Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Criminal Trial -while Claiming Charge Only Prosecution Evidence Will Be Considered And Not Defence Plea.
JUDGEMENT TITLE : Raghvendra Kumar Srivastava & Others Vs. State Of U.P. & Another On 30/05/2007 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 11771 OF 2007
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 1
Criminal Misc. Application No. 11771 Of 2007

Raghvendra Kumar Srivastava And Others
Vs.
State Of U.P. & Ors.

Hon'ble R.K. Rastogi, J.
This Application Has Been Filed Under Section 482 Cr.P.C. For Quashing The Order Dated 11.5.2007 And 15.5.2007 Passed By The Chief Judicial Magistrate, Varanasi In Criminal Case No. 6637 Of 2006 (State Vs. Raghvendra & Ors) Under Sections 498A, 313, 406, 504, 506, IPC And Sec ?? Dowry Prohibition Act Issuing Non Bailable Warrants Against The Applicants.
Heard Learned Counsel For The Applicant And Learned A.G.A.
The Facts Relevant For Disposal Of The Application Are That The Opposite Party No. 2 Who Is Wife Of Applicant No. 1 Had Moved An Application Under Section 156(3) Cr.P.C. Dated 4.10.2005 Against The Accused Applicants Before The Chief Judicial Magistrate, Varanasi And On The Basis Of The Order Dated 18.10.2005 Passed By The Magistrate On That Application, The Police Of Police Station Cantt. Varanasi Registered The Case As Crime No. C-161/2005 Investigated The Same And Submitted A Charge Sheet Against The Accused Applicants On 1.7.2006 Under Sections 498, 313,, 406, 504, 506 IPC And ?? Dowry Prohibition Act. It May Be Mentioned That The Accused Applicants Had Challenged The Order Dated 18.10.2005 Passed By The Chief Judicial Magistrate, Varanasi, By Filing Criminal Revision No. 4812 Of 2005 And In That Revision It Was Ordered That The Investigation Of The Case May Go On But The Applicants Nos. 2 To 7 Shall Not Be Arrested Till Submission Of The Report Under Section 173(2) CR.P.C. The Prayer For Staying Arrest Of Applicant No. 1, (husband Of Opposite Party No. 2) Was However Rejected Vide Aforesaid Order Dated 14.11.2005. Thereafter Applicant No. 1 Raghvendra Kumar Srivastava Filed Another Criminal Misc. Writ Petition No. 2908 Of 2006 Before This Court For Quashing The F.I.R. And It Was Decided By A Division Bench Vide Order Dated 8.3.2006 In Which It Was Ordered That The Petitioner Shall Not Be Arrested In The Aforesaid Case Till The Trial Starts Provided They Pay Interim Compensation To The Victim @ 1500/- P.m. From The Date Of The Order And That Amount Shall Be Deposited In The Court Of Chief Judicial Magistrate, Varanasi By 7th Of Each Month And The Victim Shall Be Entitled To Withdraw The Same. It Was Further Ordered That In Case Of Failure Of Payment Of Interim Compensation, The Order Staying Arrest Of Petitioner Shall Stand Automatically Vacated.
The Investigation Officer Submitted The Charge Sheet On 1.7.2006 As Narrated Above And Thereafter Since The Accused Did Not Appear Nor Did They File Any Documentary Proof To Show Deposit Of The Aforesaid Amount, The Order Was Passed By The Chief Judicial Magistrate On 11.5.2007 For Issuing Non-bailable Warrant Against The Accused Persons. The Application To Recall That Order Was Rejected On 15.5.2007. Now They Have Moved This Application Under Section 482 Cr.P.C. For Quashing The Orders Dated 15.5.2007 And 11.5.2007. They Have Also Made A Prayer That They Had Moved An Application On 11.5.2007 Alleging That Court At Varanasi Has No Jurisdiction In The Matter And That Application Moved Under Section 209 CR.P.C. Should Be Decided First, Before Passing Any Order For Compulsion Of Surrender Of The Applicants Before The Court.
It Has Been Submitted Before Me That The Applicant Had Deposited The Entire Amount As Directed By This Court Vide Order Dated 8.3.2006 In Criminal Misc. Writ Petition No. 2908 Of 2006. It Has Further Been Submitted That In The Aforesaid Order It Had Been Provided That The Petitioner Shall Not Be Arrested In The Case Till The Trial Starts, And Since The Offence Under Section 313, Cr.P.C. Is Triable By The Court Of Session, The Trial Can Starts Only In The Court Of Session And So The Magistrate Has No Jurisdiction To Pass The Order For Issuing Non-bailable Warrant Against The Petitioners To Procure Their Attendance. The Accused Applicants Have Also Filed Photocopies Of Bank Drafts/Challan Forms To Show That They Have Deposited The Amount Which Was Payable To Opposite Party No. 2, In The Account Of Chief Judicial Magistrate, Varanasi In The State Bank Of India, Varanasi.
I Am Of The View That The Petitioner Should Appear Before The Chief Judicial Magistrate, Varanasi And Filie Documentary Evidence Of Deposit Of Up-to-date Amount Of Interim Compensation @ Of Rs. 1500/- P.m. And On Production Of The Documentary Evidence Of Such Deposit, The Chief Judicial Magistrate, Shall Consider Whether The Up-to-date Amount Has Been Deposited In Accordance With The Order Of This Court Or Not. In Case The Entire Amount Has Been Deposited, Warrant Issued Against The Accused May Be Withdrawn If They Appear Before The Chief Judicial Magistrate, Varanasi On The Date Fixed Which Is 12.6.2007. To Enable Them To Appear Before The Chief Judicial Magistrate On 12.5.2007, It Is Hereby Ordered That The Non Bailable Warrant Issued Against The Applicant Shall Not Be Executed Till 12.6.2007. However, If The Accused Do Not Appear Before The Magistrate On The Above Date And Do Not File Documentary Evidence In Proof Of Depositing The Amount, This Stay Order Shall Automatically Stand Vacated.
The Contention Of The Learned Counsel For The Applicants That The Accused Have Been Exempted From Appearing Before The Magistrate Till The Trial Starts Is Misconceived. Even If The Case Is Triable By The Sessions Court The Accused Shall Have To Appear Before The Magistrate And The Case Can Be Committed To The Court Of Sessions Only After Making Compliance Of The Requirement Of Section 207 Cr.P.C. The Above Order Of The Court That The Accused Are Not To Be Arrested Till Start Of Trial Virtually Means That The Accused Shall Not Be Arrested During Pendency Of The Investigation, But After Submission Of The Charge Sheet The Magistrate Has Got The Jurisdiction To Take Steps To Procure Attendance Of The Applicants To Complete Those Formalities Which Are To Be Done Before The Trial Starts.
The Applicants Have Taken Several Factual Pleas Including That Of Territorial Jurisdiction (which Is Legal Plea Based On Facts) In Their Application Dated 11.5.2007. These Pleas Can Be Decided At The Proper Stage In Accordance With The Scheme Propounded Under The Cr.P.C. And There Is No Justification For Keeping The Proceedings In Abeyance Till The Disposal Of That Application.
The Application Under Section 482 Cr.P.C. Is Therefore Disposed Of With The Above Observations, Making The Provision That Till 12.6.2007 The Applicants Shall Not Be Arrested To Enable Them To Appear Before The Chief Judicial Magistrate, Varanasi. On That Date, The Accused After Putting In Appearance May Apply For Withdrawal Of The Order Dated 11.5.2007 After Producing The Documentary Evidence Of Deposit Of The Amount.
The Accused Applicant May Also File Bail Application Which Shall Be Considered And Decided By The Court Below Expeditiously If Possible On The Same Day, Taking Into Consideration The Observations Of This Court In Smt. Amrawati And Another Vs. State Of U.P. And Others Reported In 2004 (57) A.L.R. Page 390.
The Application Under Section 482 Cr.P.C. Is Finally Disposed Of Accordingly.
Note:- A Copy Of The Order Shall Be Issued Within 72 Hours On Payment Of Usual Charges.

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