Allahabad High Court
Amit Kumar And Another vs State Of U.P. And Another on 29 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- APPLICATION U/S 482 No. - 16427 of 2022 Applicant :- Amit Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Parvesh Kumar Pandey,Sarvesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Heard Sri Parvesh Kumar Pandey, learned counsel for the applicants and Sri S.S. Sachan, the learned A.G.A.
This is an application under Section 482 CrPC filed by the applicants staying the effect and operation of non-bailable warrant issued by the learned Chief Judicial Magistrate, Amroha, vide its order dated 13.04.2022 in Criminal Case no.557 of 2019 (State vs. Amit Kumar and another) pending before the Court of learned Chief Judicial, Magistrate, Amroha, under section 420 IPC, arising out of Case Crime No.161 of 2018 related to Police Station Amroha Dehat, District Amroha (Jyotibafullyainagar).
Learned counsel for the applicant has sought to argue that challenging the proceedings, which were undertaken emanating from the summoning order dated 14.2.2019 passed by Chief Judicial Magistate, Amroha in Case No. 1316 of 2018 (Rohtash vs. Amit Kumar and another), under Section 420 IPC, in Case Crime No. 161 of 2018, P.S. Amroha Dehat, District Amroha, the applicant had filed Application under Section 482 CrPC No. 20038 of 2019, Amit Kumar and another vs. State of U.P. and another, order whereof is being quoted hereinunder:
"Sri Sanjay Ojha Advocate has filed power today on behalf of the opposite party no. 2, which is taken on record.
Learned A.G.A. has accepted notice on behalf of the opposite party no. 1.
Issue notice to the opposite party no. 2 by registered/speed post, returnable at an early date.
Steps be taken within a week.
Learned counsel for the opposite party no. 2 may file counter affidavit within four weeks.
Rejoinder affidavit, if any, may also be filed within two weeks thereafter.
List after six weeks.
Learned counsel for the applicants contended that the applicant no.1 and applicant 2 are wife and son-in-law of the opposite party no. 2 respectively. Due to harassment for dowry, the applicant no.1, has filed various criminal cases under Sections 498-A IPC, and the proceedings under Section 125 Cr.P.C. and Section 12 of Domestic of Violence Act against the opposite party no. 2 and his family members. In retaliation and with intention to exert pressure upon the applicant no. 1, the opposite party no. 2 has lodged a wrong and false FIR in which final report has been filed, subsequent on the protest petition filed by the opposite party no. 2, the applicants have been summoned in the matter. In view of the above, the entire proceedings of the criminal proceedings including the impugned summoning order dated 14.02.2019 is liable to be quashed.
Per contra, learned A.G.A. as well as learned counsel for the opposite party no. 2 contended that the opposite party no. 2 has filed correct FIR against the applicants in which wrong final report has been filed and on protest petition of the opposite party no. 2, the applicants have been summoned. In view of the above, the application is devoid of merits and liable to be dismissed.
The matter requires consideration.
In view of the above, till the next date of listing, the effect and operation of the impugned summoning order dated 14.02.2019 passed by Chief Judicial Magistrate, Amroha in Case No. 1316 of 2018 (Rohtash vs. Amit Kumar and another), under Section 420 IPC in Case Crime No. 161 of 2018, Police Station Amroha Dehat, District Amroha, shall remain stayed."
Learned counsel for the applicants has next contended that they have filed a stay extension application, which is pending and in view of the law laid down by the Hon'ble Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. and Anr. v. Central Bureau of Investigation, (2018) 16 SCC 299, the stay itself stood lapsed, however, due to non-consideration of the stay extension application, non-bailable warrants have been issued, which is subject matter of challenge herein. According to the learned counsel for the applicant, this Court may grant indulgence while according him interim protection till the stay extension application is decided this way or that way.
Sri S.S. Sachan, learned A.G.A. on the other hand has countered the said submission and has argued that the present proceeding itself is not maintainable, particularly in view of the fact that the applicants themselves have already filed a stay extension application, which is pending consideration and the proper course for the applicants is to take all possible measures while resorting to grant of interim protection pending in the stay extension application and present collateral proceeding is not maintainable at all.
I have considered the rival submissions and perused the record. This Court finds itself unable to subscribe to the argument so sought to be raised by learned counsel for the applicants, particularly in view of the fact that once 482 Application No. 20038 of 2019 is Amit Kumar and another vs. State of U.P. and another is itself pending and stay extension application has been preferred, then the proper course for the applicant is to get the same decided and thus the present application is not maintainable.
Learned counsel for the applicant has further made a submission that the applicant may grant liberty to prefer an application before the court concerned seeking enlargement on bail.
Be that as it may be it is always open for the applicants to prefer an appropriate application and this Court has no reason to disbelieve that court below shall consider the same with most expedition as per the law existing on the land.
Accordingly the present 482 application is consigned to record.
Order Date :- 29.6.2022 N.S.Rathour