Disposed

Pintoo Agrawal and 4 Others v. State of U.P. and Another

Allahabad HC16 Dec 2019A227/9256/2019

Case brief

AI extract

What is this about?

Where petitioners approached under Article 227 challenging orders rejecting a discharge application and dismissing a revision due to counsel's absence, the court refused to quash the impugned orders but permitted bail consideration if petitioners surrender within 30 days.

What did the court decide?

Prayer for quashing refused; no coercive action for 30 days if petitioners surrender and apply for bail within that period.

Pintoo Agrawal and 4 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 66

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Case :- MATTERS UNDER ARTICLE 227 No. - 9256 of 2019

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Petitioner :- Pintoo Agrawal And 4 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Araf Khan,Atiqur Rahman Siddiqui Counsel for Respondent :- G.A.,Yadvesh Yadav,Yadvesh

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Hon'ble Rajul Bhargava,J.

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Heard Sri L.R. Khan, Sri Araf Khan, learned counsels for the petitioners, Sri Rajesh Yadav, learned counsel for the respondent no.2 as well as learned A.G.A. for the State and perused the material available on record.

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The present writ petition has been filed by the petitioners with the prayer to set-aside the impugned order dated 21.8.2019 passed in Criminal Revision No. Nil of 2019 and the order dated 14.2.2019 passed by Additional Chief Judicial Magistrate, Bulandshahar, arising out of Case Crime No.0971 of 2018, under Sections 147, 354, 354-Ka, 323, 376, 511, 506 I.P.C., Police Station- Kotwali Saher, District Bulandshahar.

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The brief background leading to filing the present writ petition is that the petitioners challenged the impugned charge-sheet dated 30.8.2018 in the aforesaid crime number in Criminal Misc. Application (U/s 482 Cr.P.C.) No.39516 of 2018. The said application was disposed of by the Court vide order dated 5.12.2018 as under:-

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"Heard learned counsel for the petitioner.

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The submission of learned counsel for the petitioner is that no case under Section 376 is made out and the petitioner wants to move a discharge application.

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Looking into the matter the petitioner is permitted to move a discharge application through counsel within a period of ten days. The said application shall be considered by the trial court within a period of six weeks from the date of production of certified copy of the order.

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Till the decision on the discharge application no coercive action shall be taken against the petitioner.

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With the above observation the application is disposed of."

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From the tenor of the order passed by the co-ordinate Bench of this Court, it appears that the Court was not inclined to quash the proceedings under challenge and thus learned counsels conceded their prayer to the extent that they may be permitted

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to file a discharge application. However, the Court granted liberty to the petitioners to file discharge application through counsel within ten days to be considered by the "trial court" within a period of six weeks.

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Admittedly, the discharge application was filed by the petitioners in the court of C.J.M., Bulandshahar pursuant to the aforesaid order which was not the trial court and the discharge application was being claimed by the petitioners inter alia for the offences under Sections 376/511 I.P.C. which is triable by the court of Sessions and under the aforesaid sections and other sections the cognizance was taken by the court below and therefore, the discharge application was rejected by the Additional Chief Judicial Magistrate, Bulandshahar vide order dated 14.2.2019. The said order was challenged in revision, however, it appears that the same was not pursued by the counsel of petitioners and the same was dismissed by the Session Judge vide impugned order dated 21.8.2019 on the ground that the counsel for the petitioners is continuously absent and it appears that he does not want to press the revision.

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Learned counsels for the petitioners have submitted that the learned Magistrate has illegally rejected the discharge application in utter defiance of the orders passed by the Court on 5.12.2018, inasmuch as, when the petitioners subjected themselves to the jurisdiction of learned Magistrate it would amount that they were in custody and the Magistrate instead of rejecting the discharge application should have committed the case to the court of Sessions who could have taken cognizance under Section 193 Cr.P.C. and would have entertained the discharge application as directed by the Court.

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In my opinion, the submissions raised by learned counsel for the petitioners is wholly misconceived and unfounded. It is not disputed that the petitioners never appeared before the court and subjected themselves to the custody of court and applied for bail. The view taken by the learned Magistrate that it had no jurisdiction to deal with the discharge application is perfectly justified and legal. He has not committed any error of law apparent from the face of record. As noted above, the revision filed by the petitioners against the order passed by the learned Magistrate was not even pressed before the Sessions court and have now approached for setting aside the impugned order under the supervisory writ jurisdiction under Article 227 of Constitution of India.

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The prayer for quashing the orders impugned is hereby refused. However, it is directed that if the petitioners appear and

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surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided 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 30 days from today or till the petitioners surrender and apply for bail whichever is earlier, no coercive action shall be taken against them. However, in case, they 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 observations, the present writ petition is finally disposed of.

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Order Date :- 16.12.2019 Vikas

Pintoo Agrawal and 4 Others v. State of U.P. and Another

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Pintoo Agrawal and 4 Others v. State of U.P. and Another

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