Allahabad High Court
Mahmood Ahmad And Another vs State Of U.P And Another on 3 April, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- APPLICATION U/S 482 No. - 41363 of 2022
Applicant :- Mahmood Ahmad And Another
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Ram Sajiwan Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Heard Mr. Ram Sajiwan Mishra, learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by applicants to set aside the order dated 04.10.2022 passed by Additional Chief Judicial Magistrate, Court No.1 Bijnor in Criminal Case No.164 of 2013 in Criminal Case No.164 of 2013 arising out of Case Crime No.51 of 2002, under Sections 420, 467, 368, 471 IPC, Police Station Rehri, District Bijnor and remand the matter to the Chief Judicial Magistrate to decide the Application No.37B as fresh.
Submission of learned counsel for the applicant is that the applicant no.1 was retired from the post of Lekhpal whereas the applicant no.2 was retired from the post of Amin. After retirement, 10 FIRs have been lodged against the applicants under Sections 420, 467, 468, 471, 201 and 120-B IPC and after investigation, charge sheet has been submitted against the applicants under the above mentioned sections but in one case i.e. Case Crime No.121 of 2002 police has submitted final report exonerating the applicants. Further submission is that after submission of charge sheet the learned Magistrate has taken cognizance. The applicants have been convicted in Case Crime No.166 of 2002, under Sections 420, 467, 468, 471, 474, 409, 201 and 120-B IPC in Session Trial No.22 of 2011 vide judgment and order dated 19.07.2011 against which appeal has been filed by the applicants before this Court in which the applicants are on bail and the appeal is still pending. Further submission is that after conviction, second trial has been started, therefore, the applicants have preferred second discharge application before the learned Magistrate, which was rejected vide order dated 04.10.2022 on the ground that the applicants have earlier moved discharge application which was rejected on 26.02.2011. Further submission is that the ground for rejection of discharge application cannot be sustained in the eye of law because after the year 2011 certain facts and circumstances have been changed, therefore, second discharge application has been filed seeking discharge from the trial of subsequent consolidated offences, which does not bar. The subsequent application has been moved on the basis of different ground but the learned Magistrate did not consider the new ground taken in the subsequent discharge application as well as age factor of the applicants and in a routine and arbitrary manner, rejected the discharge application without applying its judicial mind. Further submission is that if the offence is same, second trial cannot be commenced, as such, the impugned order suffers from manifest errors and the same is liable to be set aside. He also pointed out certain documents in support of his contention.
On the other hand, Mr. R.P. Mishra, learned Additional Government Advocate has vehemently opposed and has submitted that against the order of conviction, appeal is pending before this Court and the applicant is remedy to make an application before the appellate court under Section 386 (e) cr.p.c. for amendment or any consequential or incidental order that may be just or proper. At this belated stage, no relief can be granted.
After having heard the learned counsel for the parties present and perused the impugned order as well as the material brought on record, I am of the view that the impugned order is based upon relevant considerations and supported by cogent reasons. The impugned order does not suffer from any, illegality, infirmity or jurisdictional error and is based upon relevant considerations and supported by cogent reasons, hence, requires no interference by this Court. The application lacks merit and the same is hereby dismissed.
It is, accordingly, dismissed.
Order Date :- 3.4.2023
Ajeet
