Allahabad High Court
Guru Bachan Singh @ Bhangadi And 2 Others vs State Of U.P. And Another on 4 March, 2020
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 74 Case :- APPLICATION U/S 482 No. - 5670 of 2020 Applicant :- Guru Bachan Singh @ Bhangadi And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sarvesh Kumar Dubey,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicants with prayer to quash the impugned order dated 13.01.2020 as well as entire proceedings of Case No. 316 of 2018 (Sushree Indu Diwedi Vs. Guru Bachan Singh and others), under Sections 419, 465, 466, 468, 471, 120-B I.P.C. at Police Station Kotwali Fatehgarh, District Farrukhabad, pending in the court of Chief Judicial Magistrate, Farrukhabad.
Learned counsel for applicants argued that on the basis of inquiry, made under Section 340 Cr.P.C., a complaint was forwarded by court of Additional Sessions Judge / Special Judge, Farrukhabad before court of Chief Judicial Magistrate, against which order, appeal under Section 341 Cr.P.C. has been filed before High Court and the same is pending. As per Section 343(2) Cr.P.C., a proceeding under Section 482 Cr.P.C. was moved before this Court, as Application U/s 482 No. 45708 of 2019 with a prayer for quashing impugned summoning order dated 16.09.2019, passed by court of Chief Judicial Magistrate, Farrukhabad in Case No. 316 of 2018, under Sections 419, 465, 466, 468, 471, 120-B I.P.C. at Police Station Kotwali Fatehgarh, District Farrukhabad and it was rejected by this Court on the ground that straightway prayer under Section 343(2) Cr.P.C. was raised before High Court in above proceeding, whereas it was a discretionary power of court of Magistrate and it was not invoked thereat. Thereafter, an application before Magistrate was moved with prayer for staying proceeding in view of Section 343(2) Cr.P.C., though it was not properly drafted, rather argument was made in that light and it was mentioned in impugned order of Magistrate, but it was rejected on the ground that High Court has not granted any stay order in criminal appeal, as above, nor in above proceeding under Section 482 Cr.P.C. any stay was granted. This was under abuse of process of law. Hence, this application with above prayer.
The case has been assigned to this Bench vide order dated 28.02.2020 of Hon'ble the Chief Justice.
This Court, while deciding Application U/S 482 No. 45708 of 2019 has mentioned provision of Section 343(2) Cr.P.C., which provides that where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided. Thus, Legislature has given a judicial discretion to the Magistrate concerned that after having notice of pendency of appeal against the order and decision made, under Section 340 C.P.C., the Magistrate may, at any stage, adjourn the proceeding till judgment in appeal. As there was no material placed before this Court at the time of disposal of Application U/S 482 No. 45708 of 2019 on 13.12.2019, showing that this was raised before court of Magistrate and prayer was made for adjournment of proceeding till disposal of criminal appeal, filed under Section 341 Cr.P.C., hence straightway it was raised before this Court in above proceeding. Therefore, it was rejected. Now, the impugned order reveals that it was raised before above Magistrate court and it was accepted by Magistrate concerned for making a decision under his discretion for staying of proceeding, as above, but regarding discretion no recital is there in the order concerned, rather decision has been made on the basis that this Court in criminal appeal has not stayed the proceeding before trial court. As per Section 343(2) Cr.P.C., it is given discretion to Magistrate by Legislature for making a decision under exercise of its discretion as to whether proceeding is to be adjourned till disposal of criminal appeal, filed under Section 341 Cr.P.C., against order passed under Section 340 Cr.P.C.?
The Magistrate is to exercise its discretion by its own decision and it should be by application of judicial mind, but in this order, it does not appear so, rather decision has been made on the basis of no stay by appellate court, hence the application for this purpose is being allowed and impugned order, regrading issuing of process, is being quashed.
However, it is made clear that application under Section 343(2) Cr.P.C. is to be filed by applicant before trial court and it shall be decided after hearing other side by Magistrate concerned without being prejudiced or influenced by any order of this Court, passed previously, in accordance with provisions of Section 343(2) Cr.P.C., at the earliest.
Order Date :- 4.3.2020 NS