Allahabad High Court
Alok Mishra @ Santosh Mishra vs State Of U.P. And Another on 28 April, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 86 Case :- APPLICATION U/S 482 No. - 29168 of 2021 Applicant :- Alok Mishra @ Santosh Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dharmendra Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present application under Section 482 Cr.P.C. has been filed for staying the effect and operation of the impugned non-bailable-warrant order dated 08.04.2021 and 01.03.2021 passed by learned Additional District Judge, Kanpur Dehat in Sessions Trial No. 03 of 2019 (State Vs. Alok Mishra) arising out of Case Crime No. 142 of 2018 under Sections 304, 272, 273, 34 I.P.C. and Section 60 (A) of the Excise Act, Police Station Rura, District Kanpur Dehat and also to direct the Court below not to proceed further by taking coercive action against the applicant.
Learned counsel for the applicant submits that after registration of the F.I.R. against the applicant, the applicant challenged the same by way of filing Criminal Misc. Writ Petition No.15187 of 2018 (Alok Mishra alias Santosh Mishra Vs. State of U.P. and other) wherein the Division Bench of this Court vide order dated 20.06.2018 had stayed the arrest of the applicant till credible evidence is collected. Thereafter charge sheet was filed, upon which cognizance was taken and the same was challenged by the applicant by means of filing a Criminal Misc. (482) Application No. 25675 of 2019 in which, the co-ordinate Bench of this Court vide order dated 02.07.2019 had granted interim protection, whereby it was directed that no coercive action shall be taken against the applicant. He further submits that the aforesaid application has not yet been listed so far and in the meantime the case was committed to the Court of Sessions, being Sessions Trial No. 03 of 2019. Learned counsel further submits that the aforesaid application under Section 482 Cr.P.C. was neither listed nor any counter affidavit was filed and the same is pending consideration before this Court, inspite of the operation of the interim order, the learned Court below vide order dated 01.03.2021 has issued non-bailable-warrant against which an application for cancelling the non-bailable-warrant has been filed but the same has been rejected vide order dated 08.04.2021 in an illegal manner. It is thus contended that the impugned orders are illegal, arbitrary in view of the fact that interim order is operating in the Criminal Misc. (482) Application No. 25675 of 2019 and therefore the same are liable to be quashed by this Court. Learned counsel for the applicant has relied upon a decision of this Court dated 04.03.2020 passed in Criminal Misc. (482) Application No. 8845 of 2020 (Rakesh Yadav Vs. State of U.P. and another) as well as Judgement and order passed by Rajasthan High Court in the matter of Punit Vs. State and another passed in Application Criminal No. 515 of 2017 dated 04.09.2017 in support of his contention.
Per contra learned A.G.A. has submitted that the blanket prayer of stay is not maintainable in the instant application therefore on this ground alone, the instant application is liable to be dismissed.
Perusal of the impugned order dated 01.03.2021 shows that the learned Court below while issuing non-bailable-warrant has observed that inspite of affording several opportunities to the applicant to his appearance before the Court the applicant did not appear on account of which, bailable-warrant was issued against him, due to which, proceedings could not continue but he did not care to appear before the Court below as a result of which, non-bailable-warrant has been issued against the applicant. Thereafter, the applicant moved an application for recalling the non-bailable-warrant which has been rejected. The learned Court below while rejecting the application for recalling of the non-bailable-warrant has specially observed that to frame charge against the applicant does not come within the purview of coercive action and that the applicant is deliberately not appearing before the Court below on account of which, the proceedings of the case could not continue. Moreover, granting interim protection to the effect that no coercive action shall be taken, does not entitle the applicant to refuse to appear before the Court which simply means that no coercive action shall be taken against the applicant in the continuing proceedings. In the instant case, the case is at stage of framing charge and for framing charge, the accused has to put in appearance but the applicant is not appearing before the Court below, due to which the proceedings are lingering on, at the behest of the applicant. Needless to say that in the instant application blanket prayer of stay has been sought, which is also not maintainable.
So far as reliance placed by learned counsel for the applicant in the order dated 04.03.2020 passed in Criminal Misc. (482) Application No. 8845 of 2020 (Rakesh Yadav Vs. State of U.P. and another) is concerned, it is necessary to state here that in the said application, the learned Court below has placed reliance upon a Judgement passed in Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation, wherein the Hon'ble Apex Court has held that in case stay order has been granted, the same will come to an end automatically after expiry of six months which was challenged by the applicant of the said case, on the basis of Judgement and order passed in the matter of Fazalullah Khan Vs. M. Akbar Contractor (D) By. Lrs and Ors reported in 2019 Supreme (SC) 921 wherein the Hon'ble Apex Court has held that in case stay order has been granted, the same will not come to an end automatically after expiry of six months unless in exceptional case by speaking order. Although the learned Court below has relied upon the Judgement passed in Asian Resurfacing of Road Agency Private Limited and another (supra) but at the same time as it has been held in the matter of Fazalullah Khan (supra) that in exceptional cases by a speaking order. Perusal of the impugned orders shows that the learned Court below has passed a reasoned and speaking order by observing that on several occasions applicant was directed to put in appearance but the applicant was deliberately avoiding the same and is lingering on the trial, due to which the proceedings will be held up. So far reliance of the learned counsel for the applicant upon the Judgement of Rajasthan High Court in the matter of Punit Vs. State and another passed in Application Criminal No. 515 of 2017 dated 04.09.2017 is concerned, the same too is not applicable in the instant case.
In view of above, the instant application lacks merit is dismissed accordingly.
However liberty is granted to the applicant to file an appropriate application in the pending Criminal Misc. (482) Application No. 25675 of 2019.
Order Date :- 28.4.2022 S.Ali