAVWAR v. STATE OF U. P.

2018-08-10

RAJEEV MISRA

body2018
JUDGMENT Hon’ble Rajeev Misra, J.—Heard Sri Mukhtar Alam, learned counsel for the applicant, the learned A.G.A. for the State and Sri K.N. Shukla, learned counsel for the opposite party No. 2. 2. This application under Section 482 Cr.P.C. has been filed challenging the order dated 3rd May, 2018 passed by the Additional Chief Judicial Magistrate/Civil Judge (Senior Division), Mau in Complaint Case No. 19 of 2018 (Sabira Khatoon v. Munnauwar Ali) arising out of Case Crime No. 254 of 2013, under Sections 354, 376, 506 I.P.C., Police Station Mohammadabad Gohna, District Mau as well as the entire proceedings of the above mentioned complaint case. The applicant has also challenged the order dated 3rd July, 2018 passed by the Additional Chief Judicial Magistrate/Judicial Magistrate, whereby the Non-Bailable Warrant has been issued against the applicant. 3. From the record, it appears that initially a First Information Report dated 29th June, 2013 (Annexure-2 to the affidavit filed in support of the present application) was lodged by the opposite party No. 2 against the applicant, which was registered as Case Crime No. 254 of 2013 under Sections 354, 376, 506 I.P.C., Police Station Mohammadabad Gohna, District Mau. Upon completion of the statutory investigation, in terms of Chapter XII Cr.P.C., the police submitted the final report No. 77 of 2013 dated 1st December, 2013. The first informant i.e. the opposite party No. 2 herein filed a protest petition against the final report, which came to be allowed by the Magistrate vide order dated 28th April, 2016. By means of the order dated 25th April, 2016, the protest petition filed by the first informant was allowed and it was directed that the protest petition filed by the opposite party No. 2 shall be treated as complaint and proceeded with as a complaint case. After taking the evidence of the complainant in terms of Section 200 Cr.P.C. and that of his witnesses in terms of Section 202 Cr.P.C., the Magistrate summoned the applicant vide summoning order dated 12th April, 2018. Aggrieved by the summoning order dated 12th April, 2018, the applicant preferred a Criminal Revision before the District and Sessions Judge, Mau, which was registered as Criminal Revision No. 54 of 2018 (Munnawar Ali v. State of U.P. and another). The said criminal revision is said to be pending. Aggrieved by the summoning order dated 12th April, 2018, the applicant preferred a Criminal Revision before the District and Sessions Judge, Mau, which was registered as Criminal Revision No. 54 of 2018 (Munnawar Ali v. State of U.P. and another). The said criminal revision is said to be pending. During the pendency of the said criminal revision the applicant filed an application dated 3rd May, 2018 before the Magistrate praying therein that since the applicant has already been enlarged on bail, therefore, the bail of the applicant be extended on the same sureties and on the same bail bonds. This application of the applicant came to be rejected by the Magistrate by means of the order dated 3rd May, 2018. The Magistrate subsequently issued Non-Bailable Warrant against the applicant vide order dated 3rd July, 2018. 4. Learned counsel for the applicant invited the attention of the Court to the judgment of the Apex Court in the case of Mool Chand Yadav and another v. Raza Buland Sugar Company, (1982) 3 SCC 48, wherein the Apex Court has held that if the consequences are serious, then during the pendency of the appeal/revision the Court should not permit a swinging pendulum to take place. 5. Paragraph-3 of the aforesaid judgment of the Apex Court is relevant for the controversy in hand and is reproduced here-under: “3. We heard Mr. S.N. Kacker, learned Counsel for the appellants, and the respondents appeared by Caveat through Mr. Manoj Swarup, Advocate. We are not inclined to examine any contention on merits at present, but we would like to notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the F. A.F.O. is allowed, obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand would have to vacate the room and handover the possession to the respondents in obedience to the Court’s order. We are in full agreement with Mr. Manoj Swarup, learned advocate for respondents, that the Court’s order cannot be flouted and even a covert disrespect to Court’s order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal, Mr. We are in full agreement with Mr. Manoj Swarup, learned advocate for respondents, that the Court’s order cannot be flouted and even a covert disrespect to Court’s order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal, Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the” Court’s order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the order dated 6th August 1982 directing the appellants to handover the possession of the room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad. Mr. Manoj Swarup requests that both the earlier and later Appeals should be heard together as early as possible, We order accordingly and request the High Court if it considers proper in its own discretion to hear both the appeals as expeditiously as possible in order to avoid the continuance of the boiling situation. The appeal stands disposed of. There shall be no order as to costs.” 6. Considering the observations made by the Apex Court in the case of Mool Chand Yadav (Supra), this Court is of the considered opinion that interest of justice shall be served, in case the execution of the Non-Bailable Warrant issued against the applicant is stayed till the disposal of Criminal Revision No. 54 of 2018 (Munnawar Ali v. State of U.P. and another) pending bfore the District and Sessions Judge, Mau. 7. Accordingly, it is provided that the execution of the Non-Bailable Warrant issued by the Court below against the applicant shall remain stayed till the disposal of the Criminal Revision No. 54 of 2018 (Munnawar Ali v. State of U.P. and another) pending in the Court of the District and Sessions Judge, Mau. 8. 7. Accordingly, it is provided that the execution of the Non-Bailable Warrant issued by the Court below against the applicant shall remain stayed till the disposal of the Criminal Revision No. 54 of 2018 (Munnawar Ali v. State of U.P. and another) pending in the Court of the District and Sessions Judge, Mau. 8. The prayer made with regard to the validity of the order dated 3rd May, 2018 passed by the Magistrate, whereby the application of the applicant dated 3rd May,2018 has been rejected, is left open to be challenged in case the necessity to challenge the same arises subsequent to the order passed by the revisional Court. 9. With the aforesaid direction, the present application stands finally disposed of.