Deepak vs State of U.P. and Another

Poonam Srivastav, J.—Heard learned Counsel for revisionist and learned A.G.A. for the State.

The instant revision is preferred against order dated 28.10.2009 passed by Additional Sessions Judge F.T.C. 3rd, Jaunpur, in Session Trial No. 290 of 2005 arising out of case crime No. 302 of 2005 u/s 307 I.P.C. Police Station Kotwali Jaunpur, District Jaunpur.

Grievance of revisionist is that an application was moved before Additional Sessions Judge with a prayer to summon record of cross case under Sections 307, 120B, 167, 218, 220, 342, 147, 148, 149, 323, 504 I.P.C., which is pending and both cases may be tried together.

Facts are somewhat different. Revisionist filed an application u/s 156(3) Cr.P.C. Learned Magistrate passed an order on 4.2.2006 directing to register and investigate the matter against some police officials. The said order was challenged before this Court in criminal revision No. 1708 of 2006, which is still pending. An interim order staying operation of the order dated 4.2.2006 u/s 156(3) Cr.P.C. was passed.

It is admitted that consequent to the said order, no first information report has been registered so far. Application for summoning record of cross case was rejected by Additional Sessions Judge, which is impugned in the instant revision.

I have perused the impugned order dated 28.10.2009 whereby application 54-Kha preferred on behalf of revisionist was rejected with a finding that cross case is not in existence either at any police station or in any other Court of Law.

The counsel for revisionist has tried to stress that since there is stay order granted by this Court in criminal revision No. 1708 of 2009 then it will be presumed that order by virtue of which a direction was given to register and investigate criminal case is not in existence. Therefore, learned Magistrate has committed illegality in holding otherwise. He has placed reliance on two decisions one is Dr. G.C. Tripathi v. State of U.P. and Anr. 1994 (23) All LR 296. On the basis of this decision, it is argued that effect of stay order means that order stayed cannot be given effect to, it does not mean that authority cannot cancel or rescind, recall or withdraw that order. Another decision is in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali 2006 INDLAW SC 1253 : AIR 2006 SCW 6365 which relates to stay of conviction. It was held that order granting stay of conviction is not rule but is an exception to be resorted to in rare cases depending upon facts of the case but where conviction itself is stayed, effect is that conviction will not be operative from the date of stay.

I do not think that these decisions are of any help to revisionist. Both these decisions only elucidate on the effect of stay order. Assuming that there is an order passed by this Court in criminal revision No. 1708 of 2006 staying order of the Magistrate to register criminal case, it means that no criminal case is registered since stay order is operative. Consequent result is that no criminal case is in existence either because there is an interim order operative staying order of the Magistrate to lodge FIR or alternatively matter was probed by the Magistrate and only an order was passed for registering criminal case. In either circumstance, FIR is not in existence. Therefore, there is no question of any cross case pending before any court. In absence of FIR there is no investigation, no charge sheet, no summoning order and consequently no trial is pending in any court. Therefore, contention of the counsel for revisionist that cross case should be tried together is a hypothetical situation. In the event, stay is vacated, criminal revision No. 1708 of 2006 is dismissed then FIR can be lodged and entire process of law will take its course. There being nothing of this kind, argument of the counsel for revisionist is without any substance.

Counsel for revisionist has also placed reliance on a number of decisions of the Apex Court as well as this Court; Kulwant Singh v. Amarjit Singh and Ors. XL 2000 ACC 783 (SC), Sudhir and Ors. v. State of M.P. XLII 2001 ACC 479 (SC) : AIR 2001 SC 826, Balbir v. State of Haryana and Anr. XL 2000 ACC 149 (SC) , State of M.P. Vs. Mishrilal (Dead) and Others, and Jugdish and Ors. v. Additional Sessions Judge/FTC, Siddarth Nagar and Anr. LXVI 2008 ACC 71.

Principles laid down in all these decisions are that whenever cross case is pending, both cases should be tried together. No doubt, it is settled principle of law. I am in full agreement that cross case should be tried together. But in the instant case taking into consideration that only an order was passed by Magistrate to register and investigate the matter, which has been stayed by this Court as far back as in year 2006, there is no cross case in existence at present. Therefore, application has rightly been rejected by Additional Sessions Judge. No good ground for interference is made out. The instant revision lacks merits and is, accordingly, dismissed.