Lalit Kishore Singh and Shyam Kishore Singh vs State of U.P. and Others

R.K. Rastogi, J.—This is a revision against the judgment and order dated 08.06.2007 passed by Sri R.K. Mishra, learned Additional Sessions Judge, Court No. 2, Banda in Criminal Revision No. 165 of 2006 Jokhu Khan and Ors. v. State of U.P. and Anr.

The facts relevant for disposal of this revision are that the complainant revisionist Lalit Kishore had filed a complaint against the accused Jokhu Khan, Ram Kumar, Kalu Ram Doharey & Rasik Kishore Singh (opposite party No. 2 to 5) in the Court of the learned C.J.M., Banda under Sections 114 116 167 193 323 340 504 452 506 I.P.C. with these allegations that the accused Jokhu Khan who was then S.O. in-charge of P.S. Baberu district Banda, and Kalu Ram Doharey in-charge Inspector P.S. Kotwali, Baberu and Constable Ram Kumar (opposite parts No. 2 to 4) had forcibly entered the house of Lalit Kishore and Shyam Kishore at Baberu district Banda on 04.08.2004 and had forcibly taken them to police outpost Murval where their younger brother Rasik Kishore Singh (accused opposite party No. 5) and his wife Rita were also present. Jokhu Khan and Kalu Ram Doharey, accused opposite parties No. 2 & 3 alongwith police personnel beat them by shoes, Chappals and sticks and thereafter the police challaned the complainant on 05.08.2004 u/s 151 107 116 Cr.P.C. The complainant, on account of this beating, got injuries. He got his injuries medically examined in the District Hospital Banda on 06.08.2004 and then filed a complaint against the accused opposite parties which was registered as Criminal Case No. 4224 of 2004 in the Court of C.J.M., Banda. All the accused persons including the police personnel named in the complaint were summoned vide order dated 10.11.2004.

After this summoning order had been passed, the accused opposite party No. 2 to 4 moved an application u/s 197 Cr.P.C. asserting that they had challaned the complainant u/s 151 107 116 Cr.P.C. in exercise of their official duties because he was fighting with Smt. Rita Soni and had assaulted her and so the proceedings u/s 107/116 and 151 Cr.P.C. were drawn. Hence, the present complaint was not maintainable without obtaining sanction for their prosecution u/s 197 Cr.P.C. As against this application, the complainant''s learned Counsel took an objection that the accused had not put in appearance before the Court, and so the application u/s 197 Cr.P.C., was not maintainable without their appearance in person before the Court. The learned Magistrate upheld this objection and rejected the application u/s 197 Cr.P.C.

Aggrieved with the above order the accused opposite party No. 2 to 5 filed an application u/s 482 Cr.P.C. before this Court bearing Criminal Misc. Case No. 6408 of 2006 Jokhu Khan and Ors. v. State of U.P. and Ors. This application was disposed of by this Court vide its order dated 08.06.2006 with a direction that the application of accused shall be considered only when they put in their appearance before the lower Court. The said order is as under:

Heard Learned Counsel for the applicants and the learned A.G.A.

Learned Counsel for the applicants contended that the applicants are ready to appear before trial court on or before 19th June 2006. In this view of the fact, the non-bailable warrant against the applicants shall remain stayed till 19th June 2006. It is made clear that all the applications of the accused shall be considered only if they have put in their appearance before Court.

With the aforesaid direction, this application is disposed of finally.

Thereafter, the accused moved another application u/s 197 Cr.P.C. before the C.J.M. Again an objection was taken from the side of the complainant that the accused had not personally appeared and had not applied for bail and so the application u/s 197 Cr.P.C. moved by them could not be entertained. This objection was upheld by the learned C.J.M. and so the application u/s 197 Cr.P.C. was rejected for non-compliance of the order of this Court passed in the aforesaid Criminal Misc. Case u/s 482 Cr.P.C.

Aggrieved with that order, the accused filed Criminal Revision No. 165 of 2006 before the Sessions Judge, Banda which was decided by the Additional Sessions Judge, Court No. 2, Banda vide his judgment dated 08.06.2007. He was of the view that there was no direction of this Court that the accused must appear personally before the Trial Court and apply for bail before that court, and then only their application u/s 197 Cr.P.C. can be considered on merits, and so there was no legal requirement to do so, and when the application u/s 197 Cr.P.C. had been moved, it was necessary to decide that application on merits, and it could not be rejected on the ground that the accused had not appeared personally and had not applied for bail. With these observation he allowed the revision, set aside the order passed by the C.J.M., Banda, and remanded the matter to the C.J.M., Banda to rehear the application u/s 197 Cr.P.C. Aggrieved with that order the complainant has filed this revision.

I have heard learned Counsel for both the parties and have perused the record of the revision. It appears from perusal of the order dated 08.06.2006 passed by this Court in Criminal Misc. Case No. 6048 of 2006 that when this case was taken up for hearing at the admission stage, the learned Counsel for the accused applicants himself offered that the applicants were ready to appear before the Trial Court on/or before 19.06.2006 and so in this view of the matter the Court ordered that non-bailable warrants issued against the applicants shall remain stayed till 19.06.2006. It was further made clear that all the applications of the accused shall be considered only after they put in their appearance before the Court, and with this direction the application u/s 482 Cr.P.C. was disposed of finally.

The accused, however, did not comply with their above undertaking and did not appear before the Court personally, nor did they move any application for grant of bail and they again moved an application through counsel for discharge on the ground of want of sanction u/s 197 Cr.P.C. which was rejected by the C.J.M. on the ground of non compliance of the order this Court.

Considering the above facts, I am of the view that when the accused had given an undertaking before this Court that they would appear before the Magistrate on/or before 19.06.2006, they must have appeared before the Court by that date, and when they did not do so, they are guilty of committing violation of their own undertaking. It was very clearly provided in the order of the Court that all the applications of the accused shall be considered only when they put in their appearance before the Court. They did not put in their appearance as undertaken by them and again moved an application through counsel for discharge on the ground of non compliance of the requirement u/s 197 Cr.P.C. It may be mentioned that the accused had previously also moved an application through counsel u/s 197 Cr.P.C. and if their appear once through counsel was sufficient compliance of the requirement of law, there was no question of giving an undertaking before this Court on 8.6.2006 that they shall appear before the Trial Court on 19.06.2006. The implication of the above undertaking was that the accused would appear personally before the Trial Court and when the accused did not appear personally before the Court, the Magistrate rightly held in his order dated 14.08.2006 that the accused had apparently committed violation of their own undertaking, and in this view of the matter, learned C.J.M. committed no illegality by rejecting their application moved u/s 197 Cr.P.C. taking into consideration the direction of this Court that their application shall be considered only after they have put in their appearance before the Court. The order passed by the learned C.J.M. does not suffer from any illegality. On the other hand the approach of the revisional court is erroneous as it has misinterpreted the order of this Court dated 08.06.2006 passed in Criminal Misc. Case No. 6408 of 2006.

The revision in this way deserves to be allowed to this extent that the order passed by the learned Additional Sessions Judge in Criminal Revision No. 165 of 2006 is liable to the set aside and the order of the learned C.J.M. dated 14.08.2006 deserves to be restored.

The revision is therefore partly allowed. The order passed by the learned Additional Sessions Judge, Court No. 2, Banda in Criminal Revision No. 165 of 2006 is set aside and that revision stands dismissed. The order of the C.J.M., Banda in Criminal Case No. 4224 of 2004 Lalit Kishore Singh and Anr. v. Jokhu Singh and Ors. dated 14.08.2006 is restored. However, if the accused applicants put in their personal appearance before the learned C.J.M. and after putting in personal appearance before him if they move afresh an application for discharge u/s 197 Cr.P.C. for want of sanction, then the same shall be considered and decided by the learned C.J.M. on merits after providing reasonable opportunity of hearing to both the parties.