ABDUL RASHID Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The accused-applicant, in revision, named Abdul Rashid, and his son, Shahwaz, were trial for the offence under Section 3 of Railway Property (Unlawful Possession) Act, 1966.

(2.) On 7-11-1978 the house of Abdul Rashid applicant in revision, situate near Railway Compound, Hapur, district Ghaziabad, was searched by Sri A. N. Tewari along with other police force. Two iron ladders and four tie bars were recovered. On the basis of the recovery-memo a case was registered in the general diary at G.R.P. Hapur. The accused were put on trial and they have been convicted by the Judicial Magistrate, Northern Railway, Moradabad, through his judgment dated 15-12-89. Both were convicted and sentenced to one year's rigorous imprisonment. Aggrieved by the judgment of the trial Court the accused preferred Criminal Appeal No. 4 of 1990 which was decided by the learned Sessions Judge, Moradabad on 20/03/1990. The appeal of Shahwaz was allowed and that of the accused-applicant, Abdul Rasheed, was dismissed. Against the judgment of the appellate Court dated 20/03/1990, the accused-applicant, namely, Abdul Rasheed, preferred the above noted revision petition under S. 397/401, Cr.P.C. A learned single Judge of this Court summoned the record on 24-4-1990. On 16-8-1990 the learned single Judge issued notice for enhancement of sentence against Abdul Rasheed, accused-applicant, and also notice to Shahwaz why he should not be convicted and sentenced according to law. At the end of his order the learned single Judge expressed himself as below:

(3.) From the perusal of the order dated 15-10-90 it appears that Shahwaz accused has furnished surety and the accused-applicant, Abdul Rasheed, was also directed to be release on bail on furnishing two sureties of Rs. 5000.00 each and the personal bond of the like amount to the satisfaction of the Chief Judicial Magistrate, Moradabad. Per report of the office dated 26-10-90 it appears that notice of enhancement of sentence issued against the applicant, Abdul Rashed could not be served with the report that "he is in jail". It appears on the office report the learned single Judge passed the following order :