# Anita Gajraj v. State of U.P

- **Citation:** (2024) 2 ILRA 1378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** Criminal Appeal No. 1593 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anita-gajraj-v-state-of-u-p-51254
- **Pages:** 8

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 20, 50, 56 & 57 - Appellant
challenged conviction under Section 8/20 NDPS
2 All. Anita Gajraj Vs. State of U.P.
1379
Act and sentence of 10 years' rigorous
imprisonment with a fine of Rs.1,00,000/-, with
6 months' additional imprisonment in default, by
Additional Sessions Judge, Bahraich, dated
28.02.2019. Court held: (1) No illegality or
perversity in trial court's findings; prosecution
evidence, including recovery of 5.238 kg charas,
consistent and corroborated. (2) Procedural
requirements under NDPS Act complied with;
appellant's
consent
to
search
by
police
recorded, negating claims of non-compliance
with Section 50. (3) Conviction and substantive
sentence of 10 years confirmed as minimum
prescribed under Section 20. (4) Default
imprisonment reduced from 6 months to 2
months, considering appellant's poverty and
family circumstances (Shanti Lal Vs St. of M.P.,
2007 SCC OnLine SC 1077). Appeal partly
allowed; appellant to be released if 10 years'
sentence and 2 months' default imprisonment
served, unless required in another case. (Paras
15-27)

Appeal Partly Allowed.

Case Law Cited:

## Text

1378 INDIAN LAW REPORTS ALLAHABAD SERIES
proved by clear and cogent evidence
including eye-witnesses."

70. Thus, we find that Hon'ble Apex
Court in its enumerable decisions has
categorically held that evidence of eyewitness, if found truthful, can not be
discarded simply because the witnesses
were relatives of the deceased. The only
caveat is that the evidence of interested
witnesses should be subjected to careful
scrutiny and accepted with caution.

71. Furthermore, close scrutiny of the
eye-witnesses PW-1 and PW-4 goes to
show that they witnessed the incident in
question. The evidence of PW-5 Dr. N.P.
Singh, who conducted the post-mortem and
the
post-mortem
report
points
out
conclusively to the culpability of the
appellants for the commission of the offence.

72. Even the evidence of PW-8 Dr. O.P.
Agrawal, who medically examined the
injured P.W.-1 Angoori Devi, also points out
conclusively to the culpability of the
appellants for the commission of the offence.

73. From the statement of P.W.-1 and
P.W.-4,
we
are
satisfied
about
the
commission of the offence by the appellants.
We have carefully gone through the
judgment of the trial court and we are
satisfied that the trial court has appreciated
the material on record in right perspective
and learned counsel for the appellants could
not point out any perversity in the finding of
the trial court. Thus, we do not find any
infirmity, illegality or perversity in the
judgment and order dated 08.07.1983 passed
by 2nd Additional Sessions Judge, Budaun in
S.T. No.27 of 1981, under Section 302 read
with Section 34 IPC and Section 323 read
with 34 IPC recorded conviction of the
appellants and the sentence awarded to them
by the impugned judgment.

74. In view of the foregoing
discussions, these appeals lack merits and are
accordingly dismissed. There shall be no
order as to costs.

75. The surviving appellants Banwari
and Jhamman Lal are on bail. Chief Judicial
Magistrate, Badaun is directed to take them
in custody in the aforesaid case and send
them to Jail to serve out the sentences
awarded by the trial court and affirmed by us.

76. Let a copy of this judgment and
order be sent to the court concerned
alongwith the lower court record within a
week for compliance. The compliance report
shall be sent by the court concerned to this
Court within a further period of fifteen
days.
----------
(2024) 2 ILRA 1378
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1593 of 2019

Anita Gajraj ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Bal Krishna Shukla, Manoj Kumar Singh

Counsel for the Respondent:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 20, 50, 56 & 57 - Appellant
challenged conviction under Section 8/20 NDPS
2 All. Anita Gajraj Vs. State of U.P.
1379
Act and sentence of 10 years' rigorous
imprisonment with a fine of Rs.1,00,000/-, with
6 months' additional imprisonment in default, by
Additional Sessions Judge, Bahraich, dated
28.02.2019. Court held: (1) No illegality or
perversity in trial court's findings; prosecution
evidence, including recovery of 5.238 kg charas,
consistent and corroborated. (2) Procedural
requirements under NDPS Act complied with;
appellant's
consent
to
search
by
police
recorded, negating claims of non-compliance
with Section 50. (3) Conviction and substantive
sentence of 10 years confirmed as minimum
prescribed under Section 20. (4) Default
imprisonment reduced from 6 months to 2
months, considering appellant's poverty and
family circumstances (Shanti Lal Vs St. of M.P.,
2007 SCC OnLine SC 1077). Appeal partly
allowed; appellant to be released if 10 years'
sentence and 2 months' default imprisonment
served, unless required in another case. (Paras
15-27)

Appeal Partly Allowed.

Case Law Cited:

1. Shanti Lal Vs St. of M.P., 2007 SCC OnLine SC
1077 (Para 16)

2. Alister Anthony Pareira Vs St. of Mah., (2012)
2 SCC 648 (Para 17)

3. Dhananjay Chatterjee Vs St. of W.B., (1994)
2 SCC 220 (Para 19)

4. Ravji Vs St. of Raj., (1996) 2 SCC 175 (Para
20)

5. St. of M.P. Vs Bablu Natt, (2009) 2 SCC 272
(Para 21)

6. St. of M.P. Vs Mehtab, Criminal Appeal No.
290/2015, dated 13.02.2015 (Para 22)

7. Brajendra Singh Vs St. of M.P., (2012) 4 SCC
289 (Para 23)

8. St. of M.P. Vs Surendra Singh, (2015) 1 SCC
222 (Para 24)

9. Bachan Singh Vs St. of Punj., (1980) 2 SCC
684 (Para 23)
10. Machhi Singh Vs St. of Punj., (1983) 3 SCC
470 (Para 23)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. List has been revised.

2. Heard learned Counsel for the
appellant, Shri Awadhesh Kumar Pandey,
learned A.G.A. for the State-respondents
and perused the material placed on record.

3. This appeal has been filed against
the judgment and order dated 28.02.2019
passed by learned Additional Session Judge
VIIth,
Bahraich
in
Special
Session
No.32/2014 Case Crime No.1139/2013,
Police Station-Rupaidiha, District-Bahraich
thereby convicting the appellant under
Section 8/20 N.D.P.S. Act and whereby
sentencing under Section 8/20 to appellant
to undergo imprisonment of ten years and
also pay fine of Rs.100000/- (One Lakhs)
in the condition of default of fine passed
under Section 8/20 of N.D.P.S. Act
appellant shall further undergo six months
further imprisonment and all the sentences
run concurrently inter-alia on the following
amongst other grounds.

4. Brief fact of the case emerges as
such that on 26.12.2013 at 20.00 hours, the
informer informed to the police that one
Nepali woman wearing green color dress
carrying illegal drug will arrive India via
Nepalganj Rupaidiha main highway from
Nepal. On receiving this information, Ravi
Shankar Kumar, Assistant Commander
made Special Checking Squad comprising
of
Sub-Inspector,
Munni
Bai,
Head
Constable, Vallabh Joshi, Constable Hari
Om Yadav and other personnel. The special
checking squad along with the informant
reached the check post which was situated
at Nepalganj Rupaidiha highway and
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
started waiting for accused-appellant. At
18:30 hours a woman carrying a baby
alongwith her luggage de-boarded a bus
and on pointing out of informer, the
suspected accused was intercepted for
checking. Even as the accused opened the
bag, she started fleeing from the spot. But
the special checking squad immediately
nabbed her and on asking her name and
address and the reason for fleeing, she told
that there is charas in her bag and further
told her name Anita Gajraj, W/o Heera
Singh, R/o Village-Rukaza, P.O-Khadi,
Police Station-Musikat, District-Rukum,
Nation-Nepal, aged 30 years. The special
team informed the accused about her right
as per the provisions of N.D.P.S. Act, that
she can let her search be conducted before
the Magistrate or a gazetted officer, on
which she replied that I am carrying charas
then I do need to create more witnesses in
my case and she insisted the squad team to
search her, thereafter a consent letter was
drafted and the woman was searched
thoroughly and contraband article was
tested by Drug Testing Kit and prima facie,
the recovered contraband article was found
to be charas, therefore, the accusedappellant was immediately arrested. It was
found that a box containing charas, Indian
Rs. 1500/- and a Micromax Mobile. Then,
the information regarding arrest of the
accused-appellant was given by the police
authority to her relatives. On weighing by
the scale available there, the recovered
charas was 5kg and 238gms. Out of which,
25-25 gms charas was separately sealed for
sample and the remaining charas was
sealed in another packet. The accused was
brought to the police station- Rupaidiha,
where the case under section 8/20 of NDPS
Act was registered as case crime no. 1139
of 2013.On asking the reason for bringing
or taking the alleged charas, the accused
told that she is habitual seller of charas
which costs around Rs. 15,000/- per
Kilogram and she works in a Hotel and
doing this business for seven to eight years.

5. After investigation, charge-sheet
was
submitted
against
the
accusedappellant before concerned court, Bahraich.
This case was transferred to the VIIth
Additional
Sessions
Judge,
Bahraich,
where the charge was framed. The accusedappellant pleaded not guilty of the charges
leveled against her and she contended that
she was falsely implicated in this case and
claimed to be tried.

6. In order to prove its case, the
prosecution examined PW 1 Ravi Shankar
Kumar; PW 2 Munni Bai, PW 3 Ram
Kumar Gautam and PW4 Ram Daras
Yadav.

7. The trial court on the basis of
evidence adduced by the prosecution held
that the prosecution succeeded to prove the
charges against the appellant. It was also
held that all the procedural technicalities
were complied with. Thus, the trial court
convicted the appellant for possessing the
contraband
article
Charas
from
her
possession and sentenced the appellant as
aforesaid.

8. Being aggrieved and dissatisfied
with the aforesaid order, the appellant
preferred this appeal before this Court.

9. I have heard learned counsel for the
parties and perused the record.

10. Submission of the counsel for the
appellant is that the finding given by the
trial court is perverse and bad in the eye of
law. There are major contradictions in the
statement of the witness. He has also
2 All. Anita Gajraj Vs. State of U.P.
1381
submitted that there is no independent
witness examined by the prosecution. All
the witnesses shown in the recovery memo
is false and concocted and there was noncompliance of the mandatory provision of
NDPS Act at the time of search and seizure.
It was not told to the appellant that he has
right to be searched before the Gazetted
officer or magistrate. Thus, there was also
non-compliance of Sections 50, 56 and 57
of NDPS Act.

11. The counsel for the appellant
further argued that the appellant was
neither in possession of any narcotics nor
any incriminating article recovered from
his possession.

12. Lastly, learned counsel for the
appellant submits that the appellant has no
previous criminal history and she is
languishing in jail since 27.12.2013. The
appellant
has
already undergone
the
sentence of 10 years as awarded by the trial
court. Since she is not able to pay the fine
of Rs. 1 lakh as aforesaid. So, in default of
the same, the appellant shall undergo for
six months' additional imprisonment as
awarded by the trial court. Therefore, the
counsel submits that liberal view may be
taken against the appellant and the
appellant be released forthwith as she has
already remained in incarceration about 10
years.

13. Learned A.G.A. opposed the
contents advanced by learned Counsel for
the appellant and submitted that all the
procedure
literally
complied
by
the
arresting officer at the time of search. He
further contended that provision of CrPC
makes it clear that the court of law can
award imprisonment in default of payment
of fine, one fourth of the term of the
imprisonment which the court is competent
to inflict as punishment for the offence
otherwise than as imprisonment in default
of payment of the fine. Thus, in this case, in
default of payment of fine, the court is
competent to award 2 years and 6 months
in
addition
to
substantive
sentence.
However, the trial court already taking
liberal view awarded six months' additional
simple imprisonment in default of payment
of fine, which could not be said to be
unlawful or otherwise illegal. Thus, the
appeal deserves to be dismissed.

14. I have considered the arguments
advanced by learned Counsel for the
appellant as well as learned A.G.A. and
perused the material placed on record.

15. Insofar as conviction recorded by
the trial court is concerned, there is no
illegality, irregularity or perversity in the
impugned order passed by the trial court.
The appellant has already undergone
substantial part of sentence of 10 years
rigorous imprisonment and in default of
payment of fine, she has already spent
more than 40 days in jail and she has
already undergone substantial period of
detention.

16. The Apex Court in Shanti Lal vs.
State of M.P. decided on 8.10.2007 was
pleased to observe paragraph No.36 and 37
as under:-

"36.
We
are
mindful
and
conscious that the present case is under the
NDPS Act Section 18 quoted above
provides penalty for certain offences in
relation to opium poppy and opium.
Minimum fine contemplated by the said
provision is rupees one lakh [fine which
shall not be less than one lakh rupees]. It is
also true that the appellant has been
ordered to undergo substantive sentence of
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
rigorous imprisonment for ten years which
is minimum. It is equally true that
maximum sentence imposable on the
appellant is twenty years. The learned
counsel for the State again is right in
submitting that clause (b) of sub-section (1)
of Section 30, CrPC authorizes the Court to
award imprisonment in default of payment
of
fine
up
to
one-fourth
term
of
imprisonment which the Court is competent
to inflict as puni0.00shment for the offence.
But considering the circumstances placed
before us on behalf of the appellantaccused that he is very poor; he is merely a
carrier; he has to maintain his family; it
was his first offence; because of his
poverty, he could not pay the heavy amount
of fine (rupees one lakh) and if he is
ordered to remain in jail even after the
period of substantive sentence is over only
because of his inability to pay fine, serious
prejudice will be caused not only to him,
but also to his family members who are
innocent. We are, therefore, of the view that
though an amount of payment of fine of
rupees one lakh which is minimum as
specified in Section 18 of the Act cannot be
reduced in view of the legislative mandate,
ends of justice would be met if we retain
that part of the direction, but order that in
default of payment of fine of rupees one
lakh, the appellant shall undergo rigorous
imprisonment for six months instead of
three years as ordered by the trial court
and confirmed by the High Court.

37. For the reasons aforesaid, the
appeal is
partly
allowed,
conviction
recorded and sentence imposed on the
appellant
to
undergo
rigorous
imprisonment for ten years is confirmed.
An order of payment of fine of rupees one
lakh is also upheld. But an order that in
default of payment of fine, the appellant
shall undergo rigorous imprisonment for
three
years
is
reduced
to
rigorous
imprisonment for six months. To that extent,
the appeal filed by the appellant is allowed.
If the appellant has undergone substantive
sentence of rigorous imprisonment for ten
years as also rigorous imprisonment for six
months as modified by us in default of
payment of fine, the appellant shall be set
at liberty forthwith unless he is required in
any other offence. If the appellant has not
completed the said period, he will be
released
after
the
period
indicated
hereinabove is over. The appeal is
accordingly disposed of."

17. Further in Alister Anthony
Pareira v. State of Maharashtra, (2012) 2
SCC 648, Hon'ble Supreme Court was
pleased to observe as under:

"One of the prime objectives of
the
criminal
law
is
imposition
of
appropriate,
adequate,
just
and
proportionate sentence commensurate with
the nature and gravity of crime and the
manner in which the crime is done. There is
no straitjacket formula for sentencing an
accused on proof of crime. The courts have
evolved
certain
principles:
the
twin
objective of the sentencing policy is
deterrence and correction. What sentence
would meet the ends of justice depends on
the facts and circumstances of each case
and the court must keep in mind the gravity
of the crime, motive for the crime, nature of
the offence and all other attendant
circumstances."

18. The Apex court has held in
various decisions that the theory of
proportionality, deterrence, seriousness and
rehabilitation should be taken into account
while exercising discretion in sentencing.

19. Also In Dhananajay Chaterjee vs
State of W.B 1994 (2) SCC 220; Apex
2 All. Anita Gajraj Vs. State of U.P.
1383
Court has been pleased to observe that
shockingly large number of criminals go
unpunished
thereby
increasingly,
encouraging the criminals and in the
ultimate
making
justice
suffer
by
weakening the system's creditability. The
imposition of appropriate punishment is the
manner in which the Court responds to the
society's cry for justice against the criminal.
Justice demands that Courts should impose
punishment befitting the crime so that the
Courts reflect public abhorrence of the
crime. The Court must not only keep in
view the rights of the criminal but also the
rights of the victim of the crime and the
society at large while considering the
imposition of appropriate punishment."

20. Similar view has also been
expressed in Ravji v. State of Rajasthan,
[1996] 2 SCC 175. It has been held in the
said case that it is the nature and gravity of
the crime but not the criminal, which are
germane for consideration of appropriate
punishment in a criminal trial. The Court
will be failing in its duty if appropriate
punishment is not awarded for a crime which
has been committed not only against the
individual victim but also against the society to
which the criminal and victim belong. The
punishment to be awarded for a crime must not
be irrelevant but it should conform to and be
consistent with the atrocity and brutality with
which the crime has been perpetrated, the
enormity of the crime warranting public
abhorrence and it should "respond to the
society's cry for justice against the criminal". If
for extremely heinous crime of murder
perpetrated in a very brutal manner without any
provocation, most deterrent punishment is not
given, the case of deterrent punishment will
lose its relevance.

21. Further in State of M.P. v. Bablu Natt,
(2009) 2 SCC 272, Hon'ble Apex Court was
pleased to held that in recent years, we have
noticed that crime against women are on the
rise. These crimes are an affront to the human
dignity of the society. Imposition of grossly
inadequate sentence and particularly against the
mandate of the legislature not only is an
injustice to the victim of the crime in particular
and the society as a whole in general but also at
times encourages a criminal. The courts have an
obligation while awarding punishment to
impose appropriate punishment so as to
respond to the society's cry for justice against
such criminals. Public abhorrence of the crime
needs a reflection through the court's verdict in
the measure of punishment. The courts must not
only keep in view the rights of the criminal but
also the rights of the victim of crime and the
society at large while considering imposition of
the appropriate punishment. The heinous crime
of committing rape on a helpless 13/14 year old
girl shakes our judicial conscience. The offence
was inhumane. There are no extenuating or
mitigating circumstances available on the
record which may justify imposition of
sentence less than the minimum prescribed by
the legislature under Section 376(1) of the Act."

22. Further, the Hon'ble Apex Court in
State of Madhya Pradesh vs Mehtab, (Cri.
appeal No. 290/2015, dated 13.02.2015) has
been pleased observe that;

"We find force in the submission. It is the
duty of the Court to award just sentence to a
convict against whom charge is proved.
While every mitigating or aggravating
circumstance may be given due weight,
mechanical reduction of sentence to the
period already undergone cannot be
appreciated. Sentence has to be fair not
only to the accused but also to the victim
and the society."

23. Further in Brajendra singh v.
State of M.P., (2012) 4 SCC 289, the
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Apex Court was pleased to held
that the law enunciated by this Court in its
recent judgments, as already noticed, adds
and elaborates the principles that were
stated in Bachan Singh [Bachan Singh v.
State of Punjab, (1980) 2 SCC 684 : 1980
SCC (Cri) 580] and thereafter, in Machhi
Singh [Machhi Singh v. State of Punjab,
(1983) 3 SCC 470:1983 SCC (Cri) 681].
The aforesaid judgments, primarily dissect
these
principles
into
two
different
compartments one being the ''aggravating
circumstances' while the other being the
''mitigating
circumstances'.
The
court
would consider the cumulative effect of
both these aspects and normally, it may not
be very appropriate for the court to decide
the most significant aspect of sentencing
policy with reference to one of the classes
under any of the following heads while
completely ignoring other classes under
other heads. To balance the two is the
primary duty of the court. It will be
appropriate for the court to come to a final
conclusion upon balancing the exercise that
would help to administer the criminal
justice system better and provide an
effective and meaningful reasoning by the
court as contemplated under Section 354(3)
CrPC.

24. In State of M.P. v. Surendra
Singh, (2015) 1 SCC 222, based on the
Theory of Proportionality, it is laid down
by Hon'ble Apex Court as under:

"That undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed. The sentencing courts are
expected to consider all relevant facts and
circumstances bearing on the question of
sentence and proceed to impose a sentence
commensurate with the gravity of the
offence. The court must not only keep in
view the rights of the victim of the crime
but also the society at large while
considering the imposition of appropriate
punishment.

Meager sentence imposed solely
on account of lapse of time without
considering the degree of the offence will
be counter productive in the long run and
against the interest of the society. One of
the prime objectives of criminal law is the
imposition of adequate, just proportionate
punishment which commensurate with
gratity, nature of crime and the manner in
which the offence is committed. One should
keep in mind the social interest and
conscience of the society while considering
the determinative factor of sentence with
gravity of crime.

The punishment should not be so
lenient that it shocks the conscience of the
society. It is, therefore, solemn duty of the
court to strike a proper balance while
awarding the sentence as awarding lesser
sentence encourages any criminal and, as a
result of the same, the society suffers.
Imposition of sentence must commensurate
with gravity of offence."

25. In view of the discussions made
above and the reasons aforesaid and laws
rendered by Hon'ble Supreme Court
referred above, the impugned judgment and
order of conviction recorded by the
Additional Sessions Judge as well as
sentence imposing rigorous imprisonment
for a period of 10 years and fine of Rs.1
lakh is confirmed. However, the order in
respect
of
six
months
rigorous
imprisonment in case of default in payment
2 All. Jagdish Prasad & Anr. Vs. State of U.P.
1385
of fine, is modified and reduced in the
manner that in case of default in payment
of fine the appellant instead of undergoing
rigorous imprisonment for a period of six
months is reduced and shall undergo
rigorous imprisonment for a period of two
months' only. The period of imprisonment
in case of default in payment of fine is
accordingly modified and reduced as
above.

26. Thus, the appeal to the above
extent is partly allowed.

27. If the appellant has undergone
substantive
sentence
of
rigorous
imprisonment for ten years as also rigorous
imprisonment for two months' as modified
by this Court above in default of payment
of fine, the appellant shall be set at liberty
forthwith unless she is required in any other
offence. If the appellant has not completed
the said period, she will be released after
the period indicated hereinabove is over.

28. Senior Registrar of this Court as
well as office is directed to communicate
this order to the court concerned, forthwith
and lower court record, if any, be returned
back to the court concerned.
----------
(2024) 2 ILRA 1385
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1876 of 2008

Jagdish Prasad & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Abhishek Ranjan

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
446
-
Appellants
challenged
orders
dated
30.06.2008
and
02.08.2008
forfeiting
their surety bonds of Rs.10,000/- each by
Additional
District
Judge/Fast
Track
Court-III, Faizabad, under Section 446
CrPC, in Criminal Misc. Case No. 7 of 2008,
arising from Sessions Trial Nos. 29/2008
(Sections 41/411/413 IPC) and 27/2008
(Section 4/25 Arms Act). Court held: (1)
Appellants, sureties for accused Ram
Ashish, made efforts to trace and ensure
his arrest after his non-appearance in
April 2008. (2) Accused was arrested on
17.07.2008 due to sureties' efforts and
discharged by trial court on 25.07.2008.
(3)
Considering
appellants'
efforts,
discharge
of
accused,
and
16-year
pendency of appeal, a lenient view was
warranted. Orders forfeiting surety bonds
set aside; appeal allowed. (Paras 9-11)

Appeal Allowed.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. List of cases has been revised and
the case is being taken up in the revised call
for hearing.

2. Heard learned counsel for the
parties.

3. This is an appeal under Section 449
Cr.P.C. against the judgment and orders
dated 30.06.2008 and 02.08.2008 passed by
learned Additional District Judge / Fast
Track Court-III, Faizabad exercising the
power under Section 446 Cr.P.C. in
Criminal Misc. Case No.7 of 2008, initiated
in Original Sessions Trial No.29/2008,
under Sections 41/411/413 I.P.C. connected
with Sessions Trial No.27 of 2008, under