# Sarvesh Kumar Tiwari v. State of U.P - **Citation:** (2021) 11 ILRA 315 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-11-18 - **Case number:** Application U/S 482/378/407 No. 4612 of 2021 - **Bench:** Mrs. Sangeeta Chandra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarvesh-kumar-tiwari-v-state-of-u-p-46527 - **Pages:** 4 ## Headnote Law - Code of Criminal Procedure, 1973-Section 482 - quashing ofnon-bailable warrant-petitioner earlier challenged the chargesheet in which he got the stay of proceedings-during the pendency of the petition, trial court issued nonbailable warrants-accused were directed to place the current status regarding the stay order granted by the High Court-from the perusal of ordersheet, trial court had given repeated opportunities to the accused but the accused remained absent-A last opportunity was also given which was not availed-learned trial court had no means to ensure presence of the accused before itHence, the trial court committed no factual and legal infirmity while passing order. (Para 1 to 20) The application is rejected. (E-6) List of Cases cited: ## Text 11 All. Sarvesh Kumar Tiwari Vs. State of U.P. 315 court of Magistrate through counsel and the discharge application through counsel shall be decided in terms of earlier order dated 1.11.2019. 21. Accordingly, the petition is allowed. 22. No order as to costs. ---------- (2021)12ILR A315 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 18.11.2021 BEFORE THE HON'BLE MRS. SANGEETA CHANDRA, J. Application U/S 482/378/407 No. 4612 of 2021 Sarvesh Kumar Tiwari ...Applicant Versus State of U.P. ...Opposite Party Counsel for the Applicant: Dinesh Kumar Singh (D.K.S, Umesh Singh Counsel for the Opposite Party: G.A. A. Criminal Law - Code of Criminal Procedure, 1973-Section 482 - quashing ofnon-bailable warrant-petitioner earlier challenged the chargesheet in which he got the stay of proceedings-during the pendency of the petition, trial court issued nonbailable warrants-accused were directed to place the current status regarding the stay order granted by the High Court-from the perusal of ordersheet, trial court had given repeated opportunities to the accused but the accused remained absent-A last opportunity was also given which was not availed-learned trial court had no means to ensure presence of the accused before itHence, the trial court committed no factual and legal infirmity while passing order. (Para 1 to 20) The application is rejected. (E-6) List of Cases cited: 1. Inder Mohan Goswami & anr Vs St. of Uttranchal & ors. (2007) 12 SCC 1 2. Asian Resurfacing of Road Agency Pvt. Ltd. & anr. Vs C.B.I .(2018) 16 SCC 299 3. Fazalullah Khan Vs M. Akbar Contranctor (d) by LRs & ors. (2019) 8 ADJ 615 SC (Delivered by Hon'ble Mrs. Sangeeta Chandra, J.) 1. Heard learned counsel for the petitioner and learned AGA for the State. 2. This petition has been filed with the following main prayer:- "Wherefore, it is most respectfully prayed that this hon'ble Court may kindly be pleased to set-aside the impugned order dated 16.09.2021 and 28.10.2021 passed by IIIrd Additional District and Sessions Judge, Ambedkar Nagar in S.T. No. 186/2011 (State Versus Sarvesh Kumar Tiware), with all consequential benefits contained as Annexure No.1 and 2 respectively to the present petition." 3. It has been submitted by learned counsel for the petitioner that earlier a Criminal Misc. Case No. 15 of 2016 under Section 482 Cr.P.C. (Sarvesh Kumar Tiware vs. State of U.P. and Others) was filed by the petitioner challenging the charge sheet in which this Court had been pleased to stay the proceedings in the Sessions Trial no. 186 of 2011 (State Vs. Sarvesh Kumar Tiware) by its order dated 17.08.2021, which is still operative and inforce. During the pendency of the petition and the interim order therein, the trial court had issued non-bailable warrants against the petitioner on 16.09.2021 giving rise to afresh cause of action to file the present petition under Section 482 Cr.P.C. 4. Learned AGA for the State has raised the preliminary objection regarding the 316 INDIAN LAW REPORTS ALLAHABAD SERIES maintainability of the petition as according to him the petitioner's case no. 5131 of 2016 is still pending before this Court and a second petition by the same petitioner with regard to the same Sessions Trial only challenging the non-bailable warrant issued by the learned trial court is not maintainable. 5. Learned counsel for the petitioner has pointed out the order sheet annexed as annexure09 to the petition and he says that he has never been issued any summon, warrant earlier and a wrong observation has been made by the learned trial court in its order dated 16.09.2021 that he has been granted several opportunities to place a current status of the petition under Section 482 of the Cr.P.C., bearing Petition No. 5131 of 2016. 6. The counsel for the petitioner has stated that the non-bailable warrant has been issued against the petitioner without application of mind to the observations made by the Hon'ble Supreme Court in the "Inder Mohan Goswami and Another vs. State of Uttranchal and Others (2007) 12 SCC 1", where the Court had observed in paragraph nos. 50 to 53 that non-bailable warrants would be issued to bring a person to Court only when summons and bailable warrants would be unlikely to have the desired result. If the Court is of the opinion that the summons will suffice in getting the appearance of the accused in the Court, the summons or bailable warrants should be preferred. 7. This Court has carefully perused the order sheet a typed copy of which has been filed at annexure-09 to the petition. It appears that on 24.01.2020 when the case was called out, the accused were directed to place the current status regarding the stay order granted by the High Court by the next fixed. The matter was fixed to be taken on 25.02.2020. 8. On 25.02.2020, again, the accused were directed to place a current status regarding the stay order granted by the High Court and the matter was fixed for 25.03.2020. The case was again taken up on 25.03.2020 where noting the absence of the accused, the court had ordered the accused to present the status of stay in the proceedings before the High Court by the next date of listing as a last opportunity. The case was fixed on 03.08.2021, when again the accused remain absent and the learned trial court observed that because of the petition remaining pending in the High Court, the proceedings had remained stayed and the accused was directed to place the current status of the stay order granted earlier by the next date. The matter was fixed again for hearing on 20.08.2021. On 20.08.2021, there was a public holiday declared due to Moharam. The case was taken up on 21.08.2021, when accused remained absent. Again the Court directed the accused to place the current status to of the proceedings by the next date. The matter was fixed for 08.09.2021. On 08.09.2021, again, the accused remained absent. The Court had again given time to the accused to place the current status with regard to the pendency of proceedings before the High Court and the stay order and fixed the matter for 16.09.2021. It was on 16.09.2021 that the learned trial court has passed the order impugned, observing that repeated opportunities were being given to the accused which were not availed by him. 9. In the case of "Inder Mohan Goswami and Another vs. State of Uttranchal and Others (2007) 12 SCC 1", the Hon'ble Supreme Court had observed in paragraph nos. 53 and 54 that non-bailable warrants would be issued to bring a person to Court only when summons and bailable warrants would be unlikely to have the desired result. This could be even when the court thought it reasonable that the accused will not voluntarily appear in court or the police authorities are unable to find the person to serve him with a summon or it is considered that the person could harm someone if not placed into custody immediately. 11 All. Sarvesh Kumar Tiwari Vs. State of U.P. 317 10. This Court having perused the pleadings on record, is of the considered opinion that the petitioner had approached this Court earlier in the petition No. 5131 of 2016 under Section 482 of the Cr.P.C. challenging the charge sheet, where this Court had passed the following order on 17.08.2016, which is quoted herein below:- "Heard. Issue notice to the opposite parties, returnable on 4.10.2016. Notice to indicate that the petition may be decided finally at the admission stage itself. The learned Additional Government Advocate waives service of notice on behalf of the opposite party no.1. Stand over to 4.10.2016. In the meantime, further proceedings against the petitioner shall be stayed. " 11. It appears that the petitioner failed to appear before the learned trial court despite observations made by the Hon'ble Supreme Court in the Case of "Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation, 2018 (16) SCC 299" where the Hon'ble Supreme Court had observed in paragraph 34, which is quoted herein below:- "If stay is granted, matter should be taken on day-to-day basis and concluded within two-three months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial court." 12. The Court had further observed as under:- "In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account If stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this,situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced." 13. Learned trial court on the basis of the observations made by the Hon'ble Supreme Court in case of Asian Resurfacing of Road Agency Private Limited (Supra) had initially passed an order on 30.03.2017 noting that the accused was not appearing in the case, and there was no application by his counsel for exempting his personal appearance, the trial court has thereafter given several chances for the petitioner to indicate to the Court the current status of his petition No. 5131 of 2016 under Section 482 Cr.P.C. regarding which the dates have been mentioned by the learned trial court in its order dated 16.09.2021. Having observed the fact that the accused was not appearing despite the several chances being given and even the last opportunity to communicate the current status of 318 INDIAN LAW REPORTS ALLAHABAD SERIES his petition being given to him. The Court has referred to the observations made by the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited (Supra) and issued non-bailable warrant against him directing the matter to be placed before it thereafter. 14. It has been argued by the learned counsel for the petitioner that on 28.10.2021, the petitioner had filed an application paper no. 11(b) through his counsel saying that in the case of Fazalullah Khan vs. M. Akbar Contractor (d) By LRs and Others 2019 (8) ADJ 615 (SC), the Hon'ble Supreme Court had observed that where the case remained pending in the High Court the Stay would not stand automatically vacated. However, the learned trial court rejected the application by misreading the observations made by the Hon'ble Supreme Court in the case of Fazalullah Khan (Supra). 15. This Court has gone through the order dated 28.10.2021 and also the judgement rendered by the Hon'ble Supreme Court in the case of Fazalullah Khan (Supra). In the case of Fazalullah Khan (Supra), the Court had observed that where an appeal remains pending before the higher Court and there was a stay granted by the higher Court of the impugned order, such stay would not stand automatically vacated in terms of the law laid down in the case of Asian Resurfacing of Road Agency Private Limited (Supra). 16. Admittedly, the petitioner has not appealed against any order of the lower court, and the lower court order has not been stayed during pendency of the appeal. The petitioner had challenged the charge sheet before this Court in petition no. 5131 of 2016 and the Court had granted a stay order as quoted herein above. Such an order would certainly come within the purview of the observations made by the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited (Supra). 17. As far as possible, if the Court is of the opinion that the summon will suffice in securing the appearance of the accused in the Court, the summons or the bailable warrants should be preferred. 18. But, it is apparent from the order sheet of learned trial court that repeated opportunities were given to the accused but the accused remained absent. A last opportunity was also given to the accused which was not availed. Learned trial court had no means to ensure presence of the accused before it. Hence the order was passed which has been challenged in this petition. 19. This Court, therefore, finds no factual and legal infirmity and no good ground to show interference either in the other dated 16.09.2021 or in the order dated 28.10.2021. 20. Accordingly, the petition is rejected as misconceived. ---------- (2021)12ILR A318 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 02.12.2021 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN, J. Application U/S 482/378/407 No. 4807 of 2021 Neeraj Singh & Anr. ...Applicants Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicants: Vinod Kumar Pandey Counsel for the Opposite Parties: G.A., S.K. Yadav Warsi