Disposed

Bhupendra v. State of U.P. and Anr.

Allahabad HC9 Oct 2018A482/35447/2018

Case brief

AI extract

What is this about?

The High Court disposed of a Section 482 application challenging a summons under Section 319 Cr.P.C. Found the trial court exercised jurisdiction properly after complying with a prior High Court direction. Allowed the applicant to surrender within 45 days and apply for bail, offering protection for that period against coercive measures.

What did the court decide?

Applicant allowed to surrender within 45 days and apply for bail; interim protection from coercive action granted.

Bhupendra Vs State of U.P. and Anr. — Bail and Remand | Allahabad HC (2018)

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Court No. - 16

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Case :- APPLICATION U/S 482 No. - 35447 of 2018

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Applicant :- Bhupendra Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Lakshman Singh Counsel for Opposite Party :- G.A.

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Hon'ble Ajay Bhanot,J.

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Heard learned counsel for the applicant and learned AGA for the State.

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The applicant has assailed the order dated 02.08.2013 passed by the court of Additional Sessions Judge /FTC-1, Jalaun in S.T. No. 118 of 2008, State Vs. Narayan Das and Others, arising out of Case Crime No. 62 of 2006, under Sections 308, 323, 325, 504, 506 I.P.C. read with Section 34 I.P.C.,Police Station Ait, District Jalaun, summoning the applicant under Section 319 Cr.P.C. to face trial. The applicant had been summoned on an earlier occasion too by the learned trial court. At that point of time, the applicant approached this Court by instituting a writ petition being Criminal Misc. Writ Petition No.3774 of 2011, Bhoopendra Vs. State of U.P. and Another. This Court decided the said writ petition by order dated 25.02.2011. The operative portion of the order dated 25.02.2011 is reproduced hereunder:

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"I have examined the submissions advanced by the learned counsel for the parties, perused the impugned order and the other materials brought on record as well as the case law relied upon by the learned counsel for the petitioner in support of his submissions.

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In Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (58) ACC 254 , the Apex Court had held that before a Court exercising its discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned, is in all likelihood, liable to be convicted.

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In Sarabjit Singh & another Vs. State of Punjab & another, (2010) 2 Supreme Court Cases (Cri) 141 , the Apex Court held that for exercising extra ordinary jurisdiction under section 319 Cr.P.C., the Courts are required to apply stringent tests; one of the test being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned and mere existence of a prima facie case may not serve the purpose.

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Since learned trial court has not recorded his satisfaction as above, the impugned order cannot be sustained and is liable to be set aside.

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The writ petition is allowed and the impugned order dated 30.9.2010 is set aside. The learned Additional Sessions Judge, 3rd/ Sessions Judge, Jalaun

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at Orai is directed to decide the application under Section 319 Cr.P.C. afresh in accordance with the directions of the Apex Court in the cases of Mohd. Shafi and Sarabjit (supra).

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The petitioner undertakes to file a certified copy of this order before the court concerned within two weeks from today."

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The learned trial court in compliance of the order dated 25.02.2011 passed by this Court, has applied its mind afresh and has once again summoned the applicant under Section 319 Cr.P.C. A perusal of the order passed by the learned trial court discloses that the learned trial court has accorded full satisfaction to the issues as required by the Hon'ble High Court. The learned trial court has specifically arrived at a satisfaction that there exists a possibility that the accused so summoned in all likelihood, can be convicted on the foot of the evidence against him, in case, the same goes unrefuted. There is no infirmity in the order passed by the learned trial court.

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Faced with this, learned counsel for the applicant submits that the applicant is willing to surrender before the court below and apply for bail. He recasts his relief accordingly. Learned counsel for the applicant submits that he does not press reliefs sought for in the instant application.

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Considering the facts and circumstances of the case and submissions of the learned counsel for the applicant, it is open to the applicant to surrender before the learned trial court within a period of 45 days.

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In case, the applicant surrenders and applies for bail, his bail application shall be considered and decided by the learned trial court in accordance with law laid down by this Court in the case of Amrawati and another Vs. State of U.P. reported at 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 45 days from today or till the date the applicants surrender before the trial court whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the court below within the stipulated period, the Trial Court shall proceed against the applicant in accordance with law and this interim protection shall stand recalled automatically.

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The application under Section 482 Cr.P.C. is disposed of. Order Date :- 9.10.2018 Dhananjai

Bhupendra v. State of U.P. and Anr.

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Bhupendra v. State of U.P. and Anr.

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