Allahabad High Court
Dr Pradeep Kumar vs State Of U.P. And Another on 16 February, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 3418 of 2023 Applicant :- Dr Pradeep Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajendra Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
List revised.
Heard Sri Rajendra Kumar Pandey, learned counsel for the applicant, Sri B.B. Upadhyay, learned counsel for the State and perused the material brought on record.
The present application U/S 482 Cr.P.C. has been filed by the applicant- Dr Pradeep Kumar with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the NBW dated 17.02.2020 passed by 3rd Additional Chief Judicial Magistrate, Gautam Budh Nagar in Case No. 542 of 2016 (State Vs. Dr Pradeep Kumar and others) , under Sections 420 I.P.C. and Section 15(2) and 15(3) of Medical Act, 1956, Police Station Noida Phase-II, District Gautam Budh Nagar, arising out of Case Crime No. 646 of 2015 in so far it relates to the applicant.
It is further prayed the effect and operation of NBW dated 17.02.2020 passed by 3rd Additional Chief Judicial Magistrate, Gautam Budh Nagar in Case No. 542 of 2016 (State Vs. Dr Pradeep Kumar and others) , under Sections 420 I.P.C. and Section 15(2) and 15(3) of Medical Act, 1956, Police Station Noida Phase-II, District Gautam Budh Nagar arising out of Case Crime No. 646 of 2015 in so far it relates to the applicant, and / or pass any other and further order as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."
Learned counsel for the State at the very outset argued that the applicant had previously approached this Court challenging the order of cognizance dated 24.02.2016 and the non-bailable warrant dated 12.03.2019 along with prayer for quashing of charge-sheet dated 25.12.2015 before this Court in Criminal Misc. Application U/S 482 No. 17417 of 2019 (Dr Pradeep Kumar vs. State of U.P. and another) in which vide order dated 30.04.2019 on the submission of learned counsel for the applicant at bar that appropriate directions be issued to the court to consider and decide the recall of non-bailable warrant / bail application expeditiously in accordance with law, the said liberty was granted and it was ordered that for a period of 30 days from the date of order no coercive action shall be taken against the applicant. The said order has been placed before the Court which is annexed as Annexure-3 to the affidavit. It is argued that there is no recital in the affidavit that the said order has been complied with, as such the applicant does not deserve any order from this Court but the present petition being misuse of process of Court be dismissed with exemplary cost on the applicant.
On being countered, learned counsel for the applicant states while placing paragraph 10 of the affidavit that the applicant has no knowledge about the proceedings therefore the court below has issued NBW against him. He states that in the same paragraph he has disclosed the fact of filing of 482 petition previously which was disposed of vide order dated 30.04.2019 which is annexed as Annexure-3 to the affidavit. He further states that due to unavoidable circumstances the applicant could not appear before the trial court and therefore NBW have been issued against him on 17.2.2020. Paragraph 11 of the affidavit has been placed for the same.
After hearing the learned counsel for the parties and perusing the records, it is evident that the applicant had previously approached this Court for challenging the charge-sheet, cognizance and non-bailable warrant as issued against him in which the following order was passed by a co-ordinate Bench of this Court.
"Heard learned counsel for the applicant and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of leaned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the chargehseet dated 25.12.2015 arising out of Case Crime No.646 of 2015, cognizance order dated 24.02.2016, non-bailable warrant dated 12.03.2019 as well as criminal proceedings of Case No.542 of 2016 (State vs. Dr.Pradeep Kumar and others), under section 420 IPC & under Sections 15(2) & 15(3) of Medical Act, 1956, Police Station Noida Phase-II,, District- Gautam Buddh Nagar, pending in the court of Additional Chief Judicial Magistrate III, Gautam Buddh Nagar.
The learned counsel for the applicant after advancing his arguments at some length, gave up his challenge to the aforesaid impugned non-bailable warrant dated 12.03.2019 and impugned criminal proceedings against the applicant and requested to grant some protection, so that applicant may surrender before the court below. The learned counsel for the applicant further stated at the Bar that he is not pressing any other prayer made in this application and prayed that a direction be issued to the courts below to consider and decide the recall of N.B.W. dated 12.03.2019/bail application of the applicants expeditiously in accordance with law.
Considering the prayer made by the learned counsel for the applicant, it is directed that in case applicant appears before the concerned court below within 30 days from today and applies for recall of N.B.W. dated 12.03.2019/bail application of the applicant shall be heard and disposed of expeditiously by the courts below in accordance with settled law laid down by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Criminal Law Journal 755 as well as judgement passed by Hon'ble Apex Court in (2009) 4 Supreme Court Cases, 437 Lal Kamlendra Pratap Singh Vs. State of U.P. For the period of 30 days from today, no coercive action shall be taken against the applicant.
With the above observations, this application under Section 482 Cr.P.C. is disposed of."
The present petition has been filed with the aforesaid prayer. Paragraph 10 & 11 of the affidavit read as under:
"10. That as the applicant has no knowledge, therefore the court below has issued NBW against the applicant. The applicant has approach to this Hon'ble Court by means of filing Criminal Misc. Application No. 17417 of 2019, which was disposed of by this Hon'ble Court on 30.04.2019. A true copy of the order dated 30.04.2019 passed by this Hon'ble Court is being filed herewith and marked as Annexure No. 3 to this affidavit.
11. There however, due to avoidable circumstances, applicant could not appear before the court below, therefore, the court below has issued NBW against against the applicant on 17.2.2020. However, thereafter on account of Covid-19 pandemic lockdown was imposed and the entire work has been stopped. After relaxation, the court below has again issued NBW against the application on various occasions, however, due to unavoidable circumstances, applicant could not appear before the court below. A true / certified copy of the order sheet is being filed herewith and marked as Annexure No. 4 to this affidavit."
In so far as COVID-19 pandemic is concerned, it is a common fact known to all and each that lockdown in the country was imposed in March, 2020. The order granting indulgence for 30 days to the applicant on his petition u/s 482 Cr.P.C. was dated 30.04.2019. The lockdown was imposed sometimes after 11 months of the same and as such the lame excuse given in Paragraph 11 of the affidavit does not impress this Court at all. The present petition is a repeat petition and is held by the Court to be clearly an abuse of process of law. The applicant is absconding since long as is apparent from the fact that charge-sheet was submitted against him on 25.12.2015 on which cognizance was taken and he was summoned vide order dated 24.02.2016. It is around 07 years since summoning of the applicant but he is absconding till date without any plausible explanation and even without honouring the order dated 30.04.2019 passed by a co-ordinate Bench of this Court on a concession made by him before the Court.
In view of the same, the present application is dismissed as being an abuse of process of law but with an exemplary cost of Rs. 50,000/- imposed upon the applicant to be deposited within two weeks before the Registrar General of this Court. If the same is not deposited within the aforesaid period, the Registrar General shall issue a letter to the District Magistrate / Collector, Gautam Budh Nagar for issuing a citation for recovery of the said amount as land revenue from the applicant which shall be realized within 30 days thereafter. As soon as the amount is realized, the same shall be transmitted to the Registrar General of this Court. The Registrar General shall then transfer the amount to the High Court Legal Service Committee for its realization.
A copy of this order be also forwarded to the trial court within a period of 10 days from today through FAX.
Order Date :- 16.2.2023 AS Rathore (Samit Gopal,J.)