RamchandrA. Vs. State of U.P. - Court Judgment

Excerpt:
[k.t. thomas and; r.p. sethi, jj.] - civil procedure code (cpc) - sections 104 - order 39, rules 1, 2, 2a, 3a, 4 and 10 - order 43, rule 1; constitution of india - article 227 - orders from which appeal lies -- when a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the defendants and obtained it, those defendants rushed to the high court to get that order quashed. appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant nos.1 to 5 from dispossessing him. documents perused. ad interim injunction till then. order 39 rule 3 to be complied with. after holding thus learned single judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously. order 43 rule 1 says that: an appeal shall lie from the following orders under the provisions of section 104 namely. an order under rule 1, rule 2, rule 2a, rule 4 or rule 10 of order 39. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. learned senior counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in rule 3 of order 39 be void. learned single judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. the aforesaid rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. second is the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing.1. heard shri devashish mitra, learned counsel for the applicant and learned aga for the state. the applicant who is facing trial for offences punishable under sections 302, 94, 411, 201 ipc in s.t. no. 260 of 2007 pending in the court of additional sessions judge, ftc no.i v, bareilly has invoked the inherent power of this court under section 482 cr.p.c. with a prayer to quash the order dated 19.7.2010 passed by additional sessions judge/ftc no4, bareilly rejecting the application moved by him before the court below under section 12 of the u.p. gangsters & antisocial activities (prevention) act (hereinafter referred to as 'gangsters act'). 2. learned counsel for the applicant submitted that since the applicant is facing trial for offences punishable under section 2/3 of u.p. gangsters acts being special case no. 195 of 2007 pending before the special judge, gangster act, bareilly, he moved an application under section 12 of the act before ftc no. 4, bareilly with a prayer that the proceedings of s.t. no. 260 of 2007 be kept in abeyance till the special case no.195 of 2007 under gangster act are concluded. 3. the court below by the impugned order rejected the aforementioned application on the ground that section 12 of the act would come into play only in a case where precedence is not being given to a trial under the gangsters act. 4. learned counsel for the application submitted that reason given in the impugned order for rejecting the application is totally untenable and vitiated by total misinterpretation of section 12 of the act which clearly provides that a trial for an offence under gangsters act by a competent court shall have precedence over the trial of another case against the accused in any other court not being a special court and shall be concluded in preference to the trial of such other case and accordingly, the trial of such other case shall remain in abeyance. he further submitted that session trial no. 26 of 2007 is not being tried by a special court and as such proceedings of the aforesaid trial were liable to be kept in abeyance till the trial of the applicant under the gangsters act pending before the special court, gangsters act, bareilly was concluded. 5. learned aga made his submissions in support of the impugned order. i have examined the submissions advanced by learned counsel for the parties and perused the impugned order as well as the other materials brought on record i am of the view that the submissions made by the learned counsel for the applicant have force and the same are liable to be accepted.6. it is undisputed that session trial no. 260 of 2007 (state v. ram chandra) in which applicant is facing trial for the offences punishable under sections 302, 394, 420, 411 ipc is not pending before a special court. there is also no dispute with regard to the fact that the applicant is also facing trial for offences punishable under section 2/3 gangster act which is pending before the special judge, gangster act, bareilly. now in order to appreciate the submissions made by learned counsel for the applicant that the proceedings of s.t. no. 260 of 2007 are liable to remain in abeyance till the special trial under gangsters act is decided, it is necessary to extract section 12 of gangster act which reads as under : " trial by special courts to have precedence :- the trial under this act of any offence by special court shall have precedence over the trial of any other case against the accused in any other court not being a special court) and shall be concluded in preference to the trial of such other case and accordingly, the trial of such other case shall remain in abeyance." 7. from a bare reading of section 12 of act it is crystal clear that the trial under gangsters act of an offence by a special court shall have precedence over trial of another case of the accused in any other court not being a special court and such trial shall be concluded in preference to the trial of such other case and trial of such other case shall remain in abeyance. the court below while passing the impugned order has failed to appreciate the provisions of section 12 of the gangsters act. 8. in this view of the matter, the impugned order dated 19.7.2010 passed by the additional sessions judge, ftc no. iv, bareilly cannot be sustained and is hereby set aside and the matter is remitted back to the sessions judge, for deciding the application moved by the applicant afresh in accordance with law by a speaking and reasoned order and keeping in mind the provisions of section 12 of the act. this necessary exercise in this regard shall be completed by the court within a period of three months from the date of production of certified copy of this order.

Judgment:
1. Heard Shri Devashish Mitra, learned counsel for the applicant and learned AGA for the State. The applicant who is facing trial for offences punishable under Sections 302, 94, 411, 201 IPC in S.T. No. 260 of 2007 pending in the Court of Additional Sessions Judge, FTC No.I V, Bareilly has invoked the inherent power of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 19.7.2010 passed by Additional Sessions Judge/FTC No4, Bareilly rejecting the application moved by him before the Court below under Section 12 of the U.P. Gangsters & Antisocial Activities (Prevention) Act (hereinafter referred to as 'Gangsters Act').

2. Learned counsel for the applicant submitted that since the applicant is facing trial for offences punishable under Section 2/3 of U.P. Gangsters Acts being Special Case No. 195 of 2007 pending before the Special Judge, Gangster Act, Bareilly, he moved an application under Section 12 of the Act before FTC No. 4, Bareilly with a prayer that the proceedings of S.T. No. 260 of 2007 be kept in abeyance till the Special Case No.195 of 2007 under Gangster Act are concluded.

3. The court below by the impugned order rejected the aforementioned application on the ground that Section 12 of the Act would come into play only in a case where precedence is not being given to a trial under the Gangsters Act.

4. Learned counsel for the application submitted that reason given in the impugned order for rejecting the application is totally untenable and vitiated by total misinterpretation of Section 12 of the Act which clearly provides that a trial for an offence under Gangsters Act by a competent court shall have precedence over the trial of another case against the accused in any other court not being a Special court and shall be concluded in preference to the trial of such other case and accordingly, the trial of such other case shall remain in abeyance. He further submitted that Session Trial No. 26 of 2007 is not being tried by a Special Court and as such proceedings of the aforesaid trial were liable to be kept in abeyance till the trial of the applicant under the Gangsters Act pending before the Special Court, Gangsters Act, Bareilly was concluded.

5. Learned AGA made his submissions in support of the impugned order. I have examined the submissions advanced by learned counsel for the parties and perused the impugned order as well as the other materials brought on record I am of the view that the submissions made by the learned counsel for the applicant have force and the same are liable to be accepted.

6. It is undisputed that Session Trial No. 260 of 2007 (State v. Ram Chandra) in which applicant is facing trial for the offences punishable under Sections 302, 394, 420, 411 IPC is not pending before a Special Court. There is also no dispute with regard to the fact that the applicant is also facing trial for offences punishable under Section 2/3 Gangster Act which is pending before the Special Judge, Gangster Act, Bareilly. Now in order to appreciate the submissions made by learned counsel for the applicant that the proceedings of S.T. No. 260 of 2007 are liable to remain in abeyance till the Special Trial under Gangsters Act is decided, it is necessary to extract Section 12 of Gangster Act which reads as under :

" Trial by Special Courts to have precedence :- The trial under this Act of any offence by Special Court shall have precedence over the trial of any other case against the accused in any other Court not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly, the trial of such other case shall remain in abeyance."

7. From a bare reading of Section 12 of Act it is crystal clear that the trial under Gangsters Act of an offence by a Special court shall have precedence over trial of another case of the accused in any other court not being a Special Court and such trial shall be concluded in preference to the trial of such other case and trial of such other case shall remain in abeyance. The Court below while passing the impugned order has failed to appreciate the provisions of Section 12 of the Gangsters Act.

8. In this view of the matter, the impugned order dated 19.7.2010 passed by the Additional Sessions Judge, FTC No. IV, Bareilly cannot be sustained and is hereby set aside and the matter is remitted back to the Sessions Judge, for deciding the application moved by the applicant afresh in accordance with law by a speaking and reasoned order and keeping in mind the provisions of Section 12 of the Act. This necessary exercise in this regard shall be completed by the Court within a period of three months from the date of production of certified copy of this order.