Sanjay Singh vs State Of U P And Another

This petition under Article 227 of the Constitution is directed against an order of Mr. Avnish Kumar Pandey, the learned Additional Sessions Judge, Court No. 16, Varanasi dated 10.02.2020, made in Criminal Revision No. 220 of 2019. By that order, the learned Judge has set aside an order passed by the Judicial Magistrate, Court No. 4, Varanasi dated 20.07.2019, in Case No. 119 of 2018, State vs. Ram Dular Singh, rejecting an application for discharge under Section 239 Cr.P.C. with a direction to the Magistrate to reconsider the discharge application dated 06.05.2019 afresh on merits.

Learned counsel for the petitioner, Mr. Pankaj Roy has challenged the learned Judge's orders on the ground that the second opposite party had moved the Magistrate, seeking stay of the non bailable warrants issued against him, pending consideration of his discharge application made through counsel. The application for stay was rejected by the Magistrate vide order dated 20.07.2019. This order was challenged by the second respondent, Ram Dular Singh, before this Court by means of an application under Section 482 No. 32968 of 2019. The said application under Section 482 Cr.P.C. was heard and summarily dismissed by an order dated 11.09.2019. It is urged by the learned counsel for the petitioner that challenging the same order, Ram Dular Singh, second respondent, had preferred a criminal revision to the learned Sessions Judge, Varanasi bearing Criminal Revision No. 220 of 2019. This revision has been allowed by the learned Additional Sessions Judge, Varanasi vide the order impugned dated 10.02.2020, setting aside the Magistrate's order dated 20.07.2019. It is urged by Mr. Pankaj Roy, learned counsel for the petitioner, that the order passed by the learned Sessions Judge is without jurisdiction inasmuch as the Magistrate's order dated 20.07.2019 has already been upheld by this Court in an application under Section 482 Cr.P.C. vide order dated 11.09.2019. He submits that it was, therefore, no longer open to the learned Additional Sessions Judge to have interfered with the order dated 20.07.2019.

Today, this matter has come up for hearing and parties have exchanged affidavits.

Mr. Manish Tiwari, learned Senior Advocate assisted by Mr. Ashwani Kumar Awasthi, learned counsel appearing for the second respondent points out that the stand taken by the petitioner about the course of proceedings is not well founded. He has taken the Court through the record and pointed out that vide order dated 20.07.2019, a copy of which is annexed as CA-1 to the counter affidavit, the Magistrate had declined to stay execution of the non bailable warrants issued, pending the discharge application on ground that the second respondent, Ram Dular Singh, had neither applied for nor secured bail. By the same order, the learned Magistrate proceeded to reject the discharge application with a cryptic remark to the following effect:

"उन्मोचन प्रार्थना पत्र भी बलहीन होने के कारण खारिज किया जाता है।"

Mr. Tiwari points out that the order dated 20.07.2019, passed by the learned Magistrate has two distinct parts to it. By the first part, he declined to grant stay of the coercive processes issued, pending consideration of the discharge application, and by the latter part, disposed of the discharge application. Mr. Tiwari further points out that the aforesaid order dated 20.07.2019 was challenged by respondent no. 2 before the learned Sessions Judge vide Criminal Revision No. 220 of 2019 before the Sessions Judge. An application was made in the said revision, seeking stay of operation of the Magistrate's order pending revision. This application was made on 13.08.2019. The stay application made in the revision was rejected by the learned Sessions Judge, Varanasi vide order order dated 13.08.2019. The aforesaid order passed in revision on 13.08.2019 was challenged by the second respondent, Ram Dular Singh by means of Application (under Section 482 Cr.P.C.) No. 32968 of 2019, which came to summarily dismissed vide order dated 11.09.2019. In due course, Criminal Revision No. 220 of 2019 came up for determination before the learned Additional Sessions Judge, Varanasi who has now proceeded to allow the revision and remit the matter to the Magistrate for consideration of the discharge matter afresh. Mr. Tiwari, therefore, emphatically submits that it is incorrect to suggest that the respondent no. 2 had challenged the orders of the Magistrate dated 20.07.2019 in the first instance before this Court, and failing here, approached the learned Sessions Judge against the same order, which has now been set aside.

Mr. Pankaj Roy, learned counsel for the petitioner submits that after all, it is the same order dated 20.07.2019, which has been placed for scrutiny both before the learned Sessions Judge and this Court. He says, therefore, that once this Court has had occasion to look into the order dated 20.07.2019, in whatever way, and has discarded the challenge, it is no longer open to the learned Additional Sessions Judge to interfere with that order in a Revision. He further argues that in this case, the order of the learned Sessions Judge interfering with the Magistrate's order is flawed, because the Magistrate, on the basis of evidence on record, found that it is not a case where discharge could possibly be granted.

This Court has considered the rival submissions of parties and perused the record. The first part of the challenge raised by the petitioner is based on the ground that the order passed by the learned Sessions Judge is ultra vires because he has overturned an order that has already been upheld by this Court. In the opinion of this Court, that submission is not tenable. A perusal of the Magistrate's order and the course of proceedings clearly indicate that the Magistrate's order dated 20.07.2019 had two distinct parts to it. By the first part, he had declined to grant stay of the coercive process issued, and, by the second part, proceeded to reject the discharge application. This order was put in issue in Criminal Revision No. 220 of 2019. Now, to the understanding of this Court, it is not so much about the two parts of the order dated 20.07.2019 passed by the Magistrate that the issue here has arisen; it is about the orders that were made in Revision by the learned Sessions Judge on the interim application, and that made finally. It is the last mentioned orders that would truly hold the answer. The learned Sessions Judge, by the earlier order dated 13.08.2019, dealt with the stay application made in Criminal Revision No. 220 of 2019 and rejected it vide an order dated 11.09.2019. The order dated 13.08.2019 was not a disposition or determination of the Criminal Revision pending before him. It dealt with the application for interim stay and no more. The stay application being rejected vide order dated 11.09.2019, the second respondent put that order in issue before this Court vide Application under Section 482 Cr.P.C. No. 32968 of 2019. This Court dismissed the said application vide order dated 11.09.2019. The scope of challenge laid in Application (Under Section 482 Cr.P.C.) No. 32968 was confined to the validity of the order passed by the learned Sessions Judge on the interim application in the pending revision and nothing more. The validity of the order dated 20.07.2019 was not the subject matter of challenge before this Court in the Application under Section 482 Cr.P.C., last mentioned. Therefore, the submission of Mr. Pankaj Roy that the order dated 20.07.2019 had been, after all, scrutinized by this Court in some manner and approved, cannot be accepted. This takes this Court to other part of the Mr. Roy's submission. The order passed by the Magistrate dated 20.07.2019, by  which he has rejected the discharge application, is urged to be an order passed within the Magistrate's jurisdiction to refuse discharge. It must be remarked that the learned Sessions Judge, by the order impugned, has interfered with the Magistrate's order because the right to seek discharge is a statutory right available to an accused. The Magistrate's order shows that the prayer for discharge has been disposed of laconically, without assigning any reason. In the opinion of this Court also, the order of discharge is too cryptic to be sustained. Thus, whatever be the reasons assigned by the learned Sessions Judge, in the opinion this Court, the learned Judge has rightly remanded the matter to the Magistrate, who is required to deal with the discharge application and decide the same in accordance with law. This Court, therefore, does not find any force in this petition under Article 227 of the Constitution.

Before parting with the matter, this Court records that the order passed by the learned Sessions Judge on 10.02.2020 in Criminal Revision No. 220 of 2019, was well within his jurisdiction. His comments in the matter have been perused. That matter stands closed.

Accordingly, this petition fails and is dismissed.

Interim order dated 13.01.2021 is hereby vacated.

Let this order be communicated to Mr. Avanish Kumar Pandey, learned Additional Sessions Judge, Court No. 16, Varanasi through the learned Sessions Judge Varanasi by the Joint Registrar (Compliance) within 72 hours.