Allahabad High Court
Rafat Khan @ Kamran vs State Of U.P. Thru. Prin. Secy. ... on 1 November, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- APPLICATION U/S 482 No. - 7805 of 2022
Applicant :- Rafat Khan @ Kamran
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. .Home, Civil Sectt. Lko. And Another
Counsel for Applicant :- Mohd. Waris Farooqui
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Mohd. Waris Farooqui, learned counsel for the applicant and learned A.G.A. for the State as well as perused the record.
The instant application under Section 482 Cr.P.C. has been moved by the applicant namely Rafat Khan @ Kamran with a prayer to quash the entire proceedings of Case No.372 of 1993 (State Vs. Raisul Hasan and others) pending in the Court of Special Judge, Gangsters Act, Lucknow related with Case Crime No.399 of 1992, under Section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986, Police Station Kotwali Kaiserbagh, Lucknow including the impugned order dated 02.03.2000 passed therein whereby the court concerned has issued non bailable warrant against the applicant under Section 82/83 Cr.P.C.
Learned counsel for the applicant while drawing attention of this Court towards the charge sheet placed as annexure no.4 to the instant application submits that the Investigating Officer after conclusion of the investigation had submitted the charge sheet against two accused persons namely Raisul Hasan @ Alam and Sajid, however, no charge sheet was submitted against the instant applicant and in the fifth column of the charge sheet, it was shown that the applicant has become an absconder.
It is further submitted that the trial court vide order dated 02.03.2000 had issued non bailable warrant and proceedings of Section 82/83 Cr.P.C. against the co-accused Raisul Hasan @ Alam and the instant applicant while acquitting the co-accused Sajid.
It has also been submitted that without submission of charge sheet against the applicant, the trial court could not issue any process for compelling the attendance of the applicant before it and, thus, a serious illegality has been committed by the trial court. It is further submitted that summoning order has also not been passed by the trial court against the applicant and, therefore, without taking cognizance and without issuing any summoning order, coercive process has been issued against the applicant and the same be quashed.
Learned A.G.A. on the other hand submits that the applicant is an absconder as is evident by the description made by the Investigating Officer in the charge sheet and the name of the applicant has found place in column no.2 of the charge sheet which is earmarked for those accused persons who have become absconder, therefore, even if it is assumed that cognizance has not been taken and process has not been issued, it is always open to the Magistrate or the Special Court to issue coercive process against the applicant on an application moved by the Investigating Officer.
Having heard learned counsel for the parties and having perused the record, it is evident that the applicant has chosen to bring on record the order of date 02.03.2000 only and no order sheet subsequent to this order has been placed on record nor the judgment of the trial court dated 02.03.2000 whereby the co-accused Sajid is stated to have been acquitted has been placed on record for perusal of the Court. What is evident from the limited material placed on record by the applicant is that while charge sheet was submitted by the Investigating Officer about 22 years ago against the two accused persons namely Raisul Hasan @ Alam and Sajid, the instant applicant namely Rafat Khan @ Kamran was shown as absconder.
It is admitted by the learned counsel for the applicant that the applicant has still not surrendered and is not confined either any police custody or judicial custody with regard to the instant case, therefore, there is every occasion for this Court to presume that the applicant is still an absconder, therefore, in the considered opinion of this Court, no illegality appears to have been committed by the trial court while issuing the coercive process for procuring the presence of the applicant.
Having regard to all the facts and circumstances of the case, keeping in view the fact that order sheet pertaining to the date 02.03.2000 has only been produced before the Court, does not find any illegality or to say any irregularity in the order dated 02.03.2000 of the trial court whereby the coercive process for the presence of the applicant has been issued by the trial court, therefore, the application is devoid of merits and is, hereby, dismissed.
At this juncture, learned counsel for the applicant submits that he may be provided an opportunity to appear before the trial court for the purpose of obtaining bail.
No need to say that it is always open to an accused to appear before the trial court and apply for bail and if such an application is moved by any accused to procure bail, it would always be the duty of every criminal court to dispose of the same at the earliest.
Order Date :- 1.11.2022
Saurabh
