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Girdhari Yadav vs State Of U.P. And Anr on 17 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 73

Case :- APPLICATION U/S 482 No. – 35891 of 2018

Applicant :- Girdhari Yadav

Opposite Party :- State Of U.P. And Anr

Counsel for Applicant :- Vivek Saran,Shri M.D. Singh (Shekher) (Senior Counsel)

Counsel for Opposite Party :- G.A.,Ashok Kumar Singh,Pratibha Singh

Hon’ble Om Prakash-VII,J.

This application under Section 482 Cr.P.C. has been filed with the prayer to set aside the order dated 1.9.2018 passed by the Judicial Magistrate-I, Jaunpur in case no. 3405 of 2017 (State Vs. Girdhari and others) arising out of case crime no. 209 of 2010, under Sections 406, Section395, Section397 IPC, Police Station Mungra Badshahpur, district Jaunpur. Further prayer has been made to stay the proceedings of the aforesaid case.

Heard Sri M. D. Singh (Shekhar), learned Sr. Advocate assisted by Sri Vivek Saran, learned Advocate, Sri Ashok Kumar Singh, learned Advocate for the opposite party no. 2 and the learned A.G.A.

Submission of Sri Singh, learned Senior Counsel appearing for the applicant is that initially charge sheet was submitted in this matter only for the offence under Section 406 IPC. Cognizance was taken which was challenged before this Court vide Application U/S 482 No. 24162 of 2010; Application U/S 482 No. 21599 of 2010; Application U/S 482 No. 30177 of 2010 and Application U/S 482 No. 30178 of 2010 and the same were decided on 17.4.2017 affirming the cognizance order. It is also argued that applicants approached the Hon’ble Apex Court through Special Leave to Appeal which was also dismissed. It is further submitted that in the meantime one application was moved by the applicant before the court concerned for his discharge. Informant also moved an application for taking cognizance under Section 395, Section397 IPC which was rejected on 13.10.2017. It is further argued that discharge application moved by the applicant was also rejected by order dated 12.12.2017. Although order dated 12.12.2017 passed by the Trial Court was challenged before this Court vide Application No. 1540 of 2018 and the same was disposed of vide order dated 7.2.2018 extending liberty to the applicant to surrender before the court concerned. It is next argued that on the basis of wrong advise applicant approached the Hon’ble Apex Court in Special Leave to Appeal which was also dismissed. Since the order dated 12.12.2017 was passed in utter violation of the order dated 17.4.2017, therefore, again an application was moved before the Trial Court to modify the cognizance order passed under Section 395, Section397 IPC which was rejected by the court concerned vide impugned order on the basis that wrong provision has been quoted in the order. It is submitted that mere quoting of wrong provision prayer made by the applicant cannot be rejected. Since there was no need for taking cognizance under Section 395 IPC Trial Court ought to have allowed the application.

Learned counsel appearing for the opposite party no. 2 as well as learned A.G.A. argued that modification application moved by the informant for taking cognizance for the offence under Section 395, Section397 IPC was rejected vide order dated 13.10.2017 but the cognizance order dated 12.12.2017 was passed on the basis of evidence available on record. Earlier order has been passed by the trial court. There is no illegality or infirmity in the order. Fresh application moved on the part of the applicant to modify the order dated 12.12.2017 was not maintainable, therefore, trial court has rightly rejected the same. There is no illegality or infirmity in the impugned order.

I have considered the rival submissions and perused the entire record.

As is clear from the record, initially charge sheet was submitted in the matter only for the offence under Section 406 IPC. Parties approached this Court invoking jurisdiction under Section 482 Cr.P.C., as has been disclosed in the contention of the learned counsel for the parties. This Court vide order dated 17.4.2017 refused the prayer made by the accused persons. It is also evident from the record that accused appeared before the Apex Court through Special Leave to Appeal but the same was also dismissed. It further appears that during pendency of the trial one application at the end of the complainant/informant may raise this question at the stage of evidence. A perusal of record also reveals that one discharge application was modified by the applicant before the trial court bu the same was rejected vide order dated 12.12.2017. Applicant approached this Court invoking the jurisdiction under Section 482 Cr.P.C. vide Application U/S 482 No. 1540 of 2018 and another Bench of this Court on 7.2.2018 passed the following order :

“Heard Sri V. P. Srivastava, learned Senior Counsel assisted by Mr.Akhilesh Singh and Mr. Shivam Yadav, learned counsel for the applicant, Sri Ashok Kumar, learned counsel for the Opposite Party No. 2, Sri Ajit Ray, learned AGA and perused the record.

This application has been filed with a prayer to quash the order dated 12.12.2017 as well as entire proceedings in Case No. 3405 of 2017, under Sections 406, Section395 Section397 IPC, PS. Mungra Badshahpur, District Jaunpur.

Learned counsel for the applicant stated that after investigation charge sheet was filed in the present matter under Section 406 IPC. Thereafter, the applicants were granted bail under the said section. Subsequent thereto, a discharge application was filed before the court below. The court below while dismissing the discharge application by the impugned order dated 12.12.2017 has also taken cognizance for the offence under Sections 395 and Section397 IPC and summoned the applicants. Non-bailable warrant has also been issued against the applicants.

After arguing the matter for quite sometime, learned counsel for the applicant has confined his prayer to the extent that the some short time be granted to applicants to surrender before the Court below and to file an application for bail and the same may be decided on the very same day on merit.

Sri Ashok Kumar, learned counsel for the Opposite Party No. 2 stated that he has no objection in case the bail application is decided on the same day.

Considering the facts and circumstances of the case and the submission made by the learned counsel for the parties, it is directed that in case the applicants surrender before the court below within 10 days from today and apply for bail, their prayer for bail shall be considered expeditiously by the courts concerned on the same day if there is no legal impediment.

For a period of 10 days from today or till the date of surrender of the applicants before the court below, whichever is earlier, no coercive action shall be taken against the applicants.

It is made clear that this Court has not expressed any opinion on the merits of the case.

With the aforesaid directions, this application is finally disposed of.

Registry is directed to issue certified copy of the order to the learned counsel for the applicants on payment of usual charges on priority. ”

It also appears that the applicant again approached the Apex Court by moving Special Leave to Appeal but the same was also dismissed, as is clear from annexure no. 11 to the application. Again applicant moved an application mentioning therein the provisions of Section 405 Cr.P.C. to pass appropriate order modifying the cognizance order dated 12.12.2017 regarding the offence under Section 395, Section397IPC but the same was also rejected vide order dated 11.9.2018 and non bailable warrant and process of 82 SectionCr.P.C. were also issued. Vide order dated 12.12.2017 trial court while rejecting the discharge application moved by the applicant has taken cognizance under Section 395, Section397 IPC also. Order dated 12.12.2017 was challenged before this Court confining his prayer only to the extent that some short time be granted to the applicant to surrender before the court below and to file application for bail. Prayer was allowed by this Court vide order dated 7.2.2018, as quoted herein above, order dated 7.2.2018 has also attained finality as the same has been affirmed by the Hon’ble Supreme Court in the Special Leave to Appeal filed on behalf of the applicant himself. If such is the position, order dated 12.12.2017 in the opinion of the court has rightly been turned down by the court below vide impugned order. It is true that mere mentioning of wrong provisions in the application does not change the nature of the prayer and application cannot be rejected solely on that ground and keeping in view the entire facts and circumstances as mentioned herein above order dated 1.9.2018 is not liable to be set aside. No illegality, infirmity or perversity is found in the impugned order. Cognizance taken by the concerned Magistrate for the offence under Section 395, Section397 IPC has been affirmed by the Hon’ble Supreme Court in Special Leave to Appeal (Crl) 1575 of 2018.

Thus, I am of the view that no good ground has been shown by the applicants to admit and allow the present application.

Thus, prayer made in the application is hereby refused.

The application stands dismissed.

Order Date :- 17.7.2019

Sachdeva

 

 

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