SANJAY NATH TIWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri Ashok Nath Tripathi, learned counsel for the petitioner, learned A.G.A. for the State and perused the record. The writ petition is being disposed of at the admission stage itself. The instant writ petition under article 226 of the Constitution of India is directed against the order dated 25.7.2008 passed by Chief Judicial Magistrate, Varanasi in case crime no.421 of 2008 under sections 292, 294 I.P.C. (annexure no.6), P.S. Sigra, Varanasi, and judgment and order dated 23.7.2010 passed by Additional Sessions Judge / Special Judge (Prevention of Corruption Act), Varanasi in criminal appeal no.150 of 2008 (annexure no.8). In the aforesaid crime number, one Dev Bhushan Gupta moved an application for release of a computer set including monitor seized by the police and the same was ordered to be released in his favour vide order dated 14.7.2008. At the relevant time, the petitioner Sanjay Nath Tiwari was posted as Station Officer Incharge, P.S. Sigra, Varanasi. When the computer was not released by the petitioner, by notice dated 19.7.2008, the petitioner was ordered to submit an explanation by 23.7.2008. A report was sent by the petitioner to the Magistrate on 22.7.2008 stating therein that the claimant did not come to the police station to receive the computer and that he had not disobeyed the orders of the Court. On 23.7.2008, a notice under section 350 Cr. P.C. was issued by Chief Judicial Magistrate, Varanasi to the petitioner stating therein that the petitioner did not release the case property despite the orders of the Court and did not submit satisfactory explanation and further that the counsel for the accused had given an affidavit alleging that S.O. Sigra, while coming to the Court, stopped him on the road and threatened him with dire consequences and demanded bribe. The petitioner was directed to release the case property and to be personally present on 25.7.2008 before the Court to show cause why he be not convicted for committing contempt of Court.

(2.) ON 25.7.2008, the petitioner did not appear before the Magistrate, but sent a written explanation (annexure no.5) stating therein that the applicant or his counsel did not come to the police station to take custody of the released property. The father of the accused was an advocate and was angry, as his son was detained by the police and that false affidavit was given. It was further stated that the case property of co-accused Raj Kumar Jaiswal has already been released on 22.7.2008. On 25.7.2008, the impugned order (annexure no.6) was passed by Chief Judicial Magistrate, Varanasi imposing a fine of Rs.50/- on the petitioner. The S.S.P., Varanasi was directed to deduct the amount from the salary of the petitioner and to keep a copy of the order on his personal file.

(3.) THE aforesaid provision specifically provides that if a witness, summoned by a criminal Court, neglects or refuses to attend the Court despite summons, then he can be punished under this provision. The petitioner was not a witness. The Chief Judicial Magistrate, Varanasi was not holding any trial at that stage. He simply called for an explanation of the petitioner for not releasing the case property. The personal presence of the petitioner in Court was not required, as he had submitted his explanation in writing. Section 350 Cr. P.C. was not attracted in the case. At the most, petitioner could have been found guilty of any other provisions of law, which might have been applicable, but certainly section 350 Cr.P.C was not applicable in the case of petitioner. Thus, the conviction of the petitioner under section 350 Cr. P.C. is illegal. The orders passed by Chief Judicial Magistrate, Varanasi and Additional Sessions Judge, Varanasi can not be sustained and are liable to be quashed.