Allahabad High Court
Shyam Babu And Another vs State Of U.P. And Another on 8 July, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 75 Case :- APPLICATION U/S 482 No. - 6518 of 2021 Applicant :- Shyam Babu And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Prakash Upadhyay,Prashant Shukla Counsel for Opposite Party :- G.A And Case :- APPLICATION U/S 482 No. - 2837 of 2017 Applicant :- Shyam Babu And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Prakash Upadhyay,Prashant Shukla,Rajesh Kumar Dubey Counsel for Opposite Party :- G.A.,Garun Pal Singh Hon'ble Vivek Agarwal,J.
Heard Sri Prashant Shukla, learned counsel for the applicants and learned AGA for the State.
These applications under Section 482 Cr.P.C. have been filed by the applicants seeking quashing of the chargesheet dated 02.10.2016 filed in Case Crime Number 856 of 2015 under sections 420, 467, 468, 471 IPC, Police Station Sadabad, District Hathras which is registered as Case No.929 of 2016 pending in the court of Additional Chief Judicial Magistrate Sadabad. Subsequently, applicants have filed Application under section 482 No. 6518 of 2021 with a prayer that the court may graciously pleased to quash the entire proceedings of Case No. 929 of 2016 (State vs. Shyam Babu and Others) and also non bailable warrant dated 04.02.2021 as well as proceedings under section 82 of Cr.P.C. against the applicants pending in the court of Additional Chief Judicial Magistrate Sadabad, Hathras.
The backdrop for filing of the second Application under section 482 namely 6518 of 2021 is that in application under section 482 No. 2837 of 2017, vide order dated 30.1.2017, an order was passed to not to take any coercive action against the applicants till the next date of listing. Thereafter case was listed on 23.1.2018 when report regarding service of respondent no. 2 was shown to be awaited, then on 15.10.2019, a Co-ordinate Bench extended the interim order till the next date of listing.
On 20.01.2020, similar order was passed extending interim order till the next date of listing and thereafter on 5.2.2020, order was passed to extend the interim order till the next date of listing. Thereafter on 26.2.2020, as a last opportunity, a weeks time was granted to the learner counsel for the applicants to file rejoinder affidavit and case was directed to be listed on 18.3.2020.
Perusal of the ordersheets from the trial court as have been annexed as annexure no.-11 reveals that on 4.2.2021, present applicants Shyam Babu and another Ajay were absent before the court below and therefore non bailable warrant was directed to be issued against Shyam Babu and Ajay.
Applicants' contention is that since there was a order of no coercive action against the applicants therefore non bailable warrant could not have been issued against the applicants so also proceedings under section 82 Cr.P.C. could not have been initiated.
Learned AGA submits that order granted in favour of the applicants on 30.1.2017, which has been continued from time to time, is in regard to not taking any coercive action against the applicants. There was no stay on the proceedings before the trial court and therefore order dated 30.01.2017 passed in Application under section 482 Cr.P.C. No. 2837 of 2017 does not permit the applicants to not to appear before the trial court and therefore with a view to enforce their presence, non bailable warrant has been issued and looking to the history of the applicants' absence, orders have been passed for taking action under section 82 Cr.P.C. which cannot be faulted with.
Attention of this court is drawn to the ordersheet dated 15.10.2019, annexure- 16 to the Application No. 6518 of 2021, which demonstrate that even on that date, accused Shyam Babu and Ajay were not present. It is further submitted that in PIL No. 564 of 2020, all interim orders granted, were extended, which were expiring subsequent to 19th March 2020 but that extension is to relate back to the order of taking no coercive action passed in Application No. 2837 of 2017 and in terms of the order dated 30.1.2017, applicants were not authorised to abstain from appearing before the court below.
After hearing learning counsel for the parties and going through the record, it is evident that applicants were granted protection for not taking coercive action vide order dated 30.1.2017. They were not protected from appearing before the court below in as much as there was no stay on the proceedings of the court below or on the chargesheet.
The act of the applicants' in not appearing before the court below gave rise to an independent and different cause of action for issuance of non bailable warrant and initiating proceedings under section 82 Cr.P.C., therefore, it cannot be said that there is any violation of the orders passed by the High Court on 30.1.2017.
In addition, in case non bailable warrant has been issued, applicants have a remedy of approaching the concerned court with an appropriate application for cancellation of non bailable warrants and to furnish an undertaking that they shall appear on each and every date.
Therefore in exercise of the extraordinary jurisdiction of this High Court under section 482 Cr.P.C. No. 6518 of 2021, if applicants have misconstrued the order dated 30.1.2017, then no indulgence can be shown in favour of the applicants and therefore application fails and is disposed off accordingly.
As far as Application U/S 482 No. 2837 of 2017 is concerned, it has come on record that despite affording last opportunity to file rejoinder affidavit, applicants have not filed any rejoinder affidavit to the counter affidavit till date.
Countered affidavit was filed on 4.2.2020, in which it is categorically mentioned that applicants dupped innocent citizens in the name of getting employment and such innocent persons who paid huge amounts in the name of providing job, have been cheated by the applicants. Further Raghuvendra @ Ravi is languishing in jail since 25.9.2016 and this fact was not disclosed while obtaining interim order dated 30.1.2017.
It is settled principle of law that Court should not interfere in the filing of the chargesheet or subsequent proceedings merely for asking of the applicants as is the ratio of law laid down in case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supplementary (1) SCC 335 as well as International Advanced Research Centre For Powder Matallurgy and New Materials (ARCI) and others Vs. Nirma Cerglass Technic Private Limited and another, (2016) 1 SCC 348.
Therefore as far as Application U/S 482 No. 2837 or 2017 is concerned, applicants have failed to make out a case for quashing of the chargesheet dated 2.10.2016 in Case Crime Number 856 of 2015 under Sections 420, 467, 468, 471 IPC, Police Station Sadabad, District Hathras which is registered as Case No.929 of 2016 pending in the court of Additional Chief Judicial Magistrate Sadabad and, therefore, application being devoid of merits deserves to be dismissed and is dismissed.
Order Date :- 8.7.2021 Ravi/-