Allahabad High Court
Kamlesh Gupta @ Kamlesh Faitar vs State Of U.P. And Another on 8 July, 2019
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- APPLICATION U/S 482 No. - 25965 of 2019
Applicant :- Kamlesh Gupta @ Kamlesh Faitar
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Narendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
This Application U/s 482 Cr.P.C. has been filed with a prayer for quashing of the order of N.B.W., 82/83 Cr.P.C. dated 26.02.2019, passed by learned ACMM-Ist, Kanpur Nagar in Case No. 67951 of 2017 (State Vs. Kamlesh Gupta @ Kamlesh Faitar), arising out of Case Crime No. 83 of 2013, under Sections 147, 148, 149, 323, 504, 506, 307, 336 read with Section 34 I.P.C., P.S. Kakadev, pending in the Court of learned ACMM-Ist Kanpur Nagar.
Learned counsel for applicant argued that in this very case crime number an order has been passed by coordinate Bench of this Court in Application U/s 482 Cr.P.C. No. 24705 of 2019 on 28.06.2019 for consideration of discharge application moved through counsel before trial court within one month from the date of order and the same relief has been claimed.
Learned A.G.A. has vehemently opposed the aforesaid prayer with contention that first information report of Case Crime No. 83 of 2013 was lodged for an occurrence of 11.4.2013 at 6 P.M. on 15.4.2013 at 20.55 P.M. upon report of Balkrishna Mishra against Kamlesh, Puttan Diwakar, Puttu Srivastava, Kaushal Srivastava, Umesh Srivastava, Chhotey Lal, Munnu Lal, Rahul Kumar, Santosh Gautam, Sunil Diwakar, Mishrilal, Dheeraj Bangali and 15-20 unknown males and females. After investigation charge sheet has been filed in which cognizance has been taken and owing to non appearance of those accused persons non bailable warrant followed by 82/83 Cr.P.C. has been issued by magistrate. This proceeding is taken by applicant to hamper above proceeding, which is pending since 2013. Hence, the same be rejected.
Perusal of order of coordinate Bench (supra) reveals that this Court has directed for moving discharge application before the trial Court and trial Court in given case, in which Section 307 I.P.C. is exclusively triable by Court of Sessions Judge, is Court of Sessions Judge, and there will be trial when file is being committed to Court of Sessions. Admittedly, in present case till today committal is not there rather for ensuring presence magistrate has issued process in form of non bailable warrant and in case of failure proclamation under Section 82/83 Cr.P.C., hence unless accuse appears before magistrate and file is being committed to Court of Session, there cannot be a trial. Hence, request of learned counsel for applicant is not maintainable.
In view of the submission made by the learned counsel for the applicant, the application so far as it relates to seeking quashing of the N.B.W., 82/83 Cr.P.C. dated 26.02.2019 stands dismissed.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his 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.
For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid observations, this application is finally disposed off.
Order Date :- 8.7.2019
NS
