Madari Singh @ Shiv Shankar Singh v. State Of U. P.
2021-03-04
VIKAS KUNVAR SRIVASTAV
body2021
DigiLaw.ai
JUDGMENT : Vikas Kunvar Srivastav,J. 1. The case is called out. 2. Learned counsel for the applicant, Sri Amit Tripathi, Advocate and learned A.G.A. for the State, Sri S.P. Tiwari, Advocate are present. 3. The present application under Section 482 Cr.P.C. is moved on behalf of the applicant to quash the entire proceeding of the Case No.261/2020, Case Crime No.127/2003 under Sections 307/34, 506 I.P.C., Police Station-Hasanganj, District-Unnao, the order dated 18.2.2021 passed by the learned court below i.e., Additional Chief Judicial Magistrate-II, Unnao by which the learned court below has wrongly issued the non-bailable warrant against the applicant, the order dated 4.11.2020 passed by learned court below in Case No.261/2020 under Section 307/34, 506 IPC, Police Station-Hasanganj, District-Unnao, the order dated 18.12.2020 passed by learned Session Court, Unnao in Criminal Revision No.63/2020 as well as the order dated 15.2.2021 passed by Session Judge, Unnao in Criminal Misc. Case No.134/2021 and compliance for the order dated 22.4.2019 passed by this Hon'ble Court in Criminal Misc. Case No. U/S 482 No.4261 of 2009. 4. In para-2 of the application, the applicant has himself discloses that earlier also in the same matter an application was filed before this Court under Section 482 Cr.P.C. The said para-2 is quoted hereunder:- "That it is further prayed that this Hon'ble court may kindly be passed a suitable order for compliance of the order dated 22.4.2019 passed by this Hon'ble court in Criminal Misc. case/under Section 482 No.4261 of 2009. The copy of the order dated 22/04/2019 passed by this Hon'ble court is being annexed herewith and marked as Annexure No.2 to this application." 5. The Annexure No.2 is the order of this Court dated 22.4.2019 in aforesaid application under Section 482 Cr.P.C., of which para-3 and 4, relevant for the purpose of the present application are quoted hereunder:- "3. Learned counsel for the petitioners submits that he would like to file an application for discharge under the provisions of Cr.P.C., to which learned counsel for the State, does not have any objection. 4. Accordingly, the petitioners are granted liberty to file an application in conformity with the provisions of Cr.P.C., within a period of two weeks from today. After the said application is filed, learned trial Court is directed to dispose of the same within a period of thirty days thereafter. The petitioners are also granted liberty to appear through his counsel.
4. Accordingly, the petitioners are granted liberty to file an application in conformity with the provisions of Cr.P.C., within a period of two weeks from today. After the said application is filed, learned trial Court is directed to dispose of the same within a period of thirty days thereafter. The petitioners are also granted liberty to appear through his counsel. Till expiry of the aforesaid period, no coercive steps shall be taken against them." 6. Pursuant to the order of the Court as to the liberty to move application for discharge before the trial court, was sought to be availed by the applicants. They moved an application on 6.5.2019 before the court of Judicial Magistrate, Unnao through counsel, wherein the case was pending. In view of the order dated 22.4.2019 of this Court, the applicants were given protection from coercive action for 30 days from the date of order. The said application was rejected by the court of Magistrate on 4.11.2020 which is made Annexure No.9 to the present application on the ground that the applicants have been summoned under Sections 307/34, 506 I.P.C. which is judicially triable by the Sessions Court, as such, he has no jurisdiction to decide the discharge application. 7. Against the said order, applicants preferred a revision which was finally decided on 18.12.2020 on the ground that learned court below is looking after the case as a complaint case and as the matter pertains to warrant cases which are triable by the court of sessions, as such, he has no jurisdiction to decide the discharge application and the order suffers no vice. 8. Another application was moved by the applicants for their discharge, according to aforesaid order of revisional court under section 227 of the Cr.P.C. before the Session court. Learned court of Sessions dismissed the application on 15.2.2021 on the simple ground that case is not yet committed to court of Sessions by the Magistrate. 9. Learned counsel for the complainant, Sri Y.S. Srivastava, Advocate appearing with Vakalatnama executed in his favour by the complainant, the same is taken on record. Office is directed to get it registered and duly place on record. 10.
9. Learned counsel for the complainant, Sri Y.S. Srivastava, Advocate appearing with Vakalatnama executed in his favour by the complainant, the same is taken on record. Office is directed to get it registered and duly place on record. 10. Learned counsel for the complainant argued as to the maintainability of the application under Section 482 Cr.P.C. before the Court on the ground that the same is misconceived and the sole purpose of moving the application is to stifle the bonafide proceeding of the court below in case crime no.127/2003, under Sections 307/34 and 506 I.P.C. Learned counsel further drew attention towards that fact that earlier vide order dated 22.4.2019, the accused-applicants were given protection of 30 days with liberty to move application for their discharge before the trial court and their application from both the courts below was rejected, as such, they are not entitled to any further protection from the process of the Court. 11. Heard learned counsel for the applicant, learned counsel for the complainant, learned A.G.A. and perused the materials placed on record. 12. The High Court under the Code of Criminal Procedure, 1973 is vested with inherent power under Section 482 Cr.P.C., which shall not be deemed to be limited or affected by any other provisions of the Code itself, to make such order as may be necessary to give affect to any order of this Court or to protect abuse of process of any court or otherwise to secure the ends of justice. 13. While dealing with the application for discharge, moved by the applicants, before the court of Magistrate, the impugned order, passed on the application by the Magistrate dated 4.11.2020 pursuant to the order of this Court dated 22.4.2019 in an application under Section 482 Cr.P.C. of the applicants itself discloses that the Magistrate was well conversant and known to its jurisdiction that, the matter pending before it, wherein application for discharge was moved from the offences under Sections 307/34, 506 I.P.C. are not triable by it and exclusively triable by the court of Sessions, then also, without having jurisdiction, decided the application.
When the order was challenged into revision, the court of Sessions, though observed in its order dated 18.12.2020 that, in order of the High Court under Section 482 Cr.P.C. the direction to dispose of the "Discharge application" was to the trial court, then also, the court of Sessions dealing with the revision kicked back the matter to the court of Magistrate again. The court of Magistrate, who was sitting over the matter, despite taking cognizance of offences, finding them exclusively triable by the court of Sessions, did not commit the matter to the court of Sessions. 14. Section 204 of the Code of Criminal Procedure, 1973 provides, if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he has to issue process in due course. In the present case also the Magistrate issued the process accordingly. In response whereof, the accused-applicants moved an application before the High Court under Section 482 Cr.P.C. and by virtue of order dated 22.4.2019, the accused-applicants put their appearance before the Court of Magistrate through counsel alongwith the application for their discharge. The Magistrate was required to ensure the compliance of order of the Court in letter and spirit, with regard to hearing on discharge application and was not expected to be technical in dismissing the application itself on the ground of lack of jurisdiction. The court of Magistrate was duty bound to honour the order of the Court by committing the case to the court of Sessions alongwith the application making compliance of Section 207 of the Cr.P.C. so that obedience and compliance of the High Court's order could be ensured. Learned court of revision was also required to call for administratively the concerned Magistrate, why he is not passing the order of committal of the proceeding than to sit over the application for discharge without having jurisdiction for disposing the same. The court of revision / court of sessions also burdened with duty to ensure the compliance of High Court's order with regard to hearing and disposal of the application for discharge through counsel. Both the courts below fell into doing technical disposal than to ensure imparting justice in view of the High Court's order. 15.
The court of revision / court of sessions also burdened with duty to ensure the compliance of High Court's order with regard to hearing and disposal of the application for discharge through counsel. Both the courts below fell into doing technical disposal than to ensure imparting justice in view of the High Court's order. 15. The present application moved by the accused-applicant is, thus, maintainable to enforce the earlier order of this Court dated 22.4.2019 so as to prevent the abuse of process of the Court as the court of Magistrate after rejection of revision has issued Non-bailable Warrant against the accused-applicants. 16. In exercise of it's inherent power, the Court deems fit in the circumstances of the case to issue suo moto direction to the Court of Magistrate under Section 483 Cr.P.C. to commit the Case Crime No.127/2003 under Section 307/34, 506 I.P.C., Police Station-Hasanganj, District -Unnao forthwith without any further delay, complying the requirements under Section 207 Cr.P.C. alongwith the application of the accused applicants moved for the purpose of their discharge. 17. The accused-applicants are directed to appear through counsel before the Court of Sessions on 15.3.2021 and they are at liberty to renew their prayer for discharge from offences through a fresh application before the Sessions Court (trial court). 18. The Non-bailable warrant issued by the Court of Magistrate in Case No.261/2020, Case Crime No.127/2003 under Sections 307/34, 506 I.P.C., Police Station-Hasanganj, District-Unnao shall remain in abeyance till then. 19. The present application under Section 482 Cr.P.C. is finally disposed of, accordingly. 20. The Deputy Registrar (Criminal) is directed to communicate the order promptly, in addition to normal course of communication as prescribed in the rules of the court through e-mail also, to the Sessions Court and also to the Court of Magistrate for compliance. The compliance report be ensured to place before the court.