Allahabad High Court
Dr. R.K.S. Chauhan vs State Of U.P. Through Prin. Secy. Home. ... on 6 February, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- U/S 482/378/407 No. - 693 of 2020 Applicant :- Dr. R.K.S. Chauhan Opposite Party :- State Of U.P. Through Prin. Secy. Home. Deptt. Lko Counsel for Applicant :- Ashwani Kumar,Nagendra Mohan Counsel for Opposite Party :- Govt. Advocate Hon'ble Dinesh Kumar Singh,J.
The present petition under Section 482 CrPC has been filed imugning the order dated 14.11.2019 passed by the learned Special Judge (P.C. Act)-III, Lucknow in Criminal Case No.43/2002, arising out of crime no.68/2002, under Section-7/13 of the P.C. Act, Police Station - Hazratganj, Lucknow.
Vide impugned order the learned Special Judge has dismissed the application of the petitioner for discharge mainly on the ground that the charge has already been framed and matter is on evidence and at this stage there is no question of discharging the accused on any ground. The view taken by the learned trial court does not appear to be incorrect. After framing of the charge, the question of discharge does not arise. The petitioner earlier filed a petition under Section 482 CrPC before this Court and this Court vide order dated 29.01.2019 disposed of the said petition interalia by following order :-
"Heard Shri Madhumita Bose,learned counsel for the applicant and Ms. Nand Prabha Srivastava, learned AGA for the State and perused the record.
This application has been filed to drop the proceedings of Case No. 43 of 2002, under Section 409 IPC and Section 3 (2) of the Prevention of Corruption Act, pending in th Court of Special Judge (Anti Corruption) Act, Lucknow.
"Per contra, learned AGA has vehmently opposed the prayer for quashing of charge sheet and proceedings of Case No. 43 of 2002, under Section 409 IPC and Section 3 (2) of the Prevention of Corruption Act, pending in th Court of Special Judge (Anti Corruption) Act, Lucknow and contended that in the facts and circumstances of the case a direction for expeditious disposal of pending discharge application be issued by this Court.
Considering the facts and circumstances of the case and material available on record, I am of the view that interest of justice would be served if the Court below is directed to decide the discharge application already moved by the applicant and pending for disposal on the file of the Court below.
In view of above, it is provided that the Court below will decide the discharge application of the applicant expeditiously, preferably within 60 days in accordance with law after hearing the parties. Parties will also be entitled to move relevant orders/documents relating to subsequent developments in the case, before the Court below. During disposal of the discharge application, applicant will be entitled to appear before the Court below through counsel.
With the above direction, this application is finally disposed of."
It appears that when the aforesaid order was passed learned trial court had already framed the charge. Application for modification was thereafter moved and this Court vide order dated 12.3.2019 passed the following order :-
"Order on C.M.P. No. 22377 of 2019.
Heard Sri Ashwani Kumar, learned counsel for the applicant, Miss Nand Prabha Shukla, learned A.G.A. for the State of U.P. on correction/modification of the judgment and order dated 21.01.2019.
Considering the facts and circumstances of the case as stated in the accompanying affidavit, correction/modification application is allowed and it is provided that the applicant is permitted to move a fresh discharge application before the Court below along with supporting documents, if any, within thirty from today."
From the order dated 12.3.2019 it is evident that the fact of framing of the charge was not brought to the notice of the Court otherwise there was no question of passing of the order dated 12.3.2019 on the application for modification. This is second petition for the same cause of action. Once the charge has been framed, the question of entertaining the discharge application does not arise under the scheme of the code and, therefore, this petition being wholly misconceived and is hereby rejected.
Looking at the facts and circumstances of the case, it is provided that if the applicant moves an application before the learned trial court for exemption from appearance or to be represented through counsel, his presence may not be enforced unless and until it is utmost required for conducting the trial.
Order Date :- 6.2.2020 mks