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2019 Supreme(All) 1560
IN THE HIGH COURT OF ALLAHABAD
SHASHI KANT, J.
Basudev - Appellant
Versus
State of U.P. & Another - Respondent
U/S 482/378/407 No. 1259 of 2019
Decided On : 07-03-2019
Advocate Appeared:
For the Appellant : Kunwar Mukul Rakesh, Arun Kumar Gupta, Kunwar Shushant Prakash
For the Respondent:Govt. Advocate, Gyasuddin Khan
The court's decision was influenced by the interpretation of Sections 209, 223, 193 Cr.P.C. and the legal principle that once the case is committed to the Court of Session by a magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted.
Headnote:
Criminal Procedure Code - Quashing of Order - Sections 323, 504, 506, 376 IPC - 209, 223, 193 Cr.P.C.
Fact of the Case:
The applicant filed for quashing the order dated 06.02.2019 passed by Additional Sessions Judge, F.T.C.-1, Lucknow, in S.T. No. 970 of 2018, arising out of Case Crime No. 48 of 2001, under Sections 323, 504, 506, 376 IPC, P.S. Nagram, District Lucknow.
Finding of the Court:
The court found that the applicant is required to obtain bail under Section 376 IPC and declined the relief for quashing the order dated 06.02.2019.
Issues: The main issue was whether the applicant is required to obtain bail under Section 376 IPC and if the order dated 06.02.2019 should be quashed.
Ratio Decidendi: The court relied on the legal provisions of Sections 209, 223, 193 Cr.P.C. and the interpretation of these provisions in the case of Balveer Singh and another vs. State of Rajasthan and another to reach its decision.
Final Decision: The relief for quashing the order dated 06.02.2019 was declined, but the applicant was provided with the opportunity to move any fresh bail application for bail under Section 376 IPC within three weeks, and no coercive action was to be taken against the applicant during this period.
JUDGMENT :
SHASHI KANT, J.
1. Heard Sri Kunwar Mukul Rakesh, learned counsel for the applicant, Sri Santosh Kumar Mishra, learned A.G.A. for the State of U.P., Sri Zulfiqar Naqvi holding brief of Sri Gyasuddin Khan, learned counsel for the opposite party no. 2 and perused the record.
2. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 06.02.2019 passed by Additional Sessions Judge, F.T.C.-1, Lucknow, in S.T. No. 970 of 2018 (State vs. Basudev and another), arising out of Case Crime No. 48 of 2001, under Sections 323, 504, 506, 376 IPC, P.S. Nagram, District Lucknow.
3. Brief facts related to this case are that opposite party no. 2 has lodged an FIR as Case Crime No. 48 of 2001, under Section 376 IPC, P.S. Nagram, District Lucknow (Anneuxre-4) in which after investigation, on 04.07.2007, the charge sheet (Annexure-2) has been filed against the applicant under Sections 323, 504 and 506 IPC and on the basis of which the trial of the applicant began before the Court concerned, as Criminal Case No. 717 of 2001, in which statements of the prosecutrix P.W. 1 was recorded. During trial an application under Section 216 Cr.P.C. has been moved on 21.07.2013 by the prosecutrix for modification of the charge under Section 376 IPC. The above application of the prosecturix has been allowed vide order dated 22.08.2017 (Annexure C.A.-3) against thereof, a Criminal Revision No. 697 of 2017 was filed, which was dismissed by the Revisional Court vide order dated 25.08.2018 (Annexure C.A.-4). The order of Revisional Court was challenged before this Court by means of an application under Section 482 Cr.P.C. No. 6021 of 2018, which was disposed of vide order dated 27.09.2018 (Annexure-1).
4. The Magistrate Court has passed committal order under Section 209 Cr.P.C. on 01.10.2018 (Annexure-3)
5. Vide order dated 09.10.2018 (Annexure-2) the above order dated 27.09.2018 was modified. The relevant part of which is as follows :
“Looking to the facts and circumstances of the case, the order dated 22.074.2017 is modified and the petitioner is permitted to apply for bail before the Sessions Court where the case has been committed within two weeks from the date of the file is received by Sessions Court. Till then, no coercive steps shall be taken against the petitioner in the case.
Petition is disposed of.”
6. Subsequent to that, the applicant moved an application before the Court of Sessions on 20.10.2018, but in view of the mention of the fact in the committal order to the effect that the applicant is on bail and shall remain on bail during trial, the applicant has not pressed his bail application on 01.12.2018. Thereafter the applicant personally appeared before the Court of Session up to 10.12.2018. On 22.12.2018 he moved an exemption /discharge application. On that date the Presiding Officer was on leave and in the order passed on that date, it was noticed that the applicant has not complied the orders passed by this Court. As per the learned counsel for the applicant, the order sheet (Annexure-4) is not signed by any one. On 02.01.2019, the Court below again observed that compliance of the orders of this Court, the applicant has not obtained bail. The exemption application of the applicant was rejected and non bailable warrant has been issued against the applicant. The order dated 02.01.2019 was challenged by the applicant by means of an application under Section 482 Cr.P.C. No. 652 of 2019, which was decided vide order dated 25.01.2019 (Annexure-6). The relevant part of which reads thus :
“Submission of learned counsel for the petitioner is that after the aforesaid order passed, an order under Section 209 Cr.P.C. is passed on 01.10.2018, in which the Court stated that accused are already on bail and the trial shall continue on the same bail. There is no requirement to file a fresh bail application under Section 376 IPC. However, the Court is insisting for bail in view of order dated 09.10.2018 passed by this Court in Crl.
