STATE OF U.P. Vs. BAL CHAND CHAURASIA

JUDGEMENT

(1.) OUT of four respondents, three have appeared through counsel whose names appear in the cause list. Respondent No. 2, Pappu Chaurasia, is reported absconding by the Chief Judicial Magistrate, Azamgarh.

(2.) THE difficulty with the court is that this Court has been reading the words 'any subordinate court' appearing in Section 390, Cr.P.C. to mean the Chief Judicial Magistrate. We respectfully want to point out that 'any subordinate court' may include the Chief Judicial Magistrate, but when it is an appeal in connection whereof the powers under Section 390, Cr.P.C. have to be exercised evidently by the appellate court then it has to be constructed so harmoniously as to explaining the full import of the words for making the exercise of that power under the provision more meaningful and workable. 'Any subordinate court' appearing in Section 390 could never be the court only of Chief Judicial Magistrate of any district if the judgment of acquittal has been passed by a Court of Sessions manned either by the Sessions Judge or by an Additional Sessions Judge, who exercise powers in the Court of Sessions by virtue of Section 9, Cr.P.C.

(3.) IN the present case, the Chief Judicial Magistrate was directed to issue warrant of arrest and what has happened is that the Chief Judicial Magistrate has reported that respondent No. 2 is absconding. Now, the difficulty with this Court is that the Chief Judicial Magistrate does not have a single leaf of post conviction record and as such, if we desire him to declare the respondent No. 2 an absconder, the Chief Judicial Magistrate shall be finding himself amidst a peculiar situation as in connection of which record he should issue a direction or an order of proclamation under Section 83 of the Cr.P.C. We want to remind ourselves that even if a Chief Judicial Magistrate does pass such an order declaring someone an absconder in respect of a record which is under the domain, lawfully, of a superior court, like, the Court of Session, he may be indulging in an act of impropriety and insubordination as he is judicially subordinate to the Court of Sessions. Judicial wisdom requires that we, as such, direct the Additional Sessions Judge, Court No. 5, Azamgarh by whom Sessions Trial No. 136 of 2002 was disposed of by judgment of acquittal dated 21.9.2002, to seek all records from the Chief Judicial Magistrate, Azamgarh in respect of the present appeal and ensure taking steps for declaring respondent No. 2, i.e., Pappu Chaurasia Son of Saltu Chaurasia, Resident of Village Hussainganj, Police Station -Sidhari, District -Azamgarh an absconder and send a report with a copy of the order passed by him in the above behalf whereafter the appeal may be listed before the appropriate Bench.