Allowed

Gopi Nath Tiwari and Another v. State of U.P. and Another

Allahabad HC3 Jul 2018A482/19180/2018

Case brief

AI extract

What is this about?

This application challenged the rejection of a plea for extension of time to appear before the trial court and the consequent expiry of a stay on a non-bailable warrant. The court held that while it could not extend the time granted by the Supreme Court, it allowed a fresh one-month stay as the applicants are in-laws fit for protection under the anti-social element exception.

What did the court decide?

Non-bailable warrant kept in abeyance for a period of one month.

Gopi Nath Tiwari and Another Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2018)

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Court No. - 49 Case :- APPLICATION U/S 482 No. - 19180 of 2018 Applicant :- Gopi Nath Tiwari And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi

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Counsel for Opposite Party :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Manish Tiwary, learned counsel for the applicants and Sri Ratnesh Nandan Singh, learned AGA for the State as also perused the record.

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The present application U/s 482 Cr.P.C. has been filed against the order dated 14.05.2018 passed by the Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, by which the application dated 10.05.2018 filed by the applicants has been rejected and the applicants were directed to appear before the said Court on 25.05.2018 pursuant to non bailable warrant issued against them on 09.01.2018.

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Briefly, the facts relevant to the present application are that the applicants no. 1 and 2 are the father-in-law and mother-in-law respectively of Jyoti who is married to their son Abhishek Tiwari. Neeraj Kumar Pandey- opposite party no.2 is the brother of the said Jyoti.

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The FIR was lodged by the opposite party no.2 against Abhishek Tiwari, applicant nos.1 and 2 and Vivek Tiwari- elder son of the applicants and their daughter Pratibha Devi, alleging commission of offence under Sections 498A, 323, 504, 506, 406, 316 IPC and 3/4 D.P.Act. Upon investigation, charge sheet was also submitted against Abhishek Tiwari, applicant nos. 1 and 2 and Vivek Tiwari under sections 498A, 323, 504, 506, 354, 316 IPC and 3/4 D.P.Act.

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Upon being summoned, the applicants approached this Court by means of application u/s 482 Cr.P.C. No. 34283 of 2015, which was disposed of vide order dated 01.12.2015 on the following terms:

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"From the perusal of the materials on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192

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and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.

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The prayer for quashing the entire proceedings of the aforementioned case is refused.

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However, it is directed that if applicants appear and surrender before the court below within four weeks from today and applies for bail, their prayer for bail shall be considered and decided expeditiously in view of the settled law laid by this Court in the case of Amrawati and Another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC), Lal Kamlendra Pratap Singh Vs. State of U.P.

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For a period of six weeks from today or till the applicants surrender and apply for bail whichever is earlier, no coercive action shall be taken against them . However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid directions, this application is finally disposed of."

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The applicants challenged the aforesaid order before the Supreme Court in SLP (Cr.) No. 297 of 2016 (Gopi Nath and another Vs. State of U.P. and another). Initially the Supreme Court granted stay order in favour of the applicants on 14.01.2016. Subsequently on 15.11.2017 the aforesaid SLP (Cr.) was dismissed with the following observations:

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"We do not think it appropriate to interfere with the impugned judgment and order.

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The special leave petition is accordingly dismissed.

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However, the order staying the arrest of the petitioners is hereby confirmed. The petitioners are directed to appear before the Trial Court on 9th January, 2018. Further, the petitioners are at liberty to apply for exemption from personal appearance before the Trial Court.

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It is needless to say that the trial may be concluded as expeditiously as possible."

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It is the case of the applicants that despite best efforts, they could not appear before the trial court on the date fixed by the Supreme Court i.e. 09.01.2018. The reason for their non appearance is claimed to be delayed arrival of their train at Bhadohi. In the proceedings on 09.01.2018, the counsel appearing on behalf of the applicants moved an application for exemption of the applicants. While no order was passed on that application, on that date, the learned court below issued non bailable warrant against the applicants on 09.01.2018 itself occasioned by non appearance of the applicants, as noted above.

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On 27.02.2018 the applicants filed an application to recall the order dated 09.01.2018. The applicants' application was rejected vide order dated 08.03.2018. According to the learned Court below non bailable warrants had been issued as the applicants failed to comply with the order of the Supreme Court and they had not appeared before the said Court on 09.01.2018. The application for recall of the said order was rejected for the reason that the applicants had yet not obtained bail. The matter was thus fixed on 22.03.2018.

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The aforesaid order dated 08.03.2018 was challenged by the applicants by means of application U/s 482 Cr.P.C. No. 9645 of 2018, which was disposed of vide order dated 11.04.2018 on the following terms:

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"From the fact it can be inferred that learned counsel for the applicants was present on 9.1.2018 before the trial court and it was requested by the counsel that process be not issued against the applicants. The trial court observed that prayer of learned counsel for the applicants could not be accepted as there is no such provision and it is also observed by the trial court that vakalatnama of learned counsel for the applicants has not been filed.

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The Hon'ble Apex Court stayed the arrest of the applicants and only this much is being directed that applicants will appear before the court concerned on 9.1.2018 and will seek exemption from personal appearance before the trial court.

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From perusal of Hon'ble Apex Court order, this is clear that applicants were directed to appear before the trial court on 9.1.2018 and further to seek exemption from personal appearance before the trial court. When the applicants did not appear before the trial court on 9.1.2018, then court issued direction for issuance of non bailable warrant. The trial court was perfectly justified in issuing the non bailable warrant when in pursuance of Hon'ble Apex Court order, the applicants did not appear before the trial court concerned. The trial court was not authorize to extend the time for appearance before its court, which was fixed by Hon'ble Apex Court.

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However, seeing the contention made by learned counsel for the applicants that learned counsel for the applicants was present on the date fixed by the Hon'ble Apex Court and applicants could not reach to the court in time due to delay in arrival of train so a suitable protection is liable to be allowed to the applicants.

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Accordingly, the petition is allowed to the effect that non bailable warrant issued against the applicants will remain stayed for one month from today, meanwhile the applicants, if so wish, seek extension of time for appearance before the trial court concerned.

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The petition is, accordingly, disposed of."

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In pursuance of the aforesaid order, the applicants appear to have filed another application before the learned trial court to extend the time for their appearance. This application is dated

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10.05.2018. Purportedly, in compliance of the order dated 15.11.2017, they again filed an application for exemption for personal appearance. These applications have been rejected by order dated 14.05.2018. It has been challenged in the present application.

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Learned counsel for the applicants submits that once this Court (vide its order dated 11.04.2018) had provided that the applicants may apply for extension of time before the learned trial court, it was no longer open to the learned Court below to reject the application again on the plea and reasoning that the applicants had yet not obtained bail in pursuance of the nonbailable warrants issued against them.

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In this regard, first reliance has been placed on the order of the Supreme Court dated 15.11.2017. It is submitted that the Supreme Court had confirmed the stay of arrest of the applicants and had issued further direction for conclusion of the trial proceedings. Insofar as the arrest of the applicants is concerned the stay had been made absolute by the use of the word 'confirmed'.

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Further directions issued by the Supreme Court requiring the applicants to appear before the learned trial court were only for expeditious disposal of the trial. In this regard, the applicants had been given further liberty to apply for exemption.

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It is thus the submission of Sri Tiwari that the two directions issued by the Supreme Court are not inter-dependent, rather than they are independent. Insofar as the arrest of the applicants is concerned that direction was made absolute and it was left to the learned trial court to monitor that the applicants may continue to participate in the proceedings.

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It has been submitted that this position was further clarified by this Court in its order dated 11.04.2018 wherein this Court specifically provided one month time to the applicants to seek extension of time from the learned trial court for their appearance. Such direction is stated to be contained in the penultimate paragraph of the order dated 11.04.2018.

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Sri Ratnesh Nandan Singh, learned AGA for the State on the other hand submits that in the first place, the Supreme Court had not provided for indefinite stay of arrest of the applicants. The entire order dated 15.11.2017 has to be read in entirety.

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Thus, while in the first place, the arrest of the applicants had been stayed. However, the proceedings in the trial had been allowed to be continued and for that purpose, the presence of

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the applicants was necessary. The applicants were therefore required to be present before the learned trial court on 09.01.2018 and thereafter, it may have been open to them to seek exemption for further appearance. However, having not appeared on the first date itself, the applicants deprived themselves to the benefit of the order passed by the Supreme Court.

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As to the reasons given by the applicants for their nonappearance there can be no discussion at this stage, inasmuch as the same had never been examined by the learned court below. Thus whether the non-appearance of the applicants was inadvertent or deliberate is not an issue to be looked into in the present proceedings. However, this much is clear that the applicants did apply before the learned trial court on 27.02.2018 seeking recall of the order dated 09.01.2018.

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Then, as to the order of this Court dated 11.04.2018, learned AGA would submit that only liberty had been granted to the applicants to apply to the Supreme Court for extension of time and for that purpose the applicants had been further granted one month's time. In fact, once the Court had disposed of the second 482 application with such observation that it was no longer open to the applicants to apply before the learned trial court again.

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Thus, it is submitted that the learned court below has not committed any error in rejecting the application filed by the applicants before the learned trial court as it was not maintainable.

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Having considered the arguments so advanced by learned counsel for the parties, it is seen that the learned court below has not rejected the application filed by the applicants as not maintainable but it has rejected the same on the reasoning that the applicant had yet not applied for bail. It is this reasoning that has given rise to the vehement submission advanced by learned counsel for the applicants that once the Supreme Court and this Court had issued specific direction, it was no longer open to the learned court below to offer such reasoning in defiance of the directions issued by the superior Court.

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That apart, perusal of the order passed by this Court dated 11.04.2018 indicates that the Court had first held that the learned court below has perfectly justified in issuing the nonbailable warrant since the applicants did not appear before the learned court below concerned on the date fixed by the Supreme Court. It was further observed that the learned trial court was not authorised to extend the time for appearance

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before it, since that time had been fixed by the Supreme Court.

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In light of such clear observation made in the order dated 11.04.2018, it is difficult to accept the submission advanced by learned counsel for the applicants that the observation made in the penultimate paragraph of that order directs the applicants to apply before the learned trial court for extension of time. If such were the purport of the order, it would become self contradictory.

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In view of such decision made by this Court, it is not open to the applicants in the present application to contend that they could have applied to the trial court for extension of time.

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However, it cannot be lost sight of that the applicants had applied to the learned trial court within a period of one month from 11.04.2018 clearly indicating that the applicants had perhaps misread the order dated 11.04.2018.

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Normally, the court would leave to the applicants to face the perils of such mis-reading. However, in view of the fact that the applicants are admittedly in-laws of Jyoti and had set up a case that they were living separately from said Jyoti and her husband Abhishek Tiwari, then in view of the judgement of the Suprme Court in the case of Geeta Mehrotra Vs. State of U.P. and Others reported in 2012 (10) ADJ 464 the applicants are to be dealt with in the manner provided by the Supreme Court.

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At the same time, there survives no scope to this Court to provide for extension of time granted by the Supreme Court in view of the earlier order dated 11.04.2018 in Application U/S 482 Cr.P.C. No. 9645 of 2018.

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Considering the above, it is left open to the applicants to apply for extension of time from the Supreme Court, if they are so advised.

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In the entirety of the facts and circumstances of the case as noted above, non-bailable warrant that had already been issued against the applicants and are at an advanced stage of execution shall be kept in abeyance for a period of one month and no more from today.

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In view of the above, the present application is disposed of.

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Order Date :- 3.7.2018 Lbm/-

Gopi Nath Tiwari and Another v. State of U.P. and Another

Case brief

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Gopi Nath Tiwari and Another v. State of U.P. and Another

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