PRABHU DAYAL GANDHI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Prabhu Dayal Gandhi v. State Of U.P. And Others - APPLICATION U/s 482 No. 13168 of 2005 [2005] RD-AH 5800 (16 November 2005)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 49

Criminal Misc. Application No. 13168 of 2005

Prabhu Dayal Gandhi Vs. State of U.P. and others.

Hon'ble M. K. Mittal, J.

Heard Sri Manish Tiwari, learned counsel for the accused applicant, Dr. Arun Srivastava learned counsel for the opposite party, learned A.G.A. And perused the record.

Application has been filed for recall/modification of the order dated 19.9.2005 passed by this bench in Criminal Misc. Application No. 13168 of 2005 under Section 482 Cr.P.C. whereby learned Sessions Judge, Bareilly was directed to expedite the trial of the Criminal Case Crime no. 866 of 2005 under Sections 304 B, 498A/34 IPC and Section 3/4 D.P.Act, P.S. Premnagar, District Bareilly. Application for recall has been made on the ground that this case has not yet been committed to the Court of Sessions and Prabhu Dayal Gandhi applicant of that case concealed the facts and did not come with clean hands and the above noted order was passed. The applicant has further contended that there is cross version and an application under Section 156(3) Cr.P.C. has also  been filed by Nitesh Duggal, the present applicant and that matter is still pending.

It has further been contended that application was filed by opposite party Prabhu Dayal with oblique motive to stall the case of the applicant. According to him the cross cases are to be decided together as per the settled law. The opposite party has filed counter affidavit and it has been contended that there is no cross version and the case under Section 156 (3) Cr.P.C. has been registered only in Peshbandi. It has further been stated that by means of earlier application, the higher authorities of the Sessions Division, Bareilly were asked to conclude the trial expeditiously.

I have considered the arguments as advanced by the learned counsel for the parties.

The contention of the learned counsel for the accused applicant that the opposite party concealed the correct facts and did not come with clean hands is correct  as the case Crime No 866 of 2005 has not yet been committed to the Sessions. The earlier application was made with a specific prayer  of concluding the trial of case Crime No. 866 of 2005. The word crime was added subsequently by the applicant vide Correction Application moved in that application. It clearly shows that at the initial stage Prabhu Dayal concealed the correct facts, and had he mentioned  the word Crime  along with case no. at the initial stage, the order dated 19.9.2005 might not have been passed. But the facts as presented and the arguments as advanced at that stage shows that Sessions Court was not seized of the matter and therefore it could not be directed to expedite the hearing of the case. As far as the question of Cross case is concerned, it is not very material in this proceedings as the main prayer for recall of the order dated 19.9.2005 is being allowed.

Considering the above facts, I come to the conclusion that opposite party Prabhu Dayal Gandhi (applicant of case No. 13168 of 2005) did not come with clean hands and correct facts and the order dated 19.9.2005 is liable to be recalled. The application for recall is allowed. The order dated 19.9.2005 passed in Criminal Misc. Application No. 13168 of 2005 is hereby recalled. The Criminal Misc. Application  No. 13168 of 2005 is accordingly dismissed.

Dated: 16.11.2005

RKS/13168/05

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