Allahabad High Court
M/S Agro Tech India Proprietor ... vs State Of U.P., Thru. Secy. Home, ... on 17 July, 2023
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:46314
Court No. - 12
Case :- APPLICATION U/S 482 No. - 6691 of 2023
Applicant :- M/S Agro Tech India Proprietor Thru. Ashok Kumar Srivastava
Opposite Party :- State Of U.P., Thru. Secy. Home, Deptt., Lko. And Another
Counsel for Applicant :- Hari Narayan Singh
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. As it is evident from the impugned order that there is a legal issue, therefore, it is not necessary to issue notice to respondent no.2, hence, notice to the private respondent is hereby exempted.
3. The present application under Section 482 Cr.P.C is filed with the prayer to quash the impugned order passed dated 28.3.2023 as well as the entire proceeding initiated by the court below concerned in Case No.58/2017 under Sections 138 N.I. Act, Police Station Ashiyana, District Lucknow.
4. Learned counsel for the applicant submits that case in question was filed by the private respondent under Section 138 of N.I. Act, and after evidence on 4.2.2023, the case was listed for final hearing and the counsel for the complainant/opposite party no.2 prayed for adjournment, and with the permission of court below counsel for the applicant concluded his argument. Thereafter, on 14.2.2023, adjournment was again sought by counsel for the complainant and on 21.2.2023, his argument was heard and case was fixed on 27.2.2023 for judgment. On 27.2.2023, Presiding Officer, observed that due to non availability of printer, the judgment could not be printed and the matter was posted on 4.3.2023. On 4.3.2023, 16.3.2023, 21.3.2023 & 23.3.2023, exemption application/adjournment was given by the counsel for the applicant due to ailment and later on, application for exemption was allowed with the cost of Rs.200/- and again on 28.3.2023, exemption/adjournment was given but the same was not accepted by the court below and non-bailable warrant as well as proceeding under Section 82 Cr.P.C. was ordered and the matter was fixed on 5.4.2023 for judgment.
5. Learned counsel for the applicant submits that as the applicant was not absconded, therefore, learned court below has committed error in passing the order for initiating proceeding under Section 82 Cr.P.C. He also submits that word 'absconded' has already been defined by the Hon'ble Apex Court in the case of Kartarey Vs. State of U.P. reported in (1976) 1 SCC 172. He further drew attention of the court towards contents of Section 82 of Cr.P.C. and submits that it provides that if any Court has any reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear but in the case of prior to 28.3.2023, no any bailable warrant was issued, therefore, kind indulgence of this Court is necessary.
6. Learned A.G.A. does not disputed the legal provisions of Section 82 Cr.P.C. and he conceded this fact that order sheet reveals that prior to 28.3.2023, there was no order of warrant, as on 23.3.2023 exemption/adjournment was allowed with the cost of Rs.200/- on the ground of his ailment and also conceded this fact that the impugned order may be quashed and matter may be remanded before court below for passing appropriate order, in accordance with the law.
7. Considering the submissions of learned counsel for the parties, contents of the order dated 28.3.2023 as well as provisions of Section 82 Cr.PC., as order sheet reveals that on 4.2.2023, the matter was listed for final hearing and as the counsel for the private respondent/complainant requested for adjournment but the argument from the side of the accused/respondent was concluded and thereafter, adjournment was taken by the complainant on 16.2.2023. On 21.2.2023, argument of counsel for the complainant was heard and matter was posted on 27.2.2023 for judgment but due to paucity of time, as well as non availability of device, judgment could not be pronounced and matter was posted on 4.3.2023, as order sheet also reveals that adjournment was given due to ailment of the applicant and on 23.3.2023, his exemption application was allowed with the cost of Rs.200/-, on 28.3.2023 without prior issuance of bailable warrant, non bailable warrant as well as proceedings under Section 82 Cr.P.C. was initiated, the order dated 28.3.2023 in violation of said provision, therefore, order dated 28.3.2023 and it is consequential order has been quashed and the court below is directed to proceed and concluding the proceeding of the case in question, in accordance with the law.
8. In view of the above, the present application under Section 482 Cr.P.C. is allowed.
Order Date :- 17.7.2023
Gaurav/-
