MAHENDRA Vs. STATE OF U.P. AND ORS.

JUDGEMENT

(1.) HEARD learned Counsel for the applicant and learned AGA for the State and perused the material placed on record.

(2.) THE brief facts giving rise to this application in nut shell is that the applicant by way of filing this application under Section 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.

(3.) 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has claimed that he be afforded the benefit of principle of 'stare decisis' and the proceeding against him should be withdrawn.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.