PAWAN KUMAR PANDEY Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri B.B.Paul, learned counsel for the revisionist and Sri Nitin Srivastava, learned AGA for the State.

(2.) Brief facts of the case are that a first information report was registered against unknown persons by Anjanu Kumar Patel on 6.10.2007 with respect to an incident alleged to be taken place on 5.10.2007 wherein two persons Pawan Kumar and his wife Smt. Pushpa Devi was done to death by unknown miscreants. The said case was registered as Case Crime No. 362 of 2007 under Sections 147, 148, 149, 302 I.P.C., P.S. Soraon, District Allahabad. The name of the revisionist appears to have come into light during the course of investigation and he come to know his involvement in the present case and surrendered on 18.1.2008 and was sent to jail in the present case. A final report was submitted by the Investigation Officer of S.I.S., Allahabad on 5.2.2008 and submitted a police report under Section 169 Cr.P.C. with recommendation that the revisionist be released on bail in the light of police report submitted under Section 169 Cr.P.C. The said report was submitted to the C.J.M., Allahabad and in pursuance of the same, C.J.M., Allahabad vide order dated 6.2.2008 released the revisionist on bail on his personal bond of Rs. 20,000/- and two sureties of like amount subject to the condition that if any evidence collected by the prosecution in future, he would surrender in the court. The revisionist was released thereafter in pursuance of the order of the Magistrate passed on 6.2.2008. It appears from the record that the matter was transferred to C.B.C.I.D. which investigated the case and submitted the charge sheet against the revisionist and two other persons, namely, Mallu Pasi and Munna Yadav on 11.11.2011 in the court of Special C.J.M., Allahabad which was registered as Case No. 3191 of 2011 (State Vs. Pawan Kumar Patel and others) under Sections 147, 148, 149, 302 I.P.C., P.S. Soraon, District Allahabad on 5.12.2014. The learned Magistrate passed an order directing the revisionist to surrender before the Court in view of the charge sheet being submitted against him on 11.11.2011 and to obtain regular bail as he was granted bail in view of provision under Section 169 Cr.P.C. An application moved by C.B.C.I.D before the C.J.M. for committing the case to the court of Session as the case has not been committed to the Court of Session and is pending for committal proceeding because of the fact that the revisionist was released on 6.2.2008 in view of the police report submitted under Section 169 Cr.P.C. but the charge sheet has been submitted against him on 11.11.2011 against him and co-accused for the offences in question and till date the revisionist has not obtained regular bail. Hence, the committal proceeding are being delayed. Hence, C.B.C.I.D. prayed that the order dated 5.2.2008 passed by the Magistrate be complied with. The revisionist challenged the charge sheet of the present case before this Court in 482 Cr.P.C. Application No. 1335 of 2014 which was dismissed by this Court on 16.1.2014. He again moved Criminal Misc. Application No. 3830 of 2015 which was also dismissed on 25.2.2015 by which the order of the Magistrate dated 5.12.2014 was affirmed by this Court. The revisionist, thereafter, has again moved an application before the C.J.M., Allahabad on 24.4.2015 for recalling the ex parte order dated 5.12.2014 through his counsel and the same has been rejected by the impugned order dated 22.1.2016 directing him once again giving him opportunity to appear and file regular bail in the case without any further delay and has fixed 2.2.2015 as next date. Hence, the present application for quashing the impugned order dated 22.1.2016 passed by this Court on the ground that the said order was beyond the scope of Section 209 Cr.P.C.

(3.) It has been argued by the learned counsel for the revisionist that since once the revisionist has already been released on bail. He is not require to surrender and file fresh bail bond or to first come in jail in view of decision of this Court in the Case of Gyan Swroop Gupta Vs. State of U.P. 993 U.P. Criminal Rulings 427-433. He further argued that the Magistrate ought to have committed the court of Sessions without procuring physical appearance of the revisionist and pressed his application dated 24.4.2015 for recalling the order dated 5.12.2014. He argued that the prosecution did not filed any objection to the said application and the learned Magistrate rejected the same by passing the impugned order which was beyond the scope of Section 209 Cr.P.C. and further directed the revisionist to obtain regular bail. He further submitted that in passing the impugned order, learned Magistrate has omitted to notice and judicially consider the recall application and scope of Section 209 Cr.P.C. which stipulates a Magistrate to commit case to the Court of Session and the same has occasioned substantial failure and miscarriage of justice of the revisionist. He further argued that the revisionist having being released on bail on 6.2.2008 and the same having not been abused by the revisionist in any manner and on 11.11.2011 the prosecution having submitted charge sheet it was obligatory on the learned Magistrate to commit the case to the court of Session as stipulated under Section 209 Cr.P.C, but curiously enough in passing the impugned order dated 22.1.2016 and the orders proceedings the same, learned Magistrate has omitted to notice and consider the aforesaid material aspects the case which has occasioned substantial failure and miscarriage of justice to the revisionist. He further argued that after submission of charge sheet dated 11.11.2011 revisionist regularly appearing before the learned Magistrate and since case under Section 302 I.P.C. is triable by the Court of Session, even in the absence of the applicant learned Magistrate ought to have committed the case to the Court of Session without entering into nature of bail granted to the applicant in view of judicial Pronouncements noted hereunder:-