Allahabad High Court
Rinku @ Ajay Sharma vs State Of U.P. & Anr. on 26 September, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- U/S 482/378/407 No. - 7011 of 2019 Applicant :- Rinku @ Ajay Sharma Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Alok Kumar Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been moved on behalf of the applicant for quashing the impugned order dated 25.04.2019, thereby issuing NBW against the applicant by Addl. Sessions Judge/FTC, Lucknow, as well as order dated 03.09.2019, thereby issuing the process under Section 82 and 83 Cr.P.C.
Learned counsel for the applicant has submitted that the First Information Report has been lodged on the basis of false and fabricated story against the applicant and the applicant has falsely been implicated in this case. Learned counsel further submits that due to medical ailments, the applicant could not appear before the court below on the date fixed, as such NBW as well as proceedings of 82 and 83 Cr.P.C. have been issued against him which are illegal and arbitrary in nature and the same are liable to be quashed.
So far as the latest status of the case pursuant to the lodging of the FIR and submission of chargesheet after investigation by the police is concerned, the applicant has himself stated in Para 5 as under:
"That the petitioner was granted bail by the learned Trial Court vide order dated 02.12.2009 and after submitting two sureties, the petitioner came out from jail."
Para 6, 7 and 8 of the application is quoted as under:
"6. That the Police have not investigated the matter properly and submitted the charge sheet no. 207/2010 on 03.04.2010 against the petitioner and co-accused Ramesh Chandra Sharma under Section 363, 366, 379, 376, 506, 368 IPC. The true photocopy of the charge sheet no. 207/2010, dated 03.04.2010, is being annexed herewith as Annexure no. 4 to this petition.
7. That the case was referred for session trial by the concern Judicial Magistrate before the Additional Session Judge/F.T.C. and same has been instituted as Session Trial No. 521/2010.
8. That thereafter the six charges were framed against the petitioner vide order dated 02.03. 2015, passed by the Additional Sessions Judge/F.T.C. Sitapur and at the time of framing the charges, the petitioner was present."
He further submits that after getting the bail from the trial court, the petitioner was continuously appearing before the learned court below, but unfortunately the petitioner fell seriously ill, as such he could not appear before the learned trial court. More elaborately, in para 10 of the application, the applicant submits as under:
"That in the January, 2017, due to pain in stomach of petitioner, he took advices from the several Local Doctors who gave medicines to him, but the petitioner's stomach pain has not been curing, as such the petitioner went to K.G. Medical University Lucknow in the month of April, 2017 and medical investigation was made by the Doctor, then the petitioner came to know that his liver and gall bladder are not functioning properly and his treatment relating to Liver and Gall Bladder was going till the year, 2018. The true copies of the medical papers of petitioner relating to the treatment of Liver and Gall bladder, are being annexed herewith as Annexure No. 5 to this petition collectively."
Further in para 12, he submits that due to absence of petitioner, the learned trial Court has issued N.B.W. against him vide order dated 03.03.2017 and same order was repeated on 25.04.2019 due to his non-appearance and notice to the sureties was issued for their appearance on 22.05.2019. The certified copy of the order dated 25.04.2019 is annexed as Annexure no. 2 to this application. Subsequent thereto on 03.09.2019, the court observing the defiance of the earlier orders, passed for ensuring the presence of the accused-applicant before the court, issued process under Sections 82 and 83 of the Cr.P.C.
Learned counsel challenges the issuance of proceeding under Sections 82 and 83 Cr.P.C. simultaneously as an arbitrary and illegal order. It is further alleged that issuing of the aforesaid process under Sections 82 and 83 Cr.P.C, 05.10.2019 is fixed for appearance of the accused.
The applicant against whom the process were issued for appearance before the court on 05.10.2019 but the applicant directly came before this Court under Section 482 Cr.P.C. Since the extraordinary power of the Court cannot be exercised for stifling the legitimate proceeding of the court and when admittedly the accused-applicant himself pleaded the failure on his part, though alleging some reasons behind default in his appearance, but simultaneously issuance of the process under Sections 82 and 83 Cr.P.C. nothing amounts to any skipping of the procedure due to which the ends of justice may be defeated. However, learned counsel submits that once the bail is granted in his favour and he has reasons for failing to comply with the conditions, therefore, if his arrest is avoided by protecting his personal liberty, it would be in the interest of justice to provide him a chance to appear before the court and participate in the proceeding.
On the basis of materials placed on record, learned counsel for the applicant fails to show any manifest error in the proceeding pursuant to FIR investigation submitting chargesheet, thereafter taking cognizance of offence thereunder and issuance of summons for trial as well as other process like NBW and process under Sections 82 and 83 Cr.P.C. Even no prima facie case for the quashment of proceedings is made out.
Accordingly, this application under Section 482 Cr.P.C. has no force and is hereby rejected. However, it is provided that if the applicant appears before the court below and moves an application, assigning the reasons for the default in appearance before the court below within 15 days from the date of order, the court concerned is directed to consider and dispose of the same expeditiously so as to ensure the participation of the accused-applicant in the proceeding before it.
Meanwhile, for a period of 15 days or till the appearance/surrender of the accused-applicant before the court below moving an application for cancellation of the process pursuant to his default in appearance passing of order dated 25.04.2019, whichever is earlier, no coercive action shall be taken.
Order Date :- 26.9.2019 kkv/