Allahabad High Court
Dr Smt. Suraksha Tyagi vs State Of U.P. Andanother on 12 April, 2022
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 91
Case :- APPLICATION U/S 482 No. - 2985 of 2022
Applicant :- Dr Smt. Suraksha Tyagi
Opposite Party :- State Of U.P. Andanother
Counsel for Applicant :- Ram Pratap Yadav,Devbratt Yadav
Counsel for Opposite Party :- G.A.,R.P.S. Chauhan,Tarun Jha
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
This criminal misc. application U/s 482 Cr.P.C. is filed to quash the order dated 15.12.2021 passed by Chief Judicial Magistrate, Jhansi in criminal case no.2554 of 2018 (State vs. Dhirendra Tiwari) arising out of case crime no.304 of 2018 under Section 387, 323, 325, 504, 506 IPC, P.S. Navabad, District Jhansi.
In case crime no.304/2018 U/s 387, 323, 325, 504, 506 IPC, P.S- Navabad, District Jhansi. The opposite party no.2 filed a criminal misc application no.46135 of 2018 for quashing the summoning order dated 24.10.2018. This Court was pleased to stay the proceedings vide order dated 22.12.2018. The aforesaid application was dismissed for non prosecution on 19.07.2019. The order dated 19.07.2019 was produced before the concerned Magistrate and thereafter the concerned Magistrate proceeded further and issued process against the accused persons. Thereafter the opposite party no.2 filed a recall application for recalling the order dated 19.07.2019 and it was recalled vide order dated 04.03.2020 and application U/s 482 Cr.P.C. No.46135 of 2018 was restored to its original number.
The submission of learned counsel for the applicant is that vide order dated 04.03.2020 only restoration application has been allowed and interim order has not revived. The opposite party no.2 is not appearing in the trial court nor he is complying the order passed by C.J.M., Jhansi. It is further contended that applicant having no option filed a criminal misc. application U/s 482 Cr.P.C. No.11450 of 2021 for deciding the criminal case expeditiously and this Court was pleased to direct the trial court to decide the matter expeditiously and preferably within six months vide order dated 04.10.2021. Thereafter the opposite party no.2 filed a recall/ restoration application no.1/21 passed in criminal misc. application No.11450 of 2021 in which the order dated 04.10.2021 was recalled vide order dated 23.11.2021. Thereafter the opposite party no.2 filed a recall application for recall the order of issuing process against them and by the impugned order, the learned Magistrate has recalled all the process issued against accused persons. Learned counsel submitted that in view of the order dated 08.10.2021 passed by the Apex Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd and another vs. Central Bureau of Investigation, there is no interim order operative. Once the order has not been extended, it cannot be presumed that order is operative and, therefore, the order passed by the trial court recalling process of NBW/ 82 Cr.P.C. is unjust and against the judgment passed by the Hon'ble Apex Court. Hence the impugned order dated 15.12.2021 is not sustainable in the eye of law.
Learned counsel for the opposite party no.2 submitted that the application U/s 482 Cr.P.C. was dismissed in default on 19.07.2019. At that time, the interim order was in operation. Thereafter, the opposite no.2 filed a recall application and order dated 19.07.2019 by which the application U/s 482 Cr.P.C. was dismissed for want of prosecution was recalled the application was restored to its original number. Learned counsel vehemently contended that with the restoration of the application, the interim order dated 22.12.2018 has also stand revived. Learned Magistrate has rightly recalled all the process issued against the opposite party no.2. Learned counsel also contended that as the application U/s 482 No.46135 of 2018 is still pending, this second petition is not maintainable. He also contended that the opposite party no.2 has got the order of expeditious disposal of the case concealing the facts that the restoration application has been allowed. When the matter came into notice of opposite party no.2, he moved the application for recall of the said order and this Court vide order dated 23.11.2021 has recalled the aforesaid order. In compliance of the aforesaid order, the learned Magistrate has recalled the process issued against the opposite party no.2/ accused persons. So there is no illegality in the impugned order.
It is undisputed that application No.46135 of 2018 was filed in which this Court was pleased to stay the proceedings vide order dated 22.12.2018. The aforesaid application was dismissed for non prosecution on 19.07.2019 thereafter, the restoration application was filed by the opposite party no.2 which has been allowed on 04.03.2020 and the application U/s 482 No.46135 of 2018 has been restored to its original number vide order dated 22.12.2018. The proceeding was stayed till the next date of listing. On the next date of listing, the application was dismissed for non prosecution and the interim order has not been extended by any specific order. After restoration application was allowed on 4.03.2020, the opposite party no.2 has not moved any application for extension of stay and there is no extension of said order. Further in view of the case of Asian Resurfacing of Road Agency Pvt. Ltd (Supra) the life of the interim order shall be deemed to be for six months unless it is extended with a specific order. The learned trial court only on the basis of facts that the order dated 04.10.2021 which was passed for expeditious disposal of the case was recalled on 23.11.2021 has recalled all the process issued against the opposite party no.2. This argument of learned counsel for the applicant that this second application U/s 482 Cr.P.C. is not maintainable also cannot be accepted because this application has been moved against order dated 15.12.2021 which is distinct order.
Considering the peculiar facts of the case, this application U/s 482 Cr.P.C. is disposed of with a direction that the opposite party no.2 may file an application for extension of interim order in application U/s 482 Cr.P.C. No.46135 of 2018 which is still pending. The learned trial court shall provide an opportunity to the opposite party no.2 for filing any interim order failing which the trial court shall be free to proceed further in the matter. To enable the opposite party no.2 to move application for extension and getting interim order extended three months time is provided to him.
For a period of three months, the learned trial court shall not proceed in the matter against the applicant.
Order Date :- 12.4.2022
C. MANI
