[Cites 6, Cited by 0]
Uttarakhand High Court
Unknown vs State Of Uttarakhand And Another on 18 February, 2026
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 190 of 2018
(under Section 482 Cr.P.C.)
18th February, 2026
Prem .............Applicant
Versus
State Of Uttarakhand and another ............Respondent
Criminal Misc Application No. 437 of 2025
(under Section 528 of B.N.S.S)
Rajesh .............Applicant
Versus
State Of Uttarakhand and another ............Respondent
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Presence:-
Mr. Tapan Singh, learned counsel for the applicant.
Mr. K.S. Bora, learned Deputy A.G. along with Mr. Dinesh
Chauhan, learned Brief Holder for the State.
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Hon'ble Mr. Alok Mahra, J. (Oral)
The present applications have been filed
under Section 482 Cr.P.C. seeking quashing of the
orders dated 29.01.2018 and 25.03.2025 passed by the
learned 4th Additional Sessions Judge, Haridwar and
the learned 3rd Additional Sessions Judge, Haridwar,
respectively, in Sessions Trial No.100 of 2016 and
Sessions Trial No.01 of 2022, arising out of offences
punishable under Sections 302, 323 and 504 I.P.C. The
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applicants have further prayed that their applications
dated 29.01.2018 and 25.03.2025 seeking release be
allowed, on the ground that the summoning order
dated 26.04.2017 passed under Section 319 Cr.P.C.
had already been stayed by this Court vide order dated
25.01.2018, and consequently, a direction be issued to
the learned trial court to release the applicants
forthwith.
2. In both the C-482 application and C-528
application, the dispute, facts, and questions of law
involved are the same. However, for the sake of brevity,
the facts of C-482 No. 190 of 2018 are being taken into
consideration.
3. Learned counsel for the applicant would
submit that respondent no.2 lodged an F.I.R. alleging
that on 17.10.2015 at about 11:30 A.M., an altercation
took place, whereafter Deepak, his father Prem and his
associate Manga @ Pankaj reached the spot. It was
alleged that Prem and Manga @ Pankaj caught hold of
the complainant's brother, while Deepak assaulted him
with a knife, causing serious injuries, and during the
course of being taken to the hospital for treatment, he
succumbed to the injuries.
4. It is further submitted that upon completion
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of investigation, the Investigating Officer submitted
charge-sheet only against accused Deepak under
Sections 302, 323 and 504 I.P.C., whereupon
cognizance was taken by the learned trial court.
Subsequently, on 17.10.2016, respondent no.2 moved
an application under Section 319 Cr.P.C. seeking
summoning of the present applicant and other named
persons to face trial. Initially, the learned trial court
observed that the cross-examination of prosecution
witness no.1 was yet to be completed and deferred
consideration of the application. Thereafter, vide order
dated 26.04.2017, the learned trial court summoned
the present applicant along with co-accused Manga @
Pankaj, Prem and Smt. Rajesh under Sections 302/34,
323/34 and 504 I.P.C.
5. Aggrieved thereby, co-accused Manga @
Pankaj preferred Criminal Revision No.266 of 2017
before this Court. This Court, vide order dated
25.01.2018, stayed the effect and operation of the
summoning order dated 26.04.2017, observing inter
alia that only two out of twenty-one prosecution
witnesses had been examined and it would not be
appropriate at that stage to summon additional
accused under Section 319 Cr.P.C. It is further
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submitted that ultimately, vide judgment and order
dated 03.04.2019, this Court allowed the said criminal
revision and set aside the summoning order dated
26.04.2017.
6. Learned counsel submits that in view of the
stay granted by this Court on 25.01.2018, the applicant
moved an application before the learned trial court
seeking his release from custody. However, the learned
trial court rejected the said application vide impugned
order dated 29.01.2018 on the ground that since the
revision had been filed only by Manga @ Pankaj, the
benefit of the stay order would enure only to him and
not to the present applicant. It is contended that the
summoning order dated 26.04.2017 was a composite
and indivisible order, and once its operation had been
stayed, the same could not have been enforced against
any of the persons summoned therein.
7. It is further submitted that the applicant in
C-482 No.190 of 2018 had surrendered before the
learned trial court on 30.10.2017 and the applicant in
C-528 No.437 of 2025 was arrested on 23.03.2025 in
compliance with the summoning order dated
26.04.2017 and have been in custody since then.
During the subsistence of the stay order dated
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25.01.2018, there remained no legal basis to continue
their detention. The learned trial court, by ignoring the
binding order of this Court, committed a manifest error
of law in rejecting the applicants' release application.
8. Per contra, learned State counsel opposed the
application and submitted that since the criminal
revision was preferred only by Manga @ Pankaj, the
interim stay order dated 25.01.2018 would operate only
qua the revisionist and not in favour of the present
applicant. However, it is not disputed that
subsequently the summoning order dated 26.04.2017
has been set aside by this Court vide judgment and
order dated 03.04.2019.
9. Heard learned counsel for the parties and
perused the material on record.
10. It is an admitted fact that by order dated
26.04.2017, passed under Section 319 Cr.P.C., the
learned trial court summoned the present applicants
along with Manga @ Pankaj, Prem and Smt. Rajesh to
face trial. The said summoning order was stayed by this
Court on 25.01.2018 in Criminal Revision No. 266 of
2017.
11. The question for consideration is whether,
after the operation of the summoning order had been
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stayed, the trial court could refuse the applicants' release
merely on the ground that the revision was filed only by
co-accused Manga @ Pankaj.
12. The summoning order dated 26.04.2017 was a
common and composite order against all the accused
persons. The stay granted by this Court was on the
operation of the entire order and did not make any
distinction between the accused persons. Once the
operation of the summoning order was stayed, it became
inoperative in law and could not be enforced against any
of the persons summoned under it. The trial court, while
passing the order dated 29.01.2018, failed to appreciate
that when the operation of an order is stayed, its legal
effect remains suspended during the period of stay.
Therefore, the applicant could not have been treated as a
validly summoned accused. The view that the benefit of
the stay was confined only to the revisionist is legally
incorrect, particularly when the summoning order was
indivisible.
13. It is undisputed that this Court, by judgment
and order dated 03.04.2019 passed in Criminal Revision
No. 266 of 2017, set aside the summoning order dated
26.04.2017. The said judgment has not been challenged
before any higher forum and has, therefore, attained
finality. Consequently, once the very foundation of the
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proceedings i.e., the summoning order dated 26.04.2017
stands quashed, all subsequent and consequential
proceedings arising therefrom automatically fall to the
ground and cannot survive in the eyes of law. Any action
taken in pursuance thereof is non-est and without
jurisdiction.
14. The applicants had surrendered in compliance
with the summoning order and remained in custody.
After the stay and subsequent quashing of the
summoning order, there was no legal basis to continue
his detention.
15. Accordingly, the impugned order dated
29.01.2018 passed by the learned 4th Additional Sessions
Judge, Haridwar and impugned order dated 25.03.2025
passed by the learned 3rd Additional Sessions Judge,
Haridwar are illegal and are set aside in exercise of
powers under Section 482 Cr.P.C.
16. The application under Section 482 Cr.P.C. and
528 B.N.S.S. are allowed. The applicants shall be
released forthwith in Sessions Trial No. 100 of 2016 and
Sessions Trial No.01 of 2022, if not required in any other
cases.
17. Pending applications, if any, also stand
disposed of.
(ALOK MAHRA, J.)
18.02.2026
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Mamta
