Sohan Lal vs State of U.P.

B.N. Shukla, J.—This revision is preferred by the revisionist against the judgment and order dated 18.2.2009 passed by IInd Addl. Session Judge, Sonbhadra in Criminal Appeal No. 22 of 2008 thereby dismissing the appeal and confirming the judgment and order dated 16.6.2008 passed by the Addl. Chief Judicial Magistrate, Sonbhadra in Case Crime No. 201 of 1992 (State v. Channu and Ors.).

On 20.3.2009 learned Counsel for the revisionist and learned A.G.A. for the State were heard and then the order was passed releasing the revisionist on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned and realization of half of the fine amount was stayed till further orders. Thereafter two applications were moved by Smt. Shanti Devi supported with? affidavits alleging therein that the revisionist may be directed to implead her as respondent in the revision and the revisionist after his conviction has filed revision but he has obtained order without surrendering in the court concerned and the revisionist has not observed Provision of Chapter XVIII Rule 18 of the Allahabad High Court Rules, 1952 and by concealment of the material fact? played fraud on the court and has obtained order dated 20.3.2009.

Learned Counsel for the revisionist/opposite party has filed counter affidavit alleging therein that there is no provision in Cr.P.C. to implead Smt. Shanti Devi as party in the revision and the case instituted against the revisionist was State case and the State has been made party. It is also mentioned that there is no Provision in the Cr.P.C. to recall the order passed by the court contrary to Section 362 Cr.P.C. which creates bar to recall, alter or review any order passed by the court.

Heard Sri Ramesh Sinha, learned Counsel for the applicant, Sri Surendra Tiwari, learned Counsel for the revisionist/opposite party and perused the record.

It is submitted by the learned Counsel for the applicant that without surrendering in the court concerned the bail order has been obtained from the court and the revisionist has concealed the material fact and? played fraud on the court and in Chapter XVIII Rule 18 of the Allahabad High Court Rules, 1952 it is categorically laid down that no application for bail shall be entertained unless accompanied by a copy of the judgment and order appellate against or sought to be revised and the copy of the order passed by the Session Judge on the bail application for the applicant and unless the accused has surrendered except where he has been released on bail after conviction u/s 389(3) Cr.P.C.. It is also submitted that Smt. Shanti Devi is necessary party and the revisionist has not impleaded her as respondent and the revisionist be directed to implead her as respondent No. 2 in the revision.

Learned Counsel for the applicant has cited ruling of the Apex Court given in Vijay Shekhar and Anr. v. Union of India and Ors. reported in 2004 SCC (Crl) 1403.

Learned Counsel for the revisionist/opposite party has reiterated the same fact as mentioned in the counter affidavit and submitted that there is no need to implead Smt. Shanti Devi as respondent and the revisionist was on bail u/s 389(3) Cr.P.C. which was not cancelled by the appellate court and no fraud was played by the revisionist.

Learned Counsel for the revisionist/opposite party has cited ruling given in case of Sunita Jain v. Pawan Kumar Jain and Ors. reported in (2008) 1 SCC (Crl) 537.

It appears from the impugned judgment and order of the Addl. Session Judge against which revision is preferred that the revisionist was allowed bail u/s 389(3) Cr.P.C. and this bail order was not cancelled. The revisionist was directed by the appellate court to appear before the Addl. Chief Judicial Magistrate on 5.3.2009 and the Magistrate was directed to pass an order against the accused person on the point of sentence according to law. The Addl. Chief Judicial Magistrate, Sonbhadra in his judgment and order dated 16.6.2008 has convicted the revisionist and other co-accused on different charges and awarded sentence. The bail order of the revisionist granted u/s 389(3) Cr.P.C. by the appellate court was never cancelled. As per Provision of Chapter XVIII Rule 18 of the Allahabad High Court Rules, 1952? there is exception to the Rule that accused will not surrender in case he has been allowed bail u/s 389(3) Cr.P.C., hence plea taken by learned Counsel for the applicant the fraud was played on the court by concealing fact is not tenable and ruling cited by him given in case of Vijay Shekhar and Anr. v. Union of India and Ors. is not applicable in this case.

Learned Counsel for the revisionist/opposite party has cited ruling given in case of Sunita Jain v. Pawan Kumar Jain and Ors. in which it has been held by the Apex Court that as soon as a judgment is pronounced or order is made by a court, it becomes functus officio and the court has no power to review, override, alter or interfere with it u/s 362 Cr.P.C.

The revisionist has impleaded State as opposite party and learned A.G.A. was heard at the time of passing the order on 20.3.2009, hence there is no need to implead Smt. Shanti Devi as respondent No. 2.

Considering the facts and circumstances of the case and submissions made by the learned Counsel for the parties, I do not find any merit in the applications filed on behalf of Shanti Devi and are liable to be rejected.

Consequently, the impleadment application and recall application are hereby rejected.