AJAY RASTOGI Vs. STATE OF U P

JUDGEMENT

(1.) MR . Rajul Bhargava, Advocate assisted by Mr. Ratnesh Chandra, Advocate was heard on behalf of the petitioners, Mr. Nadeem Murtaza, Advocate on behalf of the complainant and Ms. Smiti Sahay, learned A.G.A. for the State were also heard.

(2.) BY means of the instant petition under Article 226 of the Constitution of India, the petitioners have made following prayer: -

(3.) BEFORE proceeding further, it is necessary to give a brief description of the fact, which gave rise to the instant petition. An F.I.R. was lodged against the petitioners and three other persons for the offence under Sections 147, 148, 149 and 302 I.P.C. In the said case, the elder brother of the complainant was murdered on 18.4.1991 at about 11:00 p.m. This F.I.R. was lodged in the same night after one hour and fifteen minutes of the occurrence at about 00:15 a.m. Some of the accused persons were granted bail by the court of sessions and remaining by the High Court. During the pendency of the trial, all the accused persons were on bail. Vide judgment dated 31.1.2001, the present petitioners, namely, Anil Rastogi, Ajay Rastogi and one Dr. Atul Rastogi were convicted for the offence under Section 302 read with Section 149 and Section 148 I.P.C. with imprisonment for life. However, another accused namely, Giriraj Rastogi was acquitted and fifth accused Anand Swaroop died during the pendency of the trial. The said judgment was challenged by preferring Criminal Appeal No. 60 of 2001. In the said appeal, the execution of the sentence of all the appellants was suspended and they were released on bail during the pendency of the appeal and the appeal was heard by a Division Bench of this Court. However, both the Hon'ble Judges delivered their separate opinion on different dates. Both the Hon'ble Judges concurred in their views regarding the conviction of the present petitioners. However, there was difference of opinion regarding the conviction of third appellant Dr. Atul Rastogi. Due to this difference of opinion, the Division Bench of this Court vide order dated 11.7.2006 directed that the appeal be laid before the third Judge under Section 392 Cr.P.C. The said appeal before the third Judge is still pending. After the dismissal of the appeal of the present petitioners, they moved their applications. Both the Judges of the Bench directed that the present petitioners be taken into custody. In pursuance thereof, they were advised by their counsels to move application for their surrender. They surrendered before the court of Chief Judicial Magistrate on 4.8.2006 and were taken into custody. Two separate special leave petitions before Hon'ble the Supreme Court were filed, which were registered as Criminal Appeal No. 1123 of 2007 and 1117 of 2007. In the said appeals, bail applications moved on behalf of the petitioners were rejected. Subsequently an application was moved by the present petitioners before Hon'ble the Apex Court with the prayer that their appeals be remanded for decision by the third Judge. Hon'ble the Apex Court disposed of the said applications vide order dated 18.3.2015 and said appeals were dismissed as withdrawn and Hon'ble the Apex Court was also of the view that as the matter was referred to third Judge, therefore, the third Judge was competent to hear the entire appeal and not only the appeal regarding which there was difference of opinion between the Judges. The said appeal bearing Criminal Appeal No. 1117 of 2007 was dismissed as withdrawn. Hon'ble the Apex Court in the said order observed as under: -