Mahendra vs State of U.P. and Others

Surendra Singh, J.—Heard learned Counsel for the applicant and learned AGA for the State and perused the material placed on record.

The brief facts giving rise to this application in nut shell is that the applicant by way of filing this application u/s 482 Code of Criminal Procedure has sought to challenge the proceedings in case No. 676 of 2004, under Sections 302, 307 IPC of police station B.B. Nagar, District Bulandshahr arising out of Case Crime No. 66 of 1992 pending in the court of Chief Judicial Magistrate, Bulandshahr.

Learned Counsel for the applicant has contended that there were four accused persons including the applicant mentioned in the FIR and against whom charge sheet was submitted u/s 302 and 307 IPC. Co-accused Om Prakash and one another Nepal were tried in S.T. No. 462/1992 by the sessions court and co-accused Shankar was trial in S.T. No. 137/1994 and all the three co-accused persons have been acquitted by the trial court vide judgment and orders dated 30.01.1995 and 5.06.2002 respectively. The photo copies of the judgment and order of acquittal are annexed as Annexure Nos. 3 and 5 to the affidavit.

This is not disputed that the applicant was serving in armed forces and he could not be arrested rather non-bailable warrant was issued against him. Pursuant to the warrant of arrest he appeared before the Incharge, Chief Judicial Magistrate, Bulandshahr on 28.09.1993 with escort party but his presence before the court was not treated as ''appearance'' in court in compliance of arrest warrant, for the reasons that he did not surrender before the court rather he was taken back by the escort party in terms of the instructions/direction issued by their commanding officer. Since then he did not appear before the court concerned and on account of that his case was separated and the other co-accused persons were tried and acquitted by the trial court. The counsel appearing on behalf of applicant submits that since the other co-accused persons have already been acquitted by the trial court vide judgment and orders dated 30.01.1995 and 5.6.2002 respectively and there is no chance of case resulting into conviction of the applicant and if the case is allowed to continue against him, it will only be a sheer formality and wastage of valuable time of the court and, therefore, the applicant has claimed that he be afforded the benefit of principle of ''stare decisis'' and the proceeding against him should be withdrawn. Reliance has been placed by him on the decision of this Court in case of Darshan Singh and Anr. v. State of U.P. 2006 U.P. C.R 422 and Kalimuddin Khan v. State of U.P. and Ors. LIII (2005)ACC 305 and Yaseen v. State of U.P. and Anr. (2005) 53 ACC 636.

On the other hand learned AGA has contended that applicant did not appear/surrender in the court till date. He has further submitted that the judgment and order of acquittal of co-accused rendered in earlier trials arising out of same prosecution is wholly irrelevant in the case of present applicant who is to be tried subsequent the earlier one. Much emphasis has been made on the non-admissibility of the judgment of acquittal in the present trial in view of Sections 42 and 44 of Indian Evidence Act. He has further contended that the case of the present accused-applicant has to be decided only on the basis of evidence adduced during the course of his trial. The reliance has been placed by him upon the view expressed by Hon''ble Supreme Court in the case of Rajan Rai v. State of Bihar 2006 (1) SCC 209.

Having heard learned Counsel for the applicant and having perused the material placed on record, I am of the constraint view that it will be travesty of justice to close the case against the accused who has not appeared before the court at all. The principle of ''stare decisis'' should not be applied to the case of accused-applicant who has been evading the process of law. It will be misuse of power of the court if such an order is passed in respect of these persons who did not appear before the court concerned despite non-bailable warrant issued against him and thus having no respect for the order of the court. Apart from this the sum and substance of the dictum of the Apex Court in the case mentioned herein above, does not permit me to take a different view except the view taken by the Apex Court. In these circumstances the ends of justice would be sub-served if this Court refrain itself from interfering in this application at this stage.

The application is bereft of any merit and is hereby rejected. Interim order, passed by this Court dated 10.12.2004 is, accordingly, vacated.

However, since the matter is very old i.e. of year 1992, the trial court/court below is directed to make every endeavour to conclude the trial proceeding expeditiously without unreasonable delay in accordance with law.

Let the copy of this order be sent to the trial court/court concerned for communication and necessary compliance.