Chandra Shekhar vs State of U.P. and Another

Amar Saran, J.—Heard learned Counsel for the applicant and learned A.G.A.

This case has a chequered history.

This application has been filed with a prayer for setting aside the order dated 1.4.2008 summoning the applicant in exercise of power u/s 319, Cr. P.C. or for granting such other further relief that this Court deems just and proper.

Earlier as the applicant was not named in the F.I.R., but summoned on the basis of application u/s 319, Cr. P.C. in S.T. No. 360 of 2006, under Sections 302, 504, 506, I.P.C. by the Sessions Judge, Aligarh by an order dated 14.8.2007. The said order was challenged in an earlier Crl. Misc. Application No. 20849 of 2007, wherein it was argued that without cross-examination of P.W. 1, the applicant has been summoned and the order u/s 319, Cr. P.C. could not have been passed but the said argument did not find favour of Hon''ble Mrs. Poonam Srivastav, J., and by an order dated 30.8.2007 the summoning order passed in exercise of power u/s 319, Cr. P.C., was upheld but four weeks'' time was allowed to the applicant to appear before the Court concerned and the Court concerned was directed to dispose of his bail application preferably on the same day.

Thereafter, vide paragraph 14 of the affidavit and Annexure-7 it is mentioned that the applicant was granted bail by the Additional Sessions Judge, Court No. 12, Aligarh by an order dated 24.9.2007. However, it appears that another co-accused Amit, who had also been similarly summoned in exercise of power u/s 319, Cr. P.C., by the Sessions Judge, Aligarh vide order dated 14.8.2007 preferred another Criminal Revision No. 2935 of 2007 but the said criminal revision was allowed by Hon''ble Shiv Shanker, J., vide order dated 27.9.2007 relying on the decision of Mohd. Safi v. Mohd. Rafiq and Anr. (LVIII) 2007 ACC 254 and the order dated 14.8.2007 summoning Amit and the applicant was set aside in toto. Subsequently, in pursuance of the order of this High Court dated 27.9.2007 the applicant was discharged. However, as this Court in the aforesaid Criminal Revision No. 2935 of 2007 had directed that after cross-examination, a summoning order could be passed. After cross-examination of P.W. 1, the applicant and co-accused Amit were again summoned vide order dated 1.4.2008, which is the order impugned in this application.

Learned Counsel for the applicant rightly does not press this prayer for setting aside the order dated 1.4.2008 summoning the applicant u/s 319, Cr. P.C. However, he points out that the applicant had already been enlarged on bail on 24.9.2007 and he should be permitted to remain on the same bail subject to his furnishing fresh bail bonds.

Learned A.G.A. Sri Mulla, however, points out that since the earlier order dated 14.8.2007 had been set aside in Criminal Revision No. 2935 of 2007 on 27.9.2007, the applicant had been discharged and he could not be said to be on bail, hence there was no question of allowing the applicant to remain on the earlier bail subject to his furnishing fresh bail bonds. There is substance in this submission of learned A.G.A. Hence, the relief now sought for by the applicant cannot be granted.

I also have no option but to direct the applicant to appear before the Court concerned within a period of four weeks from today and to apply for bail. If the applicant surrenders before the Court concerned within four weeks from today in the aforesaid case and apply for bail, the same shall be disposed of expeditiously, if possible, on the same day provided the applicant communicates their intention to surrender before the Court concerned seven days in advance so that the prosecution may have all the documents available and not seek adjournment on that account as held by the Apex Court in the case of Naresh Kumar v. Ravindra Kumar, 2008 (1) SCC 632 (Paragraph 8). The Court concerned shall also take into consideration while disposing of the bail application that in the instant case, the applicant has already been granted bail on 24.9.2007 (if the said averment is correct).

With the aforesaid observation/ direction, the application is disposed of finally.

The order may also be communicated by the Registry to the Sessions Judge, Aligarh within two weeks.