Kaladhar Chaubey vs The Union Of India And 3 Ors
2021 Latest Caselaw 2880 Gua

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GAHC010023662021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Civil)/339/2021

            KALADHAR CHAUBEY
            S/O. SHARDA PRASAD CHAUBEY, R/O. HATHIAR KHURD, P.O. KATIHAR
            KALA, P.S. CHOLAPUR, DIST. VARANASI (U.P.), PIN-212011



            VERSUS

            THE UNION OF INDIA AND 3 ORS.
            REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT.OF INDIA, NEW
            DELHI- 110001

            2:THE DEPUTY DIRECTOR GENERAL
             CISF
            (N.E.Z)
             KOLKATA-17

            3:THE COMMANDANT
             CISF
             UNIT ONGC
             JORHAT.

            4:THE ASSTT. COMMANDANT

             CISF
             UNIT ONGC
            JORHAT

Advocate for the Petitioner   : MR. R MAZUMDAR

Advocate for the Respondent : ASSTT.S.G.I.
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                                 BEFORE
                       HONOURABLE MR. JUSTICE K. SEMA

                                     ORDER

Date : 15-11-2021

Heard Mr. U. Sarma, learned counsel for the applicant and also heard Mr. P.K. Medhi, learned CGC appearing for the Union of India.

The case of the applicant in brief is that he had preferred the W.P.(C) No. 4518/2008 before this Court against the dismissal order dated 31.10.1996, passed by the respondent authorities dismissing the petitioner from service. Against the order dated 31.10.1996, the petitioner initially approached the Allahabad High Court by filing the Civil Misc Writ Petition No. 10317 of 1999 (A) challenging the said order but due to the lack of jurisdiction, the Hon'ble Allahabad High Court did not entertain the said writ petition. The petitioner then filed W.P.(C) No. 4518/2008 on 15.10.2008 before this Hon'ble Court for quashing the dismissal order dated 30.10.1996 and also to set aside the impugned enquiry report submitted by the Enquiry Officer.

It is submitted by the petitioner that in the present writ petition, the affidavit-in-opposition was filed by the respondents on 25.02.2009 and the affidavit-in-reply was filed by the petitioner on 04.02.2011. The petitioner however, submitted that on 01.03.2011, the petitioner was arrested by the Cholapur Police Station, Varanasi in connection with Crime Case No. 40/2011 latter on registered as Special Sessions Trial No. 260/2011, under section 302/201 IPC, read with section 3(2)(5) Schedule Castes and Schedule Tribes (Prevention and Atrocities Act, 1989). On completion of the trial, the learned Additional Sessions Judge (SC/ST Act) Varanasi by judgment & order dated 28.11.2013, convicted and sentenced the petitioner to undergo life imprisonment under section 302 IPC with a fine of Rs. 10,000/- and in default of Page No.# 3/4

which to undergo 6 months R.I, under section 201 IPC to three years rigorous imprisonment with fine of Rs. 2000/- in default of which to undergo two months rigorous imprisonment and under section 3(2)(5) of Schedule Caste & Schedule Tribes (Prevention and Atrocities) Act, 1989 to undergo life imprisonment and a fine of Rs. 10,000/- and in default of payment of fine to undergo 6 months of rigorous imprisonment. The sentences was ordered to run concurrently. Against the said conviction, the petitioner had preferred the Criminal Appeal No. 1082/2014 before the Hon'ble Allahabad High Court and the Hon'ble Allahabad High Court by the judgment & order dated 13.01.2021 set aside the judgment & order dated 28.11.2013, passed by the learned Additional Sessions Judge (SC/ST Act) Varanasi and the petitioner was acquitted and released from jail on 13.01.2021. After his acquittal, the present application for restoration of W.P.(C) No. 4518/2008 was filed on 06.02.2021.

It is the case of the petitioner that in view of his incarceration in jail from 01.03.2011 to 13.01.2021 he could not take steps to pursue the present writ petition and due to which the writ petition was dismissed by the order dated 28.11.2013. The petitioner therefore, prays to recall the order dated 28.11.2013 by which the W.P.(C) No. 4518/2008 was dismissed for non prosecution, as the non prosecution of the writ petition was not deliberate or intentional but for reasons aforesaid.

This Court on pointed enquiry from the learned counsel for the respondents as to whether the period of the applicant's imprisonment in jail from 01.03.2011 to 13.01.2021 constitute reasonable ground for restoration of the writ petition, the counsel for the respondents instead of satisfying the queries raised by the Court sought for some time to receive instructions from the respondents.

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The learned counsel seeking time for receiving instruction, is accordingly rejected. This Court finds that the petitioner has been able to satisfy this Court as to why he could not prosecute W.P.(C) No. 4518/2008 after it was dismissed for non-prosecution on 28.11.2013, the preliminary ground being that the applicant was under imprisonment from 01.03.2011 to 31.01.2021.

The application for restoration of W.P.(C) No. 4518/2008 is accordingly allowed. The order dated 28.11.2013 dismissing W.P.(C) No. 4518/2008 for non prosecution is accordingly recalled.

I.A (C) accordingly allowed.

JUDGE

Comparing Assistant