Kamlapati Verma @ Dhakelu vs State of U.P. and Others

Raj Mani Chauhan, J.—Learned Counsel for the Petitioner files supplementary affidavit, which is taken on record.

Heard the learned Counsel for the Petitioner and learned A.G.A. as well as perused the documents available on record.

This petition u/s 482 of the Code of Criminal Procedure (hereinafter referred to as ''Code'') has been filed by the Petitioner with the following prayers:

i. to quash the impugned order dated 30.08.2010 (Annexure No. 1) passed by Additional Sessions Judge FTC-III, Court Room No. 13, District Sultanpur/opposite party No. 2 and proceeding of attachment dated 20.09.2010 (Annexure No. 2) done by the opposite party No. 4/Station House Officer, Police Station Gosaiganj, District Sultanpur and its consequential effects.

ii. to release the property attached on 20.09.2010 by opposite party No. 4 in pursuance of order dated 30.08.2010 to the Petitioner.

iii. to issue any other appropriate order or direction as the Hon''ble Court may deem fit and proper under the circumstances of the case, may also be pleased to pass in the interest of justice.

From a perusal of the records, it appears that the accused Petitioner Kamlapati Verma alias Dhakelu and accused Doodhnath were tried by the learned Additional Sessions Judge/FTC-III, Court No. 12, Sultanpur in Sessions Trial No. 238 of 1994 (Crime No. 220 of 1994); State v. Kamlapati and Ors., under Sections 302, 323, 324 I.P.C. Police Station Gosainganj, District Sultanpur. The learned Additional Sessions Judge, vide judgment and order dated 24.8.2010, held both the accused guilty for the offences under Sections 302, 323, 324 I.P.C. The accused Petitioner was absent on that date. The learned Additional Sessions Judge after giving an opportunity to the accused Doodhnath for hearing on the point of sentence, convicted and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs. 50,000/- u/s 302 I.P.C., to undergo simple imprisonment for one year and to pay fine of Rs. 1000/- u/s 323 I.P.C. and to undergo rigorous imprisonment for three years and to pay fine of Rs. 5000/- u/s 324 I.P.C. The sentence further directs that in case he fails to pay the fine, he will further undergo imprisonment for two years. Since the accused Petitioner was absent on that date, therefore, learned Additional Sessions Judge ordered for issuance of non-bailable warrant against him. On 30.8.2010, the non bailable warrant issued by the court was returned unexecuted with the endorsement that the accused Petitioner was absconding. Consequently, the learned Additional Sessions Judge further ordered for issuance of non bailable warrant as well as process u/s 82/83 of the Code against the accused Petitioner.

Learned Counsel for the accused Petitioner submits that on the date of pronouncement of the judgment, the accused Petitioner could not attend the court; rather his counsel had moved an application for exemption from his personal appearance but no order was passed on the application. The learned Additional Sessions Judge, vide order dated 30.8.2010 without service of non bailable warrant ordered for issuance of process under Sections 82/83 of the Code which is illegal. Learned Counsel further submits that in compliance of the order dated 30.8.2010, the movable property of the accused Petitioner was attached by the police. Now the police is going to attach his immovable property. The order for issuance of non bailable warrant and process under Sections 82/83 of the Code as well as the attachment of the immovable property is illegal and is liable to be quashed.

Learned A.G.A. opposed the petition.

Considered the submissions of the learned Counsel for the accused Petitioner and learned A.G.A.

Learned Counsel for the accused Petitioner made submission in a such way that the court has to wait the accused for indefinite period till he appears before the court at his own sweet will. From a perusal of the records, it appears that the case was fixed on 24.8.2010 for pronouncement of the judgment. The accused was expected to remain present before the court on that date. The trial court, vide its judgment, held the accused guilty. If the accused Petitioner was absent, the trial court had no option except to issue of non bailable warrant against him. After pronouncement of the judgment, the trial court tried to procure his attendance but the accused Petitioner instead of appearing the trial court, twice approached this Court which apparently shows that he is avoiding to appear before the trial court. I do not find any illegality in the impugned order which does not call for any interference by this Court. The petition is devoid of any merit and is liable to be dismissed.

The petition is, therefore, dismissed.