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Shamsher And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. 3076 of 2007 [2007] RD-AH 2997 (22 February 2007)


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Court No. 48

                    Crl. Misc. Application no. 3076  of 2007

Shamsher and others . . . .  . . . . . . . .  . . .  . . .   . .   . . . .Applicants.


The State of U.P. . . . . . . . . . .  . . . . .  . .. .  . . . . . . . .   .Opp.Parties.                                                                                                                                                                                                                                                


Hon'ble R.K. Rastogi,J.

This is an application under section 482 Cr.P.C. to quash the impugned order  dated 11.1.2007 passed by the Addl. Sessions Judge/Fast Track Court no.2, Azamgarh passed in Sessions Trial no. 18 of 1993 ( State Vs. Ram Bahore ) under sections 147, 148, 149, 323, 352 & 307 I.P.C. police station Rani Ki Sarai district Azamgarh.

Heard learned counsel for the applicants  and learned  A.G.A. for the State.

The facts relevant for disposal of this application are that the aforesaid  sessions trial is pending in the above court and date 11.1.2007 was fixed  in the case. On that date accused Arvind was present  with his counsel, and the remaining accused  Vijay Bahadur, Shamsher, Sarakchand, Subhash, Randhir, Raghunath,  Smt. Radha Devi and  Smt. Salari Devi  were absent. An application for exemption on their behalf was moved, but  the Presiding Officer  of the court concerned  was of the view that  the above case as well as its cross case which were  of the year 1993  were pending in his court for evidence but the accused persons were delaying  the proceedings of the case, hence, he rejected the application for exemption holding that  they were mis-using   bail and cancelled their bail bonds. He took accused Arvind  present in court in judicial custody and sent him to jail and passed orders for issuing non-bailable warrants and processes under sections 82 and 83 Cr.P.C. against  the remaining accused and also issued orders for  issuing notice to the sureties fixing 19.1.2007. Aggrieved with that order  applicants  have filed this application.  

In this petition  complainant Ant Lal has also been impleaded  as O.P. no.2 but since it is a State case there is no necessity to hear  him. The learned counsel for the applicants  submitted that he wants to delete the name of O.P. no.2 and he is permitted to do so.

It is true that  the cases were of the year 1993 and when the aforesaid S.T. and its cross  sessions trial  were pending  in the same court, both these cases should  have been listed  for evidence on the same date in the court  so that  accused as well as witnesses  in  both the cases may appear in the court  and  evidence may be recorded in both the above sessions trials in presence of the parties. The Presiding Officer of the court concerned was of the view the accused  were mis-using the bail and so he cancelled their  bail bonds. He could do so, but there was no provision for taking that accused  into  judicial  custody and sending him to jail, who was present in court. The Presiding Officer  is not justified  in this regard. In such a case the proper order would have been to grant exemption for that date only with a direction to all the accused to appear in person in the  court on the next date further providing that  no request for exemption shall be entertained  on the next date and  non-bailable warrant shall be issued against the defaulting accused, and in this way the delaying tactics  could be lawfully curbed.

It further appears that  on the above date Presiding Officer further passed an order for issuing  non-bailable warrants and processes under sections 82 and 83 Cr.P.C. simultaneously against the accused persons. He again committed  legal  error  because all these processes cannot be issued  simultaneously. The warrant is to be issued  at the first instance and when the accused does not appear in court even after issue of warrant, the process under sections 82  Cr.P.C. can be issued only when there is a report to this effect that he  is absconding.  After issuing proclamation under sections 82  Cr.P.C. the court  has to wait for thirty days from the date of publication of proclamation ,and then attachment under section 83  Cr.P.C. is to be issued. But if  the court is of the view  that the accused is about to                                                          

dispose of  the whole or any part of his property or is about to  remove the whole or any part of his property from the local jurisdiction of the court, the proclamation under section 82  Cr.P.C. and attachment u/s 83 Cr.P.C. can be issued  simultaneously. In such a case, the  the court must be satisfied  on the basis of the  evidence  produced before it that these circumstances exist   and  he has to mention these facts in the order for issuing  processes under sections 82 and 83 Cr.P.C. simultaneously.

In the present case  the learned Presiding Officer of the court  fell in grave legal error by issuing all those processes  simultaneously.

The application under section 482 Cr.P.C. is, therefore,  allowed  to this effect that the order of the Presiding Officer  taking  the accused Arvind in judicial custody and sending him to jail is set aside. Accused Arvind shall be released forthwith in this case on bail  if not wanted in any other case. The order  for issuing processes under sections 82 and 83 Cr.P.C.  against the remaining accused  is also set aside.

The learned counsel  for the applicants submitted that the accused applicants are  ready to appear  before the court below. They are allowed one month's time to appear before the court concerned and during this period execution of non-bailable warrants against them shall remain stayed. After appearance of the accused, the Presiding Officer of the court  may release  the applicants  on taking fresh bail bonds  from them and  then he shall proceed with the trial of the case in accordance with law.




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