Balram Prasad and Anr. vs State of U.P.& Ors.

Sri Ram Sheel Sharma, Advocate who has filed this writ petition only on behalf of the Balram son of Sukru alias Lagari Yadav is permitted to correct the memorandum of petition by deleting the word ''and'' between the name Sukru and Lagari by putting the expression ''alias'' between these two, as is already mentioned in the stay application.

Sri Ram Sheel Sharma then sought for time and is allowed permission to array Smt. Hemlata as petitioner No. 2. She is described in the memorandum of petition as wife of the petitioner No.l. He has also filed separate Vakalatnama on behalf of newly added petitioner No. 2 Smt. Hemlata, said to be the wife of petitioner No. 1 Balram Prasad.

Normally, notices should have been issued in this case to the informant who is arrayed as opposite party No. 4 namely, Triloki son of Basanta Yadav but since the main prayer in the instant case relates to the challenge of summoning order dated 19122001 passed by the committing Court which appears to have already been seized with the matter, the writ petition is to be disposed of after hearing Counsel for the petitioner and learned Additional G.A. who represents opposite party Nos. 1, 2 and 3. This order was repeated on 1732001 but the copy of the ordersheet of C.J.M., Mahoba filed as Annexure 4 indicates that warrants have been issued on the said date against the petitioner No. 1.

As prayed by Sri Ram Sheel Sharma, Smt. Hemlata has appeared before the Court who has offered to voluntarily state Come facts before the Court. There is no reason to deny the said request particularly when a learned member of the bar has filed his Vakalatnama on behalf of both the petitioner, consequently, her statement has been recorded.

Similarly, the statement of Balram Prasad has also been recorded as requested by Sri Ram Sheel Sharma, Advocate.

From annexures filed in this writ petition, it transpires that a first information report giving rise to case crime No. 101 of 2000 arising out of F.I.R. dated 1532001 under Sections 363,366 Indian Penal Code Police Station Kotwali, District Mahoba has been registered against the petitioner No. 1 Balram Prasad at the behest of the informant Triloki. It further transpires that the police has chargesheeted the petitioner No. 1 which went to the Court of the Chief Judicial Magistrate, Mahoba, whose orders is referred to above. Though, there is averment in the petition that the matter has been committed to the Court of Sessions, this Court is refraining from making any comments as to the said commitment proceedings or pendency of the trial before the Sessions Court and no observation in this order shall be interpreted by any of the parties to the litigation for or against the matter which is subjudice before the appropriate Criminal Court in Mahoba, either he be the C.J.M. or he be the concerned Sessions Judge.

From the statements recorded by this Court, it is apparent that both the petitioners allege having married with each other in accordance with the Hindu rights and are living as such. Some allegations have been made regarding the informant and further that the case instituted against the petitioner No. 1 is false. All these are to begone into at the time of trial, if any, which may be pending now.

A serious apprehension has been expressed by the petitioners and their Counsel that the petitioner No. 1 may be arrested at any time and it was the fear of his imminent arrest in Mahoba that has pushed him to this Court for redressal of grievances and instant justice.

Sri Mahendra Pratap Singh learned AGA has been heard for the opposite party Nos. 1, 2 and 3 who has said that the writ petition is not maintainable inasmuch as summoning order could well have been challenged by way of revision. He further objected to the argument of Sri Ram Sheel Sharma, Advocate that looking at the special exigencies of this case, petitioner No. 1 may be directed to surrender before the C.J.M., Allahabad so that his bail application is entertained and time is granted to him to appear before the C.J.M. Mahoba within time as may be allowed either by this Court or by the C. J.M. There is no force in the objection of Sri Mahendra Pralap Singh. In a rarest of rare case if such an exigency arises, this Court has to exercise all powers conferred on it by Article 226 of the Constitution of India, failing which the very purpose of such petitioners'' coming to this Court will be frustrated.

In view of what has been stated above, the writ petition is disposed of with the following directions:

(1) The police of Police Station Mahoba or any other agency to which the investigation of the aforesaid case Crime No. 101 of 2000 may have been entrusted, shall not arrest the petitioners for a period of one month from today.

(2) Petitioner No. 1 will appear before the C.J.M., Allahabad alongwilh the certified copy of this order and certified copies of the two statements, one by petitioner No. 1 and the other by petitioner No. 2 within three days from today and make an application for bail, the C.J.M. will allow bail to the petitioner, accept personal bonds and such surety amount as he may fix, permitting the petitioner No. 1 to appear before the C.J.M. Mahoba within time but well within a period of one month earmarked above. If and when the petitioner appears and applies before C.J.M. Mahoba for bail, his bail application shall be considered in accordance with law and if he rejects the same, it will be open to the petitioner to approach by afresh bail application before the learned Sessions Judge, Mahoba who will deal with that matter in accordance with law within a period of one month as earmarked above.

The C.J.M. Allahabad will after dealing with the transit bail application thereafter forthwith transmit the statement and the copy of this order and the orders as may be recorded by him in pursuance of this order to the C.J.M. Mahoba by special messenger within 24 houis of dealingwiththeapplication.

Office will furnish a certified copy of this order and certified copies of the two statements recorded within 24 hours to the learned Counsel for the parties on payment of usual charges.