Umar Mahmood Khan v. State Of U.P. Thru. Prin. Secy. Home Lko. And Another

1. Heard Syed Husain Abbas, the learned counsel for the applicant, Sri Mayank Sinha, the learned AGA for the State, Sri Vijay Dixit, the learned counsel for the High Court of Judicature at Allahabad.

2. In furtherance of the order dated 27.11.2025, Sri Vijay Dixit, the learned counsel for the Hon'ble High Court of Judicature at Allahabad has obtained instructions in the matter and he has submitted that in furtherance of the FIR bearing Case Crime No. 358/2014, initially a charge sheet was submitted against three co-accused persons on

08.12.2014 and as rest of the accused persons could not be arrested, investigation against them continued. On 13.04.2015, charge sheet against three other co-accused persons was submitted and on 17.04.2015, another charge sheet against two co-accused persons was submitted.

3. Trial was held against the 8 charge sheeted accused persons, who were convicted by means of a judgment passed by the Additional Sessions Judge, Court No. 3, Gonda. During trial, accused persons Wasim Khan, Saddam Husain (the applicant), Sakir and Afsar Husain had been summoned for trial under Section 319 Cr.P.C. while investigation against them was still going on. On 25.09.2016, a charge sheet was submitted against these five co-accused persons including the applicant upon which, cognizance was taken by the learned Additional Chief Judicial Magistrate, 2 ABAIL No. 956 of 2025 Court No. 1 by means of an order dated 30.11.2016 and summons were issued for ensuring presence of the accused persons. Due to non presence of the additional accused persons, their matter could not be committed to the court of Session and their trial could not commence.

4. A copy of the written instructions is taken on record.

5. A Magistrate takes cognizance of an offence, not of the offender. Cognizance of the offence had already been taken upon submission of the first charge sheet dated 08.12.2014 and, therefore, there was no occasion for the learned Additional Chief Judicial Magistrate to again take cognizance of the same offence, of which cognizance had already been taken way back in the year 2014.

6. In these circumstances, the learned Magistrate had no jurisdiction to pass any order for summoning of the applicant in furtherance of the cognizance taken on 30.11.2016 when pursuant to the cognizance of the offence taken on 08.12.2014, the matter had already been committed to the court of session and trial had commenced there.

7. The applicant had already been summoned under Section 319 Cr.P.C. by means of an order dated 18.10.2016 and that summoning order has already been stayed by means of an order dated 07.12.2016 passed by a coordinate Bench in Criminal Revision No. 1131 of 2016. The petitioner's anticipatory bail application had been rejected by means of an order dated

09.09.2025 for the sole reason that the summoning order passed under Section 319 Cr.P.C. had been stayed by this Court and the stay order had not been brought to the notice of the court of Magistrate and, therefore, the Magistrate has not committed any illegality in issuing a non bailable warrant against him. In case this order is brought to the notice of the trial court, the trial court would not have passed any order in furtherance of the earlier order dated 18.10.2016.

8. After passing of the order dated 09.09.2025, its copy was filed before the Magistrate who declined to recall the non bailable warrant issued against the petitioner on the ground that it is mentioned in the order dated

09.09.2025 that the order be brought to the notice of the trial court which in the present case is the sessions court. 3 ABAIL No. 956 of 2025

9. The purport of the order dated 09.09.2025 was for bringing the order to the notice of the concerned court. In these circumstances, the learned Magistrate ought not to have refused to take note of the order dated

09.09.2025 passed by this Court. Even otherwise, any order passed by this Court has to be obeyed and respected in letter and spirit by all the courts. When the purport of the order dated 09.09.2025 passed by this Court in Anticipatory Bail Application No. 956 of 2025 was that the petitioner's summoning having been stayed, there is no occasion for his arrest, the learned Magistrate ought to have taken note of the order and recalled the non bailable warrant issued against the applicant.

10. In view of the forgoing discussion, this Court is of the considered view that as cognizance of the offence had already been taken on

06.01.2015 and the matter had been committed to the court by session where the trial commenced and the applicant and some other co-accused were summoned to face the trial under Section 319 Cr.P.C., there was no occasion for the learned Magistrate to again take cognizance of the same offence upon submission of the supplementary charge sheet. The Magistrate has issued non bailable warrant against the applicant due to his failure to appear before the Magistrate in furtherance of the summoning order issued consequent to passing of the successive cognizance orders, which is not permissible in law.

11. In the affidavit filed in support of the application, it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history. The applicant has undertaken to cooperate with the trial.

12. In these circumstances, I am of the considered view that the order dated 09.9.2025 deserves to be recalled and the applicant is entitled to be granted anticipatory bail in the present case.

13. Accordingly, the anticipatory bail application is allowed. In the event of arrest/ appearance of applicant-Saddam Husain @ Umar Mahmood Khan before the learned Trial Court in the aforesaid case crime, they shall be released on anticipatory bail on furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of 4 ABAIL No. 956 of 2025 S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court: (i). that the applicant shall make himself available for interrogation by a police officer as and when required; (ii) that the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence; (iii) that the applicant shall not leave India without the previous permission of the court. (iv) that the applicant shall appear before the trial court on each date fixed, unless personal presence is exempted; and (v). that the applicant shall not pressurize/ intimidate the prosecution witness. December 2, 2025 Pradeep/- (Subhash Vidyarthi,J.) PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Syed Husain Abbas, the learned counsel for the applicant, Sri Mayank Sinha, the learned AGA for the State, Sri Vijay Dixit, the learned counsel for the High Court of Judicature at Allahabad.

2. In furtherance of the order dated 27.11.2025, Sri Vijay Dixit, the learned counsel for the Hon'ble High Court of Judicature at Allahabad has obtained instructions in the matter and he has submitted that in furtherance of the FIR bearing Case Crime No. 358/2014, initially a charge sheet was submitted against three co-accused persons on

08.12.2014 and as rest of the accused persons could not be arrested, investigation against them continued. On 13.04.2015, charge sheet against three other co-accused persons was submitted and on 17.04.2015, another charge sheet against two co-accused persons was submitted.

3. Trial was held against the 8 charge sheeted accused persons, who were convicted by means of a judgment passed by the Additional Sessions Judge, Court No. 3, Gonda. During trial, accused persons Wasim Khan, Saddam Husain (the applicant), Sakir and Afsar Husain had been summoned for trial under Section 319 Cr.P.C. while investigation against them was still going on. On 25.09.2016, a charge sheet was submitted against these five co-accused persons including the applicant upon which, cognizance was taken by the learned Additional Chief Judicial Magistrate, 2 ABAIL No. 956 of 2025 Court No. 1 by means of an order dated 30.11.2016 and summons were issued for ensuring presence of the accused persons. Due to non presence of the additional accused persons, their matter could not be committed to the court of Session and their trial could not commence.

4. A copy of the written instructions is taken on record.

5. A Magistrate takes cognizance of an offence, not of the offender. Cognizance of the offence had already been taken upon submission of the first charge sheet dated 08.12.2014 and, therefore, there was no occasion for the learned Additional Chief Judicial Magistrate to again take cognizance of the same offence, of which cognizance had already been taken way back in the year 2014.

6. In these circumstances, the learned Magistrate had no jurisdiction to pass any order for summoning of the applicant in furtherance of the cognizance taken on 30.11.2016 when pursuant to the cognizance of the offence taken on 08.12.2014, the matter had already been committed to the court of session and trial had commenced there.

7. The applicant had already been summoned under Section 319 Cr.P.C. by means of an order dated 18.10.2016 and that summoning order has already been stayed by means of an order dated 07.12.2016 passed by a coordinate Bench in Criminal Revision No. 1131 of 2016. The petitioner's anticipatory bail application had been rejected by means of an order dated

09.09.2025 for the sole reason that the summoning order passed under Section 319 Cr.P.C. had been stayed by this Court and the stay order had not been brought to the notice of the court of Magistrate and, therefore, the Magistrate has not committed any illegality in issuing a non bailable warrant against him. In case this order is brought to the notice of the trial court, the trial court would not have passed any order in furtherance of the earlier order dated 18.10.2016.

8. After passing of the order dated 09.09.2025, its copy was filed before the Magistrate who declined to recall the non bailable warrant issued against the petitioner on the ground that it is mentioned in the order dated

09.09.2025 that the order be brought to the notice of the trial court which in the present case is the sessions court. 3 ABAIL No. 956 of 2025

9. The purport of the order dated 09.09.2025 was for bringing the order to the notice of the concerned court. In these circumstances, the learned Magistrate ought not to have refused to take note of the order dated

09.09.2025 passed by this Court. Even otherwise, any order passed by this Court has to be obeyed and respected in letter and spirit by all the courts. When the purport of the order dated 09.09.2025 passed by this Court in Anticipatory Bail Application No. 956 of 2025 was that the petitioner's summoning having been stayed, there is no occasion for his arrest, the learned Magistrate ought to have taken note of the order and recalled the non bailable warrant issued against the applicant.

10. In view of the forgoing discussion, this Court is of the considered view that as cognizance of the offence had already been taken on

06.01.2015 and the matter had been committed to the court by session where the trial commenced and the applicant and some other co-accused were summoned to face the trial under Section 319 Cr.P.C., there was no occasion for the learned Magistrate to again take cognizance of the same offence upon submission of the supplementary charge sheet. The Magistrate has issued non bailable warrant against the applicant due to his failure to appear before the Magistrate in furtherance of the summoning order issued consequent to passing of the successive cognizance orders, which is not permissible in law.

11. In the affidavit filed in support of the application, it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history. The applicant has undertaken to cooperate with the trial.

12. In these circumstances, I am of the considered view that the order dated 09.9.2025 deserves to be recalled and the applicant is entitled to be granted anticipatory bail in the present case.

13. Accordingly, the anticipatory bail application is allowed. In the event of arrest/ appearance of applicant-Saddam Husain @ Umar Mahmood Khan before the learned Trial Court in the aforesaid case crime, they shall be released on anticipatory bail on furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of 4 ABAIL No. 956 of 2025 S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court: (i). that the applicant shall make himself available for interrogation by a police officer as and when required; (ii) that the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence; (iii) that the applicant shall not leave India without the previous permission of the court. (iv) that the applicant shall appear before the trial court on each date fixed, unless personal presence is exempted; and (v). that the applicant shall not pressurize/ intimidate the prosecution witness. December 2, 2025 Pradeep/- (Subhash Vidyarthi,J.) PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench