# Purushottam Chaudhary v. C.B.I., Lucknow

- **Citation:** (2023) 3 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-27
- **Case number:** Application U/S 482. No. 1974 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/purushottam-chaudhary-v-c-b-i-lucknow-49857
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 64, 82 & 83-Trial
Court issued bailable warrant against the
Applicant presuming that despite summons
been served-Applicant did not appear-summons
not served in terms of section 64 Cr.P.C.-
summons neither served upon Applicant nor on
any male family member-at least one more
summon to be served-proclamation u/s 82 and
83 Cr.P.C.-to be issued only on the Application
of the prosecution supported with an affidavit
that despite all reasonable efforts accused is
avoiding summon-impugned order set aside.

Application allowed. (E-9)

List of Cases cited:

## Text

466 INDIAN LAW REPORTS ALLAHABAD SERIES
and if in compliance of the order of the
Apex Court, any guidelines have been
formulated and circulated
and being
followed in the entire State, deviation
thereof would be a disobedience of the
order of the Apex Court and would
frustrate the purpose of formulating the
guidelines issued by the High Court at
Allahabad to deal with and to adjudicate
the issue relating to the MPs/MLAs.
Therefore, the provisions of Section 465 (2)
Cr.P.C. would not be applicable, which
provides that if specific objection has not
been taken by the either side at the
appropriate stage and order is passed by the
court not having jurisdiction may not be set
aside. In the present cases, the District/
Sessions Judge was duty bound to transfer
the case to the designated court dealing
with the issues relating to the MP/MLA.
Likewise, if the court where the matter has
been transferred by the District/ Sessions
Judge concerned is having no locus or
jurisdiction to deal with or to adjudicate the
issue relating to the MP/MLA should have
not proceeded further. Notably, the Court
concerned has considered the fact in para
35 of the impugned order that one of the
parties has been MLA and getting pension
admissible for the MLA. In the present
case, the order impugned has been passed
by the court, which is not having
jurisdiction to pass such order, therefore,
the aforesaid order may not sustain in the
eyes of law. At the same time, it is also
observed that there is no fault on the part of
the respondents inasmuch as they have
participated in the proceedings and they did
not try to linger on the issue.

9. Considering the submissions of
learned counsel for the parties and perusing
the material available on record, I find that
there is an error apparent on the face of the
order dated 23.12.2022 as the same has
been passed by the court, which was not
having jurisdiction to pass such order in the
light of the dictum of the Apex Court in re;
Ashwini Kumar Upadhyay (supra) and
the subsequent guidelines so issued by the
High Court at Allahabad.

10. Therefore, the instant application
for leave to appeal is allowed.

11. The impugned order dated
23.12.2022 passed by the Special Judge
(Gangster Act)/ Special Judge (POCSO
Act),
Balrampur
in
Criminal
Misc.
Reference Case No.984 of 2022 is hereby
set aside/ quashed only on the ground of
jurisdictional error as I have not entered
into the merit of the issue. The matter is
remanded back to the designated court
concerned at Balrampur to adjudicate the
issue on merits promptly, strictly in
accordance
with
law,
by
affording
opportunity of hearing to the parties
concerned, with expedition, preferably,
within a period of three months from the
date of production of certified copy of this
order.

12. Accordingly, the appeal is also
allowed.
----------
(2023) 3 ILRA 466
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482. No. 1974 of 2023

Purushottam Chaudhary ...Applicant
Versus
C.B.I., Lucknow ...Opposite Party

Counsel for the Applicant:
3 All. Purushottam Chaudhary Vs. C.B.I., Lucknow
467
Pranshu Agrawal

Counsel for the Opposite Party:
Anurag Kumar Singh

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 64, 82 & 83-Trial
Court issued bailable warrant against the
Applicant presuming that despite summons
been served-Applicant did not appear-summons
not served in terms of section 64 Cr.P.C.-
summons neither served upon Applicant nor on
any male family member-at least one more
summon to be served-proclamation u/s 82 and
83 Cr.P.C.-to be issued only on the Application
of the prosecution supported with an affidavit
that despite all reasonable efforts accused is
avoiding summon-impugned order set aside.

Application allowed. (E-9)

List of Cases cited:

1. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal & ors. ,2007 AIR SCW 6679

2. Vinod Kumar Singh @ Vinod Singh Vs St. of
U.P., Application U/s 482/378/407 No. 5195 of
2021
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri P. Chakravarty and Sri
Pranshu Agarwal, learned counsel for the
applicant and Sri Anurag Kumar Singh,
learned counsel for the C.B.I.

2. By means of this application the
applicant has prayed for quashing of the
impugned order dated 24.1.2023 by means
of which Non-Bailable Warrant was
ordered to be issued and also for quashing
the order dated 08.02.2023 by means of
which Non-Bailable Warrant as well as the
process u/s 82 Cr.P.C. was ordered to be
issued by the Court of Special Judge, CBI,
Court No. 2, Lucknow in Criminal Case
No. 01/2023, C.B.I. vs. Bhagwati Prasad
Verma and others, arising out of R.C. No.
8(A)/2014, u/s 120B/409, 420, 511 IPC and
section 13(2) r/w 13(1)(d) of the Prevention
of Corruption Act, 1988, P.S. CBI / ACB,
Lucknow.

3. At the very outset learned counsel
for the applicant has drawn attention of this
Court towards the order dated 10.1.2023
whereby the learned trial court has issued
bailable warrant against the applicant
presuming that despite the summons having
been served upon him he did not appear.
Learned counsel for the applicant has
submitted that summon has not been served
on the petitioner in terms of section 64
Cr.P.C. which provides that if the person
whose presence is required in the Court is
not present in the house such summon
should be served upon any male member of
the family but the same has been served
upon one female member of the family. If it
is presumed for the argument sake that such
summon has been served on the family
member (Bhabhi) of the applicant and the
petitioner did not appear on that summon
the learned trial court may issue summons
against him but on the basis of presumption
that same has been served on the applicant
through his relative the bailable warrant
should not have been issued against him as
this exercise is in derogation of section 64
Cr.P.C.

4. Further, attention has been drawn
towards the next date fixed i.e. 24.1.2023.
On that date a straightaway Non-Bailable
Warrant has been issued without verifying
the fact as to whether the applicant has
been informed about the date fixed i.e.
24.1.2023 and about the bailable warrant
being issued against him on 10.1.2023. Sri
Chakravarty has further drawn attention of
this Court towards the third order dated
8.2.2023 whereby the learned trial court
468 INDIAN LAW REPORTS ALLAHABAD SERIES
straightaway
issued
N.B.W.
and
proclamation of section 82 Cr.P.C. again
without verifying the fact as to whether the
applicant is aware about the N.B.W. being
issued on 24.1.2023.

5. Sri Chakravarty has placed reliance
of the dictum of Apex Court in re: Inder
Mohan Goswami and Anr. vs. State of
Uttaranchal and Ors., 2007 AIR SCW
6679 whereby the Hon'ble Apex Court has
deprecated such exercise being adopted by
the learned trial court. The Hon'ble Apex
Court in re: Inder Mohan Goswami
(supra) has observed that if the appearance
of any person / accused person is required
before the court concerned, he should have
been first issued summons and the court
should remain careful on the aspect that if
the person concerned has not appeared
before the court concerned on the summons
when such summons have not been served
upon him, however, upon his family
member, again summons should have been
issued and if the learned trial court is
convinced that despite the service of the
summons upon the person concerned he is
deliberately trying to avoid the process of
law, bailable warrant may be issued but
before issuing N.B.W. against such person
the Court should remain very careful
inasmuch as issuing N.B.W. against any
accused
person
directly
affects
his
fundamental right to life and liberty. The
Apex Court in Inder Mohan Goswami
(supra) has issued guidelines to the effect
that under what circumstances the strict
process should be issued as under :

"....Personal
liberty
and
the
interest of the State Civilized countries
have recognized that liberty is the most
precious of all the human Personal liberty
and the interest of the e State Civilized
countries nights The American Declaration
of Independence 1776, French Declaration
of the Rights of Men and the Citizen 1789,
Universal Declaration of Human Rights
and the International Covenant of Civil and
Political Rights 1966 all speak with one
voice -
liberty is
the natural and
inalienable right of every human being
Similarly, Article 21 of our Constitution
proclaims that no one shall be deprived of
his liberty except in accordance with the
procedure prescribed by law...

The issuance of non-bailable
warrants
involves
interference
with
personal liberty. Arrest and imprisonment
means deprivation of the most precious
right of an individual. Therefore, the courts
have to be extremely careful before issuing
non-bailable warrants.

The warrants either bailable or
non-bailable should never be issued
without proper scrutiny of facts and
complete application of mind, due to the
extremely
serious
consequences
and
ramifications which ensue on issuance of
warrants...."

 [Emphasis Supplied]

6. Sri Chakravarty has submitted that
if the facts and circumstances of the present
case are tested on the touchstone of the
guidelines of the Hon'ble Apex Court in re:
Inder Mohan Goswami (supra) the
impugned orders whereby the Non-Bailable
Warrant and proclamation u/s 82 Cr.P.c.
has been issued, those orders would be
liable to be set aside. Sri Chakravarty has
also placed reliance on the judgment and
order dated 10.12.2021 passed in Case :-
U/s 482/378/407 No. 5195 of 2021 (Vinod
Kumar Singh @ Vinod Singh vs. State of
U.P.) whereby this Court placing reliance
of the order of co-ordinate Bench of this
Court has directed that before issuing
proclamation u/s 82 Cr.P.C. there must be
an application supported with an affidavit
3 All. Purushottam Chaudhary Vs. C.B.I., Lucknow
469
of the prosecution to show and convince
the learned court below that despite all
possible efforts being taken by the
prosecution serving summons, bailable
warrants and non-bailable warrants upon
him or her such person is not appearing
before the Court concerned, therefore, the
proclamation u/s 82 Cr.P.C. may be issued
and the learned trial court after being
satisfied on the contents of such application
which is supported by an affidavit may
issue proclamation u/s 82 Cr.P.C. but such
proclamation may not be issued in a
cursory manner infringing the fundamental
right of any person enshrined under Article
21 of the Constitution of India.

7. Therefore, Sri Chakravarty has
stated that the impugned orders dated
10.1.2023, 24.1.2023 and 8.2.2023 are
patently illegal and unwarranted, the same
may be set aside. The applicant undertakes
that he shall appear before the learned trial
court concerned on the next date fixed i.e.
13.3.2023 and shall participate in the
proceedings. Sri Chakravarty has also
apprised the Court that since the marriage
of the daughter of the applicant was fixed
on 25.1.2023, therefore, he could not
appear before the learned trial court
concerned on 10.1.2023 and 24.1.2023 and
this fact has been apprised by the family
members of the applicant to the Process
Server as such report has been enclosed
with the petition as Annexure no. 5.
However, in such report the subsequent
part thereof which indicates that the
applicant has given undertaking that he
shall appear on the date fixed before the
court is not correct rather the applicant has
not given any undertaking to the Process
Server through his family member that he
shall be appearing before the court
concerned on 10.1.2023. In any case he
shall be appearing on the next date and
shall
participate
in
the
proceedings
properly.

8. Sri Anurag Kumar Singh, learned
counsel for the C.B.I. has tried to defend
the impugned orders dated 10.1.2023,
24.1.2023 and 8.2.2023 by submitting that
when the Process Server approached the
family members of the present applicant on
8.1.2023 and apprised that the next date has
been fixed as 10.1.2023, such process has
been served upon the sister-in-law (Bhabhi
of the present applicant) and the Process
Server talked with the applicant, who
assured that he shall appear on the next
date fixed, therefore, avoiding the process
of law despite knowing the fact that next
date is fixed before the trial court is already
uncalled for, for the applicant itself,
therefore, the learned trial court has rightly
issued bailable warrant on 10.1.2023,
however, on being further confronted as to
whether the present applicant was informed
about the bailable warrant being issued
against him on 10.1.2023 fixing next date
for 24.1.2023, Sri Singh has stated that he
has no specific instructions on that point.

9. On being confronted as to whether
the summon has been served in the light of
section 64 Cr.P.C., Sri Singh has fairly
stated that such summon has not been
served on any male family member of the
applicant. On being further confronted as to
whether the present applicant was informed
the dates fixed in the court and the
subsequent date 8.2.2023 has been fixed
and on 24.1.2023 N.B.W. has been issued
against him, Sri Singh has again stated that
he has no specific instructions to the effect
that as to whether the earlier date and
orders have been intimated to the applicant
or not. Lastly, Sri Singh has been asked as
to whether any application supported by an
affidavit has been filed before the learned
470 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court seeking proclamation against the
applicant u/s 82 Cr.P.C., Sri Singh has
stated that on that point too he has no
specific instructions.

10. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that if the appearance of any person
/ accused person is required before the
learned trial court firstly summons should
have been issued and if the person
concerned does not appear before the court
concerned on the date fixed the court
concerned should first verify as to whether
such summon has been served upon the
applicant or not and if such summon has
not been served on him personally at least
one more summon should have been issued
to him and on the next date this fact must
be verified as to whether such summon has
been served o the person concerned or not
and if the court is convinced that despite
the summons being served upon the person
concerned he is avoiding the process of
law, the bailable warrant can be issued but
at the stage of non-bailable warrant the
court
should
take
proper
care
and
precaution convincing itself that despite the
service of bailable warrant on couple of
dates the process of law is being avoided
only in that extreme circumstance the NonBailable Warrant should be issued as such
process of law directly relates with the
liberty of a person which is guaranteed
under Article 21 of the Constitution of
India. In other words before issuing
N.B.W. due care and precaution is
warranted for the learned trial court and
N.B.W. should not be issued in a cursory
manner. Further, if the learned trial court is
willing to issue proclamation u/s 82 and 83
Cr.P.C. against such accused persons, the
degree of carefulness and precaution would
be increased and such orders relating to the
proclamation may be issued only on the
application of the prosecution supported
with an affidavit that despite all reasonable
efforts being taken against the accused
person to serve upon the summon the
bailable warrant and N.B.W. he / she is
avoiding the process, the court by assigning
specific and cogent reasons to the effect
that now there is no other way out except to
initiate proceedings u/s 82 Cr.P.C. and 83
Cr.P.C. such proclamation can be issued
but that proclamation cannot be issued in a
cursory manner in view of the dictum of
Apex Court in re: Inder Mohan Goswami
(supra).

In the present case the summon
has not been served upon the applicant in
terms of section 64 Cr.P.C. which provides
that if the person whose presence is
required in the Court is not present in the
house such summon should be served upon
any male member of the family but the
same has been served upon one female
member of the family.

11. If the facts and circumstances of
the present case are tested on the
touchstone of dictum of Apex Court in re:
Inder Mohan Goswami (supra) I find that
the impugned order dated 10.1.2023,
24.1.2023 and 8.2.2023 suffers from
illegality, therefore, those orders are liable
to be set aside.

12. Accordingly, the order dated
10.1.2023, 24.1.2023 and 8.2.2023 are
hereby set aside.

13. Since the next date has been fixed
on
13.3.2023,
therefore,
the
present
petitioner is directed to appear before the
learned court concerned on 13.3.2023 to
face the further proceedings and the learned
trial court may proceed further strictly in
3 All. Parvez Parwaz & Anr. Vs. State of U.P. & Anr.
471
accordance with law ignoring the impugned
orders dated 10.1.2023, 24.1.2023 and
8.2.2023. However, it is made clear that if
the petitioner does not appear before the
learned trial court on 13.3.2023, the benefit
of this order shall not be available to him
and the learned trial court may take any
appropriate step against him which is
permissible under the law.

14. It is made clear that the petitioner
may take other appropriate remedy before
the appropriate court of law for that no
liberty is required.

15. In view of aforesaid terms, the
petition is allowed.
----------
(2023) 3 ILRA 471
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application U/S 482. No. 4227 of 2023

Parvez Parwaz & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Manauvar Husain, Ms. Fatma Anjum,
S.F.A. Naqvi (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973-Section 482-Inherent powers of High
Court-Not to be exercised to reopen issues
already decided by Supreme Court-Principle of
res judicata applicable to criminal proceedings.
Criminal
Law
-
Code
of
Criminal
Procedure-
Section
196-Sanction
for
prosecution under Section 196 Cr.P.C.-Once
sanction refused and issue attains finality up to
Supreme Court, trial court cannot reopen and
decide
the
issue
again
in
subsequent
proceedings-Investigation under Section 156(3)
Cr.P.C.-Not permissible against a public servant
once sanctioned for prosecution has been
refused.

Application dismissed. (E-9)

List of Cases cited:

1. Bhagat Ram Vs St. of Raj., 1972 (2) SCC 466

2. Anil Kumar & ors. Vs M.K. Aiyappa & anr.,
(2013) 10 SCC 705

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present petition under Section
482 CrPC has been filed, impugning the
order dated 11.10.2022 passed by the
Additional District & Sessions Judge (Rape
and POCSO)-3, Gorakhpur in Final Report
No.1230 of 2017 (Parvez Parwaz Vs. Yogi
Adityanath and others), arising out of Case
Crime No.2776 of 2008, under Sections
153, 153-A, 153-B, 295, 295-B, 147, 148,
395, 436, 435, 302, 427 and 452 IPC read
with Section 7 Criminal Law Amendment
lodged at Police Station Cantt., District
Gorakhpur.

2. The learned trial Court has rejected
the protest petition filed by the petitioner
by holding that as the sanction for
prosecuting the accused was already
refused under Section 196 CrPC and the
said
order
was
challenged
by
the
petitioner/complainant up-to the Supreme
Court
and
the
Supreme
Court
had
dismissed the appeal, therefore, the protest
petition could not be accepted and the trial
Court could not interfere with the order,
refusing the sanction for prosecution of the
alleged accused. There is a checkered