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Allahabad High Court · body

2018 DIGILAW 635 (ALL)

SANJEEV @ ROBY v. STATE OF U. P.

2018-03-16

VIJAY LAKSHMI

body2018
JUDGMENT : By means of this Criminal Appeal filed under section 449 of Cr.P.C., the appellants have challenged two orders. The first order is dated 17.2.2018 and the second is dated 6.3.2018, both passed by learned Additional Sessions Judge, Court No. 3, Aligarh, in S. T. No. 109 of 2003, State Vs. Sanjeev @ Roby and others, arising out of Case Crime No. 307 of 2002, u/s 302 I.P.C., P.S. Gandhipark, District Aligarh, whereby the learned trial court has rejected the applications moved by the appellants and has allowed the applications moved by the prosecution. 2. Heard learned counsel for the appellants and learned AGA. Perused the record. 3. The relevant facts in brief are that an application numbered as 585 Kha was moved by the appellants before the learned trial court with prayer to not to take any further coercive step in pursuance of N.B.W. issued against them on the ground that the appellant no. 1 Sanjeev was unable to come to court due to sustaining gunshot injury and appellant no. 2, Yogesh, due to illness was also unable to attend the court. The trial court vide impugned order dated 17.2.2018 rejected the application 585 Kha. On the other hand, it allowed the application moved by the complainant, forfeited the personal bonds and surety bonds of the appellants and issued notices u/s 446 Cr.P.C. to the sureties. Issuing NBW against the appellants, the learned trial court also fixed the date for their personal appearance by the same order. 4. The second order challenged in this appeal is the order dated 6.3.2018 whereby the learned court below has rejected the application numbered as 592 Kha moved by the appellants with prayer to grant them fifteen days time and meanwhile not to take any coercive action against them. Vide the same impugned order dated 6.3.2018, the learned court below has allowed the application numbered as 591 Kha moved by the complainant with prayer to initiate proceedings under section 83 Cr.P.C. against the appellants. 5. Learned counsel for the appellants has contended that the appellant no. 1 had received fire arm injury on 14.1.2018, therefore, he could not attend the court on 5.2.2018. He had moved an exemption application before the trial court but the trial court issued NBW against him, ignoring even the medical certificate. 5. Learned counsel for the appellants has contended that the appellant no. 1 had received fire arm injury on 14.1.2018, therefore, he could not attend the court on 5.2.2018. He had moved an exemption application before the trial court but the trial court issued NBW against him, ignoring even the medical certificate. Later, on 17.2.2018 the appellants once again sought exemption from personal appearance on the basis of medical certificate of appellant no. 1, but the learned trial court rejected their application, issued NBW against the appellants and notice u/s 446 Cr.P.C. to their sureties. Thereafter on 26.2.1018 on the application of prosecution, the learned trial court issued proclamation u/s 82 Cr.P.C. in an arbitrary manner and on 6.3.2018 proceedings u/s 83 Cr.P.C. were initiated against the appellants. Learned counsel for the appellants has further contended that the co-accused Raghvendra Singh filed a transfer application before the learned Sessions Judge but the learned trial court, without considering all the aforesaid facts, rejected their application, forfeited their personal bonds and surety bonds and initiated proceedings u/s 82 and 83 Cr.P.C.against them. 6. On the aforesaid grounds, it has been prayed that both the impugned orders be set aside and the appeal be allowed. 7. Per contra, learned AGA has vehemently opposed the appeal challenging the order dated 6.3.2018 by contending that the appeal against the aforesaid order being not maintainable, is liable to be dismissed at the admission stage itself. Learned AGA has further contended that the appellants were absconding since long and were not cooperating in disposal of the sessions trial, pending since the year 2003. The occurrence was of the year 2002, but the appellants were continuously adopting delaying tactics. As a result, despite a direction of this court being issued as far as back in the year 2006 for expeditious disposal of the case, the trial could not be concluded. 8. Considered the rival submissions advanced by learned counsel for the parties. 9. In so far as the impugned order dated 6.3.2018 is concerned, learned trial court has rightly rejected the application 592 Kha moved by the appellants on the ground that the prayer for adjournment has been made by the appellants for the reason that some petition filed by them is pending before the High court. 9. In so far as the impugned order dated 6.3.2018 is concerned, learned trial court has rightly rejected the application 592 Kha moved by the appellants on the ground that the prayer for adjournment has been made by the appellants for the reason that some petition filed by them is pending before the High court. But neither the number of the petition was mentioned by the appellants on the application 592 Kha nor other particulars were mentioned. In the aforesaid circumstances the court below found the application 592 Kha vague and misleading and rightly rejected it. 10. Moreso, a perusal of the aforesaid order dated 6.3.2018 clearly shows that the court below has mentioned the conduct of the appellants showing as to how they continuously adopted delaying tactics and despite several efforts and coercive steps taken by the learned trial court, they did not appear before it. The court below has observed that a long time of 12 years has passed since the direction issued by the High Court for expeditious disposal of this case but due to the delay caused by all the accused persons, it could not be concluded. 11. The prosecution had also moved an application 591 Kha with prayer to initiate proceedings u/s 83 Cr.P.C. against the appellants, which was allowed by learned trial court and the proceedings u/s 83 Cr.P.C. were initiated against the appellants. The operative portion of the order dated 6.3.2018 clearly shows that by this order, only the proceedings u/s 83 Cr.P.C. have been issued against the appellants. 12. As per settled legal position, no appeal lies u/s 449 Cr.P.C. against an order initiating proceedings u/s 83 Cr.P.C., therefore, the appeal in respect of the order dated 6.3.2018 is liable to be dismissed on the ground of maintainability itself. Even otherwise also, there does not appear any illegality or irregularity in the order dated 6.3.2018, which is a detailed and well-reasoned order requiring no interference by this court. 13. Even otherwise also, there does not appear any illegality or irregularity in the order dated 6.3.2018, which is a detailed and well-reasoned order requiring no interference by this court. 13. In so far as the impugned order dated 17.2.2018 is concerned, as the personal bonds of the appellants have also been forfeited by this order, the appeal against it is maintainable u/s 449 Cr.P.C. However, in view of the facts and circumstances, this court is of the considered view that the application 585 Kha moved by the appellants has rightly been rejected by the learned trial court vide order dated 17.2.2018 and no interference is required by this court in the aforesaid order also. The reasons are as follows:- 14. A perusal of the record shows that out of the two appellants, only one namely Sanjeev had sustained a single firearm injury and that too in his right forearm. The injury report is dated 16.1.2018. Thus, it is also evident that on 17.2.2018, a period of one month had already expired, since sustaining of injury by appellant Sanjeev. Therefore, it cannot be said that the appellant Sanjeev was not in a position to come to the court to attend the proceedings on 17.2.2018. 15. With regard to the appellant Yogesh, the record shows that although in the application 585 Kha, it was stated that due to illness he was unable to appear before the court, but no medical certificate or even any prescription was attached with his exemption application. Therefore, the court below rightly rejected the exemption application filed by the appellants and rightly forfeited their personal bonds and surety bonds by the order dated 17.2.2018. 16. In view of the above discussion, the appeal appears to be totally meritless. It is liable to be dismissed at the admission stage itself and is accordingly dismissed.