Allahabad High Court
Jagdish Kumar vs State Of U.P. & Another on 12 May, 2014
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 21/A.F.R.
Case :- CRIMINAL REVISION No. - 936 of 2003
Revisionist :- Jagdish Kumar
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- V.P. Srivastava,Nitin Gupta
Counsel for Opposite Party :- Govt.Advocate,G.S.Hajela,Nazrul Islam Jafri
Hon'ble Mrs. Vijay Lakshmi,J.
Heard Shri Nitin Gupta, learned counsel for revisionist and Shri N.I. Jafri, learned counsel for C.B.I. and perused the records.
This revision has been directed against the summoning order dated 17.1.2003 passed by Special Judicial Magistrate, C.B.I., Ghaziabad in Case No.14 of 2003 C.B.I. vs. M/s. Glitters Overseas & others) whereby learned Special Magistrate, C.B.I. has issued non bailable warrant against the revisionist for offence under section 120-B r/w Sections 420, 471 I.P.C.
The order impugned shows the learned Magistrate after considering the fact that sufficient prima facie evidence was available on record to take cognizance against the accused persons/(revisionist) summoned them under section 120-B r/w Sections 420, 471 I.P.C. and at the same time, considering the gravity of the offence, issued non bailable warrant against the revisionist.
Learned counsel for revisionist has questioned the legality of the aforesaid order vehemently arguing that the lower court has acted with material irregularity while issuing non bailable warrant straight away against the revisionist in clear violation of well settled legal position that non bailable warrant should be issued only after exhausting all the procedures gradually by issuing summons at first then bailable warrants and thereafter non bailable warrants which should be issued only if the accused fails to appear in court. Learned counsel for revisionist has further argued that no offence under Sections 420, 471 I.P.C. has been made out against the revisionist but the learned lower court without considering the factual aspects of the matter has passed the order mechanically in a routine manner and without application of judicial mind which is liable to be set aside.
Per contra learned counsel appearing for C.B.I. has contended that the learned lower court has passed a well reasoned and legally sound order which does not require any interference by this court.
From the perusal of material on record and looking into the facts of the case as mentioned in detail in the order impugned itself, it cannot be said that no offence is made out against the revisionist. All the submissions made in the memo of revision, relate to the disputed questions of fact, which cannot be adjudicated upon by this revisional court. At the stage of summoning an accused after taking cognizance of the offence, only prima facie satisfaction of the Magistrate is required, the defence of the accused cannot be considered at this stage. The factual aspect about the culpability of revisionist is to be decided during trial after recording evidence of the parties. Prima facie, cognizable offence appears to have been committed and there appears sufficient grounds for proceeding against the revisionist. However the impugned order shows that the court below has straight away issued non-bailable warrant against the revisionist and thereby it has committed error of law which needs to be rectified.
The revision deserves to be partly allowed.
The impugned order dated 17.1.2003 is confirmed so far as it relates to taking of cognizance against the accused persons under sections 120-B, 420, 471 IPC and summoning them to face trial for their involvement under aforesaid sections of IPC but that part of the order which pertains to issuance of non bailable warrant against the revisionist straightaway is set aside subject to condition that revisionist shall surrender before the court below within 30 days.
Further, it is provided that if the revisionist appears and surrenders before the court below within the stipulated period and applies for bail, then his prayer for bail shall be considered as expeditiously as possible in accordance with law laid down by Full Bench of this Court in case of Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 390 as affirmed by Hon'ble Supreme Court in Lal Kamlendra Pratap Singh vs. State of U.P. And others 2009 (2) Crime 4 SC, after affording the opportunity of hearing to the public prosecutor.
For a period of 30 days from today or till the revisionist surrenders before the court concerned whichever is earlier, no coercive process shall be issued/executed against the revisionist.
Order Date :- 12.5.2014
Ps.
