# Azim Qazi & Anr v. State of U.P. & Anr

- **Citation:** (2020) 7 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** Application U/S 482 No. 41494 of 2019
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azim-qazi-anr-v-state-of-u-p-anr-45338
- **Pages:** 10

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Section
40-43
read
with
Criminal
Procedure court - Section 482
-For
quashing charge sheet - Maintainability of
second application seeking same prayer, but at
different stage - liable to be rejected plea of
acquitted of co-accused - Held not material in
criminal trial held - concealment of facts by
applicants and failure to comply with earlier
direction of Court - Applicants have not come
with clean hands before the Court - Application
dismissed - Court concerned directed to ensure
presence of applicants within one month.

Application dismissed. (E-2)

List of cases cited:-

## Text

7 All. Azim Qazi & Anr. Vs. State of U.P. & Anr.
369
be said to be vitiated in law and submission
to that effect is clearly erroneous and
contrary to above discussions, hence,
rejected.

29. Application has no merit.
Dismissed accordingly.

30. Interim order, if any, stands
discharged.
----------
(2020)07ILR A369
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 41494 of 2019

Azim Qazi & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri V.M. Zaidi, Sri M.J. Akhtar

Counsel for the Opposite Parties:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Section
40-43
read
with
Criminal
Procedure court - Section 482
-For
quashing charge sheet - Maintainability of
second application seeking same prayer, but at
different stage - liable to be rejected plea of
acquitted of co-accused - Held not material in
criminal trial held - concealment of facts by
applicants and failure to comply with earlier
direction of Court - Applicants have not come
with clean hands before the Court - Application
dismissed - Court concerned directed to ensure
presence of applicants within one month.

Application dismissed. (E-2)

List of cases cited:-
1. Arasmeta Captive Power Company Pvt. Ltd.
Vs Lafarge India Pvt. Ltd. (2014) AIR-SC 525.

2. St. of A.P. Vs A.P. Jaiswal (2001) AIR SC 499.

3. Ramhit @ Hittu Vs St. of U.P. & ors. decided
on 32.2.2011 while deciding the Crl. Case No.
3951 of 2010.

4. K.K. Prem Shankar Vs Inspector Of Police &
ors., (2001) JIC (SC) 206.

5. M.S. Shariff & ors. Vs St. of Madras & ors.,
AIR (1954) (SC) 397.

6. Karan Singh Vs St. of M.P. AIR (1965)(SC)
1037.

7. Rajan Rai Vs St. of Bihar (2006)1 SCC 191.

8. Kumar Rinki Vs St. of U.P. & ors. (2008) (3)
JIC 267 Alld.

9. Yanav Sheikh @ Gagu Vs St. of W.B. (2013)
(6) SCC 428.

10. Dalvir Singh Vs St. of Haryana in Crl.
Misc.No.
M-
4096
of
2011
decided
on
09.05.2011.

11. Anil Khandelwal Vs St. of NCT of Delhi
(2019) AIR SC 3583

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri V.M. Zaidi, Senior
Counsel, assisted by Sri M.J. Akhtar,
Advocates for applicants and learned AGA
for the State, perused the records.

2. Learned Senior Counsel at the very
inception, raised certain legal aspects of the
issue
which
touches
core
issue
for
adjudication of present 482 application and
has insisted to decide the same at the
admission stage itself.

3. Before coming to the merits of the
case, the office report reveals certain
370 INDIAN LAW REPORTS ALLAHABAD SERIES
glaring misadventure committed by the
applicants. In fact this is the second 482
application, seeking same prayer, though at
different
stage.
The
applicants
have
unambiguously
flouted
directions
of
Coordinate Bench of this court with
vengeance and now they are invoking this
equitable jurisdiction under Section 482
Cr.P.C. for this second innings. This court
has got an opportunity to compare the
prayer section of both the 482 applications
i.e., Crl. Misc. Application no. 30075 of
2015 and present 482 application. The only
difference is that in earlier 482 application,
there were four applicants including the
present applicants and in the instant 482
application there are only two, out of the
four applicants.

4. The prayers sought in the present
482 application is -

5. To allow the present 482
application.

(1.) Quash the charge sheet dated
30.11.2014.

(2.) Quash the entire proceeding
of Criminal Case No. 1492 of 2015(State
Vs. Aslam Qazi and others), arising out of
case crime no. of 2013 under Sections
147,148,149,307,323,504,506
IPC
and
under Section 3(2) V of SC/ST Act Police
Station, Dibai District Bulandshahar.

6. This prayer is akin to the prayer
sought in Criminal Misc. No. 30075 of
2015 which was disposed off with regard
to present applicants vide order dated
7.10.2015 and when this order was
challenged before Hon'ble Apex Court by
means of SLP(Crl) No. 10622 of 2015,
the counsel for applicants has sought
permission to withdraw his petition and
accordingly
the
aforesaid
SLP
was
dismissed. After the dismissal of S.L.P..
The applicants are under legal obligation
to comply with the direction of this
court's order dated, dated 7.10.2015 but
instead complying the same, the daring
applicants,
as
mentioned
above,
unequivocally flouted the directions of
this court with vengeance and filed
present 482 application in succession,
though at different stages. The police has
submitted
charge
sheet
against
the
applicants way back on 30.11.2014 and
since then they are roaming scot free
throwing an open challenge to the
majesty and to the rule of law purportedly
on
the
alleged
fresh
grounds
i.e.,
informant as well as injured witnesses
have not supported the prosecution case
in a parallel prosecution and trial of coaccused of Aslam Qazi in ST No. 1670 of
2016 (State Vs. Aslam Qazi) which was
resulted into his (Aslam Qazi's) acquittal
vide judgment and order date 13.8.2019.
Thus, a primary and only plank for
assailing the entire proceeding of the case
No. 1492 of 2015 is that when the first
informant as well as the injured witnesses
of the incident have disowned the entire
case
in
their
respective
depositions/testimonies before learned
Trial Court in ST No. 1670 of 2017 and
the learned Trial Court has recorded
acquittal order of the co-accused-Aslam
Qazi, therefore the applicants are now
claiming that testimonies of the witnesses
and the judgement of acquittal and, its
benefit may also be extended to the
applicants
and
pending
proceedings
should be dropped (Para nos. 23 and 25
of the petition). In fact the "Principle of
Stare Deices" has been agitated by the
applicants to adjudicate the present case.

Facts of the case :-
7 All. Azim Qazi & Anr. Vs. State of U.P. & Anr.
371

7. Before addressing the merits of the
case, it is imperative to spell out the skelton
facts of the case which would be helpful in
adjudication of the present case.

8. The Opposite Party No. 2 lodged
an FIR on 04.07.2013 at 12:30 pm for the
incident, said to have taken place on
02.07.2013 at 5:30 pm, which was
registered as Case Crime No. 229 of 2013
under
Section
147,148,149,307,323,304,306
IPC
and
under Section 3(2) V Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act against (i) Ibrahim son of Abdul Salam
(ii) Abdul Rahim son of Abdul Salam (iii)
Aslam Qazi son of Abdullah Qazi (iv)
Azim Qazi son of Abdullah Qazi (v)
Shamim Qazi son of Abdullah Qazi with
the allegation that all the assailants armed
with lathi-danda and country made pistol
raided the premises of opposite party no. 2
and assaulted upon informant's son. In this
process, Ibrahim Qazi and Abdul Rahman
attributed the role of exhortation, whereas
rest of the accused persons have brutally
assaulted, causing injuries to Trilok Raj and
Man Singh. This incident took place on
account of alleged transaction of certain
landed property between them. Both the
injured persons were medically examined
on the same day i.e., 02.07.2013 and their
injury reports are annexed as Annexure No.
2 to the petition.

9. Since the matter relates to the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, the Circle
Officer, Dibai has conducted threadbare
investigation and submitted report under
Section 173(2) Cr.P.C. against all the accused
persons but the police submitted charge sheet
against Azim Qazi and Shamim Qazi in the
column of "absconder".

10. After submission of charge sheet,
the
learned
Magistrate
1.8.2015
took
cognizance of the offence and issued
processes against all the accused persons.

11. Instead surrendering before the
court (1) Qazi Ibrahim@ Ibrahim (2) Qazi
Abdul Rahman (3) Azim Qazi (A-1) and
Shamim Qazi (A-2) approached this court by
means of 482 application no. 30075 of 2015
whereby the coordinate bench of this court
vide order dated 07.10.2015 though protected
the interest of Qazi Ibrahim and Qazi Abdul
Rahman by issuing notices to opposite party
no. 2 but this court declined to grant any
relief to present applicants and directed that
they will have to surrender before the court
concern within three weeks from the date of
passing of this order.

12.

Instead
surrendering
and
complying with the directions of the court,
the applicants preferred a SLP (Crl) No.
10622 of 2015 but it seems that after
certain
arguments
the
counsel
for
applicants thought it proper to withdraw the
aforesaid SLP and accordingly on 4.1.2016
the
aforesaid
SLP
was
dismissed
accordingly. This is most astonishing
feature of the case that the applicants have
tried their level best to conceal this fact
from this court in their present petition. The
SLP was dismissed in the month of
January, 2016 and in all fairness the
applicants ought to have apprise this court
by annexing the orders in the present
petition filed in the year 2019 but for the
reasons best known to them the applicants
have put the cards in their sleeves with
purpose, so that, this court should not
gather adverse inference against them. This
court is of the considered opinion that the
applicants have tried their level best to
dupe and ditch this court and have not
372 INDIAN LAW REPORTS ALLAHABAD SERIES
come with clean hands in the present
petition which was filed on 30.9.2019.

13. Meanwhile the trial of arrested coaccused person- Aslam Qazi was separated
and was put to trial by means of ST No.
1670 of 2016. Contentions raised by the
Senior Counsel that since PW-1, PW-2,
PW-3, PW-4 and PW-5 have not supported
the prosecution case and as such the
aforesaid trial has ended into acquittal of
co-accused Aslam Qazi vide judgment and
order dated 13.8.2019. Since the aforesaid
judgment
was
never
challenged
and
therefore aforesaid judgment of acquittal
has attained the finality. In para no. 16 of
the petition it has been mentioned that in
view of the fact the applicants are also
entitle to get the benefit of aforesaid
statements of witnesses and the order
passed by learned Trial Court in the case of
(State Vs. Aslam Qazi) should be taken
into account to establish innocence of the
present applicants.

14. This is the long and short of the
entire case and has to be adjudged at this
stage.

15. The star legal question involved in
the present controversy is as to whether the
acquittal of the co-accused would play an
exclusive role in quashing the charge sheet
and entire proceedings with regard to
remaining co-accused persons and the entire
proceeding qua there should be quashed in
exercise of powers under Section 482
Cr.P.C.?

16. First and foremost, learned Senior
Counsel for the applicants has drawn the
attention of the court to section 40,41,42 and
43 of the Indian Evidence Act under the
heading "judgments of the court of justice
when relevant." For the sake of brevity the
text of the aforesaid provisions reads thus.

Section 40 of the Evidence Act-
Previous judgments relevant to bar a second
suit or trial-the existence of any judgment,
order or decree which by law prevents any
courts from taking cognizance of a suit or
holding a trial is a relevant fact when the
question is whether such court ought to take
cognizance of such suit, or to hold such trial.

Section 41 of the Evidence Act- A
final judgment, order or decree of a
competent Court, in the exercise of probate,
matrimonial
admiralty
or
insolvency
jurisdiction which confers upon or takes
away from any person any legal character,
or which declares any person to be entitled
to any such character, or to be entitled to
any specific thing, not as against any
specified person but absolutely is relevant
when the existence of any such legal
character or the title of any such person to
any such thing, is relevant. Such judgment
order or decree is conclusive proof - that
any legal character, which it confers
accrued at the time when such judgment,
order or decree came into operation; that
any legal character, to which it declares any
such person to be entitled, accrued to that
person at the time when such judgment
(order or decree) declares it to have
accrued to that person that any legal
character which it takes away from any such
person ceased at the time from which such
judgment (order or decree) declared that it
had ceased or should cease. (Order or
decree) declared that it had ceased or
should cease, and that anything to which it
declares any person to be so entitled was the
property of that person at the time from
which such judgment declares that it had
been or should be his property.
7 All. Azim Qazi & Anr. Vs. State of U.P. & Anr.
373

Section 42 of the Evidence Act-
Relevancy and effect of judgments, order or
decree, other than those mentioned in
Section 41.

Section 43 of the Evidence Act -
Judgments orders or decree other than
those mentioned in section 40,41 and 42
are relevant, unless the existence of such
judgment, order or decree is a fact in issue,
or is relevant under some other provisions
of the Act.

17. Besides this, the learned Counsel
for the applicants raised upon the judgment
of
the
Hon'ble
Apex
Court
in
ARASMETA
CAPTIVE
POWER
COMPANY Pvt. Ltd. Vs. LAFARGE
India Pvt. Ltd. (2014) AIR-SC 525,
whereby the Hon'ble Apex Court while
deciding the principle of Stare Deices, has
opined that the

"....consistency in the cornerstone
of
administration
and
justice,
it
is
consistency which creates confidence in the
system. This consistency can never be
achieve without respect to the rule of
finality. It is with view to achieve
consistency in the judicial pronouncement,
the courts have evolved the rule of
precedence principle of Stare Deices etc.,
and these rules and principles are based on
public also."

18. Besides this, learned Senior
Counsel for the applicants has cited
plethora of relevant cases of Hon'ble Apex
Court as well as this Court viz; The
principle of Stare Deices is a legal principle
by which the judges are obligated to respect
the precedent established by the prior
decisions. The words originated from the
phrasing of the principles in Latin; Manim
"Stare Deices at court non-quieta mobere"
to stand by the decision and not disturb the
undisturbed. In the legal context this means
the court should abide by the precedent and
not disturb the settled matters. This
principle
can
be
decided
into
two
components(1) a decision made by superior
court or by the same court in an earlier
decision is binding precedent that the court
itself and all its inferior courts must follow
(2) the court may overturn its own
precedent but should do only if the strong
reasons exists to do so and even in that case
should be guided by principle from
superior-lateral and inferior courts.

19. Similarly in the case of State of
Andhra Pradesh Vs. A.P. Jaiswal (2001)
AIR SC 499, the similar principle was
underlined by the Hon'ble Apex Court.

20. On the other hand, learned AGA
has drawn attention of the court in the
judgment of Allahabad High Court
RAMHIT @ HITTU Vs. State of U.P.
and others decided on 32.2.2011 while
deciding the Crl. Case No. 3951 of 2010
under Section 482 Cr.P.C. whereby dealing
with the identical issue the learned Single
Judge
has
explicitly
and
elaborately
considered the principle of Stare Deices
after considering number of judgment of
Hon'ble Supreme Court in this regard:-

Black's Laws Dictionary defines
Stare Deices as under;

Para 1-

Under the doctrine a deliberator
or solemn decision of court made after
argument of question of law fairly arising
in
the
case,
and
necessary
to
its
determination, is an authority, or binding
precedent in the same court or in other
courts of equal or lower rank in subsequent
374 INDIAN LAW REPORTS ALLAHABAD SERIES
cases where the very point is again in the
controversy. Doctrine is one of the policy,
grounded on theory that security and
certainly
require
that
accepted
and
established legal principle, under which
rights may accrue, be not legally sound, but
whether previous holding of court shall be
adhered to, modified, or overruled is within
court's discretion under circumstances of
case before it. When point of law has been
settled by decision, it forms precedent from,
and, while it should ordinarily be strictly
adhered to, there are occasions when
departure
is
rendered
necessary
to
vindicated plain, obvious principles of law
and remedy continued injustice. The
doctrine is not ordinarily departed from
where decision is of long-standing and
rights have been acquired under it, unless
consideration of public policy demand it.
The
doctrine
is
limited
to
actual
determination
in
respect
to
litigated
necessarily decided questions and is not
applicable to dicta or obiter dicta.

21. The Hon'ble Apex Court has got
an opportunity to analyze the applicability
of above mentioned principles of Stare
Deices in dispensing the criminal judicial
system in number of cases. The Hon'ble
Apex Court in the case of K.K. PREM
SHANKAR
Vs.
INSPECTOR
OF
POLICE AND OTHERS, (2001) JIC
(SC) 206, has considered the relevancy of
the judgment in the light of provisions of
section 41 to 43 of Indian Evidence Act
relying upon its earlier case M.S. Shariff
and others Vs. State of Madras and others,
AIR (1954) (SC) 397 and gave a conclusive
opinion as under.

"Para 26:-

What emerges from the aforesaid
discussion is-(1) the previous judgment
which is final can be relied upon as
provided under Section 40 to 43 of the
Indian Evidence Act; (2) in civil Suits
between the same parties, principle of resjudicata may apply: (3) in a criminal case
Section 300 Cr.P.C. makes provision that
once a person is convicted or acquitted he
may not be tried again for the same offence
if the conditions mentioned there in
satisfied; (4) if the criminal case and the
civil proceedings are for the same cause,
judgment of the civil court would be
relevant if conditions of any of the Section
40 to 43 are satisfied, but it cannot be said
that the same would be conclusive except
as provided in section 41. Section 41
provides
which
judgment
would
be
conclusive
proof
of
what
is
stated
therein...."

22. Similarly in yet an another case of
Karan Singh Vs. State of M.P. AIR
(1965)(SC) 1037, the Hon'ble Apex Court
considered the same question and has given
its candid opinion in para no. 6, which
reads thus :-

6. "We are therefore of opinion
that the judgment in Krishna Govind Patil's
case, AIR 1963 SC 1413 does not assist the
appellant at all. On the other hand we think
that the judgments earlier referred to on
which the High Court relied, clearly justify
the view that in spite of the acquittal of a
person in one case it is open to the Court in
another case to proceed on the basis - of
course if the evidence warrants it - that the
acquitted person was guilty of the offence
of which he had been tried in the other case
and to find in the later case that the person
tried in it was guilty of an offence under
Section 34 by virtue of having committed
the offence along with the acquitted person.
There is nothing in principle to prevent this
being done. The principle of Sambasivam's
7 All. Azim Qazi & Anr. Vs. State of U.P. & Anr.
375
case, 1950 AC 458 has no application here
because the two cases we are concerned
with are against two different persons
though for the commission of the same
offence. Furthermore, as we have already
said, each case has to be decided on the
evidence led in it and this irrespective of
any view of the same act that might have
been taken on different evidence led in
another case."

23. In the case of Rajan Rai Vs. State
of Bihar(2006)1 SCC 191, the import of
this principle in the applicability of
Criminal
Courts
has
been
explicitly
detected the aforesaid principles.

"The police after registering the
case took up the investigation and on
completion thereof has submitted charge
sheet against all the six accused persons.
On the receipt where of, cognizance was
taken against all of them and were called to
the Court of Sessions to face the trial. As
one of the accused was absconding, his
trial was separated from those of other
accused persons, out of which one died,
after commitment of the trial, as such, the
trial proceeded against remaining four
accused persons and all were convicted."
Against the said judgment they preferred
an appeal. During the course of pendency
of appeal, the other one co-accused was
apprehended, put to trial and ultimately the
Trial Court also convicted him. He also
filed an appeal before High Court. The
appeals preferred by other convicted 4
accused
persons
challenging
their
convictions were decided by the High
Court and same were allowed and their
conviction and sentences were set-aside.
The appeal filed by other co-accused
person was taken up later, the High Court
upheld it's sentence and conviction, then he
preferred SLP before Hon'ble Apex Court,
to attack the impugned judgment on three
grounds. The basic thrust of the argument
was that High Court has acquitted the
other four accused persons on merits and
therefore, it is no permissible for it to
uphold the conviction of appellants on the
basis of same witnesses examined during
the course of trial of the appellants. In
considering the case, Hon'ble Apex Court
has cited the provisions of 40, 41, 42, 43
and 44 of the Indian Evidence Act which
are under the heading of "judgments of
courts of justice when relevant" and found
that it has not been so that judgment of
acquittal rendered by High Court in
appeals arising out of earlier session trial
could be said to be relevant under the other
provisions of the Evidence Act, it was
clearly "irrelevant" and could have not
been taken into consideration by the High
Court
while
passing
the
impugned
judgment. The Hon'ble Apex Court has also
considered the other judgments rendered in
the
trial
and
ultimately
formulated
following opinions :-

".......We are clearly of the view
that the judgment of the acquittal rendered
in the trials of the four accused persons is
wholly irrelevant in the appeal arising out
of trial of the appellants Rajan Rai, as the
said judgment was not admissible under the
provisions of Section 40 to 44 of the Indian
Evidence Act." Every case has to be
considered on the evidence adduced
therein. The case of four acquitted persons
was ended on the basis of evidence led
their, while the case of present appellant
has to be decided only on the basis of
evidence adduced during course of trial..."

24. Thus, from the above golden
parameters led by Hon'ble Apex Court this
court cannot assume or presume that when
the appellants were put to trial, PW-1, PW-
376 INDIAN LAW REPORTS ALLAHABAD SERIES
2, PW-4 and PW-5 would again get hostile.
The applicants named above, charge
sheeted
accused
in
year
2014
as
absconders, who have not even surrendered
before the majesty of law, are invoking this
equitable jurisdiction time and again, with
the sole motive that though they are charge
sheeted, this court in exercise of powers
under Sections 482 Cr.P.C. taking the
testimonry/judgment of co-accused would
drop the criminal prosecution against them.
I think this is not the mandate of law, else,
it
would
be
lead
a
catastrophic
consequences over the criminal trial which
need not be explained in the henious and
serious offences. The main author of the
offence masterminds of the offences or key
conspirator would go scot free even
without surrendering before the authority of
the concerned Court and facing the trial.
Submission made by counsel that testimony
given by these prosecution witnesses(
where they turned hostile) in Aslam Qazi's
case would be taken into account, and
applicant's be acquitted without facing
trial?. Considering the decisions Division
Bench of this court in the case of Kumar
Rinki Vs. State of U.P. and others (2008)
(3) JIC 267 Alld. has concluded its opinion
on this point.

13. "The inference that is
deducible from discussion of the above
decisions that the judgment of acquittal
rendered in the trial of the other coaccused is wholly irrelevant as the said
judgment would not be admissible under
the provisions of Section 40 to 44 of the
Evidence Act. It also leaves no manner of
doubt that every case has to be decided
on the evidence adduced therein and
therefore, the case of the petitioner has to
be decided on the basis of evidence which
may be adduced during the course of
trial."

14. "The principles that are
distilled from the discussion of the above
decisions are:

(i) the acquittal of a co-accused
in a separate trial cannot be made basis
for quashing the proceedings against
another
co-accused
who
is
being
separately tried on the principle that
each case has to be decided on the
evidence adduced in that case;

(ii)
Judgment
of
acquittal
rendered in one case is not relevant in
the case of co-accused separately tried
inasmuch as Sections 40 to 44 of the
evidence Act deal with relevancy of
certain
judgments
in
probate,
matrimonial, admiralty and insolvency
jurisdiction and therefore, inapplicable to
a criminal case.

In the light of the discussions
made by this Court as well as the Hon'ble
Supreme Court on the point in issue, this
Court is of the view that the proceeding
in question does not warrant interference
by this Court in light of the decision
rendered in the earlier trial being
sessions trial no. 73/2004. Therefore, the
petition is dismissed.

25. Similarly the Hon'ble Apex Court
in the case Yanav Sheikh@ Gagu Vs. State
of West Bengal (2013) (6) SCC 428 and
Dalvir Singh Vs. State of Haryana in Crl.
Misc.No. M- 4096 of 2011 decided on
09.05.2011 has also followed and reiterated
the same principles of law.

26. In view of the above discussions,
it is amply clear that the judgment of
acquittal of co-accused Aslam Qazi, in ST
No. 1670 of 2016 decided on 13.8.2019
have no bearing in the present case in the
7 All. Azim Qazi & Anr. Vs. State of U.P. & Anr.
377
light of provisions under Section 40 to 44
of Indian Evidence Act and the ratio laid
down by Hon'ble Apex Court in this regard.
The aforesaid judgment would not render
any help or assistance to a person who is an
absconder and has flouted the directions of
the courts in its impugnity and vengeance.
It is simply strange and surprisingly that the
absconders are seeking parallel with that
co-accused (Aslam Qazi), forced the trial
and by end of the stand acquitted. The
applicants who are charge sheeted accused,
is having audacity who wants to get
acquitted without facing trial with the held
of judgment of co-accused. The judgment
in the parties cannot be justified the
invocation of doctrine of Stare Deices in
the present set of circumstances.

27. Lastly, to save the applicants from
the wrath of the court, the learned Sr.
Counsel for the applicants has cited a
recent judgment of Hon'ble Apex Court in
the case of Anil Khandelwal Vs. State of
NCT of Delhi (2019) AIR SC 3583,
whereby the Division Bench of Hon'ble
Apex Court has opined that successive 482
applications
under
the
changed
circumstances
is
maintainable
and
dismissal of earlier 482 applications has no
bar to the same.

28. This case relates to the quashing of
the proceedings u/S 142 read with section
138 N.I. Act whereby quashing of summons
issued in the complaint case was dismissed.
The subsequent 482 application was filed
with the same prayer, which was result of
second application on the ground of dismissal
of first complaint of same relief. The Hon'ble
Apex Court has permitted for filing the
second 482 application on the changed
circumstances. The Form no. 32 issued by
registrar of companies under the companies
act, 1956 shows the proof of resignation by
the Director prior to issuance of cheques. The
difference between earlier applications in as
much as statutory Form No. 32 did not fall
for consideration by the earlier court. Thus,
the second application cannot be said to a
repeated application squarely under the same
facts and circumstances.

29. I have carefully perused the
judgments of Anil Khandelwal's case and I
am afraid that aforesaid judgment would
not come to any assistance to the
applicants. In that case there was a changed
circumstance with regard to applicant
himself. But in the instant case from 2015
(1.8.2015) when the learned Magistrate has
taken cognizance of the offence, the
applicants are on run, they approach this
court and this court vide judgment dated
7.10.2015 has granted liberty to get
themselves surrender before the court
concern and seek bail. Thereafter they
approached the Hon'ble Apex Court by
means of SLP No. 10622 of 2015 which
was dismissed as withdrawn on 4.1.2016
and thus, in all fairness they ought to have
abided by the order of court while
surrendering but the stubborn applicants in
utter disregard to this court's order did not
surrender and waited for the acquittal of coaccused Aslam Qazi and now in the garb of
changed circumstances they are again
knocking the doors of this court for
challenging the charge sheet and entire
proceedings
including
non-bailablewarrants. This court is of the considered
opinion that there is no change in the
circumstance qua the applicants. There is
only change in the stage of trial and present
is second 482 application with same prayer
deserves to be rejected. The court concern
is directed to take all the possible coercive
steps to ensure the presence of applicants
within a month from the production of
certified copy of the order.
378 INDIAN LAW REPORTS ALLAHABAD SERIES

30. The office the directed to remit
the copy of this order to the court concern
within a week by a fastest mode of
services. The above 482 applicants falls flat
and accordingly dismissed
----------
(2020)07ILR A378
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 70447 of 2009

M/S Kamla Cold Storage ...Petitioner
Versus
Madhyanchal Vidhut Vittran Nigam Ltd. &
Anr. ...Respondents

Counsel for the Petitioner:
Sri B.C. Rai, Sri Deepak Kumar Pandey

Counsel for the Respondents:
Sri H.P. Dube, Sri Shivam Yadav, Sri M.K.
Yadav.

Civil Law-Electricity Act, 2003-Section 62
(6)-Petitioner claims interest over excess
amount towards the electricity charges-he
himself
demanded
supply
from
rural
feeder while he was being supplied from
the urban feeder-sudden change delayed
the
rebate
process-no
malice-rebate
cannot be equated to excessive tarrif
charged-therefore this case do not falls
u/s 62 (6) of the Electricity Act,2003.

Held, the rebate itself is a part of the tariff
order, of which percentage has been changed
from time to time and once the petitioner has
been given the due rebate, we do not think that
the petitioner is entitled for any further interest,
over and above, the amount adjusted against
the electricity dues. (Para 20)

Writ Petition dismissed. (E-9)
(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Ajit Kumar, J.)

1. Heard Sri B.C. Rai, learned counsel
for the petitioners and Sri Shivam Yadav,
learned
counsel
for
the
respondents.
Perused the record.

2. By means of this petition under
Article 226 of the Constitution of India, the
petitioner has made three prayers claiming
substantial relief in the matter, reproduced
hereunder:

"i. issue a writ order or direction
in the nature of certiorari quashing the
impugned order dated 05.09.2009 and
order dated 05.08.2009 in so far it refused
to allow electricity connection from town
feeder (Annexure Nos.6 and 5 to the writ
petition),
passed
by
the
Executive
Engineer;

ii. issue a writ order or direction
in the nature of mandamus restraining the
respondents from disconnecting electric
supply till the final adjustment of amount
found refundable to the petitioner;

iii. issue a writ order or direction
in the nature of mandamus directing the
Executive Engineer to allow interest on the
amount found refundable to the petitioner
along with rebates provided in the tariffs'
order and further to allow revision of
electricity
bill
under
Non-Continuous
Process Industry;"

3. Initially when the writ petition was
entertained this Court has been pleased to
pass the following order on 22.12.2009:

"Heard Sri B.C. Rai for the
petitioner
and
Sri
S.K.
Dubey
for
respondents.