Allahabad High Court
Vijay Kumar Trivedi vs State Of U.P. And Another on 22 July, 2010
Court No. - 28 Case :- U/S 482/378/407 No. - 2912 of 2010 Petitioner :- Vijay Kumar Trivedi Respondent :- State Of U.P. And Another Petitioner Counsel :- Salil Kumar Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
Heard Mr. Salil Kumar Srivastava, the learned counsel for the applicant, Mr. Rajendra Kumar Dwivedi, the learned AGA for the State and Mr. Anadi Banerji for the complainant and perused the record.
Mr. Rajendra Kumar Dwivedi, the learned AGA raised a preliminary objection regarding jurisdiction of this Bench to hear the matter. Mr. Dwivedi submitted that the applicant had earlier filed Case No. 446 of 2007 under section 482 CrPC for quashing of the charge sheet and the matter was heard and disposed of finally by Hon'ble A. Mateen, J. on 13.4.2010. His Lordship provided, inter alia, an opportunity to the applicant to move an application under section 239 CrPC before the trial court concerned and required the court concerned to pass an appropriate order in accordance with law. Accordingly the applicant moved an application under section 239 CrPC before the learned trial court, which was dismissed vide the order dated 20.3.2010. The applicant filed a fresh petition no.2222/2010 under section 482 CrPC before this Court and impugned the order dated 20.3.2010 of the trial court. That petition came up before this Bench in the month of May 2010 and was finally heard and judgment was reserved but before delivery of the judgment, a written argument was filed on behalf of the applicant, therefore, the matter was directed to be placed for rehearing but rehearing could not conclude in the month of May 2010 and as such the matter was directed to be listed in the month of July 2010. On 9.7.2010, Mr. Salil Kumar Srivastava, the learned counsel for the applicant sought for permission of this Bench to withdraw the matter with a liberty to file a fresh petition. Keeping in view the facts and circumstances of the case, the applicant was permitted to withdraw the petition with a liberty to file a fresh petition. The applicant has, therefore, filed the present petition before Hon'ble Vedpal, J. but his Lordship declined to hear the matter and directed that the matter be placed before an appropriate Bench after nomination by Hon'ble The Senior Judge. It was next submitted that the Hon'ble Senior Judge nominated myself to hear the matter. Accordingly the present petition came up before this Bench. During the course of hearing, the learned AGA raised the question of jurisdiction of this Bench and submitted that in view of Chapter V Rule 13 of the Allahabad High Court Rules (hereinafter referred to as 'the Rules)', the present matter is liable to be heard by Hon'ble A. Mateen,J. as His Lordship had heard the first petition and had passed a final order and the present matter has arisen out of the same proceedings and the object behind filing of the present petition is similar to the object behind the first petition.
Mr. Salil Kumar Srivastava, on the other hand, submitted that as the second petition was heard by this Bench in the month of May 2010 and reached up to the stage of judgment, the question of referring the matter to Hon'ble A. Mateen,J. does not arise and the present matter has become a tied up matter of this Court and is liable to be heard by this Bench in accordance with the Chapter V Rule 14 of the Rules. Mr. Srivastava further submitted that during the course of hearing in the month of May, 2010, the learned AGA accepted the jurisdiction of this Court and did not raise the question of jurisdiction, therefore, he is estopped from challenging the jurisdiction of this Court. Mr. Srivastava further submitted that the present petition has arisen on the basis of altogether a new cause of action, which arose on rejection of the applicant's petition under section 239 CrPC, therefore, the present matter is not in any way connected with the first petition. It was also submitted that the present petition was heard in this Bench at length on 19.7.2010 and on that day too the learned AGA did not raise any objection. When certain queries were made from the Bench on 19.7.2010 and the learned AGA instead of replying the queries, sought for time. Consequently the matter was directed to be placed on 20.7.2010 but on the adjourned date, the learned AGA instead of replying the queries of the Bench, questioned the jurisdiction of the Bench. This indicates that the question of jurisdiction has been raised only to delay the decision of the petition and to deprive the applicant to seek appropriate relief. Mr. Srivastava lastly submitted that the Chapter V Rule 13 of the Rules does not provide that each and every matter covered by the rule must be placed before the Hon'ble Judge, who had heard the previous matter. In appropriate cases,there may be a departure and due to that reason word 'ordinarily' has been used in the Chapter V Rule 13 of the Rules.
The learned AGA in his reply submitted that no doubt Hon'ble the Senior Judge has nominated this Bench to hear the matter but His Lordship was not informed that the applicant's first petition had been heard by Hon'ble A. Mateen,j.
Keeping in view the facts and circumstances of the case and submissions of the learned counsels for the parties, I do not consider it proper to decide the question of my own jurisdiction. It would be appropriate to lay the matter before Hon'ble The Chief Justice or Hon'ble The Senior Judge, as the case may be, for appropriate order.
The Registry is directed to place the matter before Hon'ble The Chief Justice or Hon'ble The Senior Judge, as the case may be, for nomination of an appropriate Bench to hear the matter.
After the nomination, the matter be put up before the appropriate Bench on 27.7.2010 as fresh.
Order Date :- 22.7.2010 RKSh