Allahabad High Court
Praveen Kumar Singh vs State Of U.P. on 7 July, 2021
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL APPEAL No. - 1720 of 2019
Appellant :- Praveen Kumar Singh
Respondent :- State of U.P.
Counsel for Appellant :- Ramakar Shukla
Counsel for Respondent :- G.A.
Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the appellant, learned A.G.A. and perused the record.
Under challenge is the judgment and order dated 15.7.2019 passed in Misc. Case No.289 of 2019 State versus Praveen Kumar under section 350 CrP, P.S. Dhammaur, district Sultanpur whereby the appellant has been convicted under section 350 CrPC and sentenced with fine of Rs.50/-, with default provision.
Appellant's counsel submits that a first information report No.245 of 2016 was lodged under sections 406, 420 I.P.C., P.S. Dhammaur, district Sultanpur by Ramyagya Dubey in pursuance to order passed on the application under section 156(3) CrPC against co-owner of tractor Kanchan Tiwari. During the course of investigation, the tractor was recovered and seized by the police authorities. A release application was filed by Kanchan Tiwari before the competent court which was allowed vide order dated 1.12.2018 (Annexure-3).Copy of release order was handed over at police Dhammaur.
Against order of release, a revision was filed by Ramyagya Dubey on 3.1.2019. During pendency of the revision, revisionist moved an application, Annexure-6, to call report from concerned police station. On 21.6.2019, the police submitted its report, Annexure-7. The revisional court after perusing the report, summoned the appellant in person on 21.6.2019, in pursuance whereof the appellant has appeared and submitted his report, in court. On the next date, i.e. 2.7.2019, the case was adjourned to 3.7.2019 on the request of opposite party.
It is submitted that the appellant was transferred on 3.7.2019 from P.S. Dhammaur to P.S. Kurebhar, district Sultanpur vide order, Annexure-8, hence he could not appear before the Court on the said date.
On 3.7.2019, since the appellant could not appear, the Court issued a summon against the appellant, fixing the next date as 4.7.2019. On 4.7.2019, proceedings under Section 350CrPC were initiated against the appellant, although he was not a witness. Case under section 350 CrPC was fixed on 9.7.2019, on which date, the appellant could not appear as he had to participate in a meeting with higher police officer in compliance of order (Annexure-10) passed by Superintendent of Police, Sultanpur dated 6.7.2019.
In response to the show cause notice dated 4.7.2019, the appellant submitted his reply vide Annexure-11 wherein the appellant took his defence and explained the reason of his non-appearance on the date fixed. However, without considering the explanation of the appellant, the order under appeal has been passed arbitrarily and illegally.
Learned counsel for the appellant submits that the appellant was not a witness in the criminal revision. Order sheet of the case has been filed. It is further contended that the power under section 350CrPC can be invoked by the criminal court only for summoning a witness and appropriate punishment can be awarded for non appearance of the witness in disobedience of the summon. It is submitted that since the appellant was not a witness, the impugned order passed under Section 350 CrPC is per se illegal and without jurisdiction.
A bare reading of the provisions of Section 350 CrPC reveals that the power under section 350 CrPC can be invoked only for punishing a witness of a case in case he does not appear in obedience to the summon issued by the court of competent jurisdiction. As the appellant was not a witness, the order impugned could not have been passed convicting the appellant by the revisional court.
In addition to the legal provision, a perusal of the record shows that the appellant had appeared in person on 21.6.2019 in compliance of order dated 7.6.2019 and submitted his report before the revisional Court. He was transferred to Kurebhar police station vide order dated 3.7.2019 of higher authority and as such, it appears that the summon issued to him could not be served on him. Thereafter, he had to proceed to attend the meeting in pursuance to order passed by Superintendent of Police, Sultanpur, at Ayodhya.
Learned revisional court without considering these facts and the legal provision has proceeded to summarily try the appellant arbitrarily and illegally.
Keeping in view the above facts and circumstances of the case, including the legal provision provided in Section 350 CrPC, I am of the view that the judgment and order under appeal is arbitrary, illegal and has been passed without application of mind.
The appeal, thus, is allowed. The order dated 15.7.2019 (supra) is set aside. The deposit of Rs.50/- by the appellant in pursuance to the order impugned be released in favour of the appellant immediately on production of a certified copy of this order.
Let lower court record be sent back to the court below.
Order Date :- 7.7.2021
kkb/
