High Court
Case Details
Neutral Citation No. - 2024:AHC:108309 Court No. - 74 Case :- APPLICATION U/S 482 No. - 5310 of 2024 Applicant :- Ragib And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- M J Akhtar,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
1. The present criminal proceedings are arising out of an occurrence took place way back in the year 2005. It appears that on said occurrence a criminal proceedings was initiated against accused persons by way of filing an FIR wherein a charge-sheet was filed and later on trial was concluded and acquittal was granted by a judgment and order dated 15.05.2009 for offence under Section 302/34 I.P.C. 2. At initial stage, simultaneously, the complainant has filed a criminal complaint for the same occurrence, only against applicants wherein learned Trial Court after considering the statements recorded under Sections 200 and 202 Cr.P.C., has summoned the applicants for facing trial for offence under Sections 452, 302 I.P.C. by an order dated 02.06.2007, which is reproduced hereinafter :- " 2-6-2007- पप्रारररयप्रा कके वविदप्रान अरधिविकप्रा कको बहस तलबबी पर ससुनप्रा जप्रा चसुकप्रा हहै। ममनके पररविप्राद पत, पप्रारररयप्रा कसु ० शबनम कप्रा बयप्रान धिप्रारप्रा 200 एविवं सबी०डब्ललू०-1 अजमल वि सबी०डब्ललू०-2 जप्रावहद सबी०डब्ललू०-3 डप्रा०बबी०एस० चचौधिरबी कके बयप्रान धिप्रारप्रा 202 दवं०प०सवं० एविवं पकोस्टमप्राटरम ररपकोटर ममृतकप्रा अन्तररफप्रा ककी फकोटको पवत एविवं सवंलग्न अन्य पपतत्रों कप्रा अविलकोकन वकयप्रा। उक समस्त पपतत्रों कके आधिप्रार पर अवभियसुकगण मसुमतप्राज, मसुनबीर वि रप्रावगब कके वविरुद्ध धिप्रारप्रा- 452,302 भिप्रा०दवं०सवं० कप्रा अपरप्राधि परम दृष्टयप्रा बननप्रा पवत हकोतप्रा हहै। अततः अवभियसुकगण उक अपरप्राधि कके रलए तलब वकयके जप्रानके यकोग्य हहै। आदकेश अवभियसुकगण मसुमतप्राज, मसुनबीर वि रप्रावगब कको अपरप्राधि धिप्रारप्रा-452,302 भिप्रा०दवं०सवं० कके रलए जररयके सम्मन वदनप्रावंक 10.7.2007 कके रलयके तलब वकयप्रा जप्रायके। पहैरविबी ककी जप्रायके।" 3. Sri V.M. Zaidi, learned Senior Counsel assisted by Sri M.J. Akhtar, learned counsel for applicants fairly submits that the aforesaid order and criminal proceedings were challenged at the instance of applicants by way of filing application under Section 482 bearing No.13727 of 2007, which was finally disposed of by an order dated 25.10.2018, whereby the said application was rejected and summoning order was confirmed. Interim order was also vacated and applicants were granted time to appear and an order was passed that no coercive measures were taken against them for a certain period. The relevant part thereof is reproduced hereinafter :- "A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicant arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. The prayer for quashing the same is refused as I do not see any abuse of the Court's process either. The interim order, if any, is vacated. However, in view of the peculiar facts and circumstances of the case, it is directed that in case after surrendering in the court below an application for bail is moved on behalf of the accused within two weeks from today, the same shall be considered and decided in accordance with law. In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to. It is clarified that 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.
Decision
With the aforesaid observations this application is finally disposed off. Office is directed to communicate this order forthwith to the lower court concerned. " 4. Learned Senior Counsel submits that the said order was an ex-parte order since the Advocate appearing on behalf of applicants i.e. Sri D.K. Diwan has unfortunately died before the aforesaid order was passed as such none appears on behalf of applicants. Learned Senior Counsel fairly submits that said order was not challenged before the Supreme Court. Learned Senior Counsel refers few paragraphs of application that applicants were not aware about the aforesaid order as well as the trial was also not proceeding in complaint case and no coercive measures were communicated or served upon the applicants. 5. At belated stage, now, in the year 2024 i.e. after six years, applicants have again approached this Court with prayer to quash the complaint dated 12.01.2006 and entire proceedings. Peculiarly, they have not challenged the summoning order since challenge to it has also been rejected as referred above. 6. Learned Senior Counsel further submits that another attempt to summon applicants at behest of complainant by way of filing an application under Section 319 Cr.P.C. in session trial was already rejected by an order dated 22.09.2008 which was never challenged and later on the accused therein, in the session trial have already been granted acquittal and according to his instruction no appeal was filed either at behest of State or complainant. 7. Learned Senior Counsel further submits that these are the subsequent events which are substantial and could be sufficient to warrant exercise of inherent power by this Court to quash the entire proceedings since the outcome of further proceedings will have no legal consequence and it will be only an abuse of process of law. He also refers the relevant procedure of Criminal Procedure Code that on basis of same occurrence there is complaint case and a case instituted on police report also then both would be if run together, however, the said process was not followed, and, therefore, proceeding arising out of complaint case in view of subsequent events has become render abuse of process of law. 8. The aforesaid submissions are opposed by Sri D.P.S. Chauhan, learned A.G.A. for State and he assisted the Court on legal issue that since challenge to summoning order has already been rejected, therefore, further proceeding cannot be quashed only on basis of subsequent event as referred above. 9. I have considered the submissions and perused the material on record. It is not under the dispute that summoning order was already rejected by a detailed order passed by the co-ordinate Bench, which has not been challenged further. 10. Learned Senior Counsel wants to consider this Court the subsequent events that a session trial arising out of same occurrence has resulted into the acquittal of accused named therein. An attempt of complainant to prosecute the applicants by way of filing an application under Section 319 Cr.P.C. in session trial was failed as well as that after summoning order, no further proceeding is being undertaken in complaint case and as such according to learned Senior Counsel the proceedings of complaint case became abuse of process of law. 11. I do not find any merit in the argument of learned Senior Counsel essentially that the attempt to invoke the inherent power by way of challenging the summoning order, has already been failed. Only on ground that present complaint case is not proceeding, will not be sufficient to invoke inherent power as well as acquittal in session trial of other accused may not have any bearing in present case. 12. At this stage, learned Senior Counsel submits that applicants will appear before learned Trial Court and file an application under Sections 244 or 245 (2) Cr.P.C. as advised, to point out the subsequent events took place before the learned Court and prays that bail application and subsequent application if filed be decided expeditiously. 13. Learned A.G.A. for State has no objection if such prayer be considered. 14. In the aforesaid circumstances, while rejecting prayer made in this application, at this stage, it is observed that in case applicants appear before learned Trial Court within period of 4 weeks from today, and file a bail application, the learned Trial Court will consider it in accordance with law, taking note that initially an interim order was passed against applicants in earlier proceedings and there was an interim protection even after application was rejected and thereafter, in case, any application is filed under the aforesaid referred provisions under Section 244 or 245(2) Cr.P.C., the same may be considered in accordance with law, after hearing both parties. 15. It is observed that any observation of this Court in this order may not influence the learned Trial Court to take appropriate decision in application if filed under Section 244 or 245 (2) Cr.P.C. 16. Accordingly, this application is disposed of with aforesaid observation. Order Date :- 4.7.2024 P. Pandey