Mst. Aqeela and Another Vs. State of U.P.
EmailAppeal: Criminal Appeals Nos. 738-741 of 1995
Petitioner: Mst. Aqeela and Another
Respondent: State of U.P.
Apeal: Criminal Appeals Nos. 738-741 of 1995
Judges: M.M. PUNCHHI , S.P. KURDUKAR & V.N. KHARE , JJ.
Date of Judgment: Feb 09, 1997
Head Note:
CONSTITUTION
Article 136 – Conviction by Add. Sessions Judge for offences under Section 304 Part . II and 324 IPC – Appeals by State and convicts – Also revision by complainant through an advocate , who later became Judge of High Court – Appeals and revision disposed by a Division Bench with same advocate being junior member of Bench – Held tat this had occasioned failure of justice . Orders of High Court set-aside and matter remanded back with directions to give priority . ( Paras 2 & 3 )
Article 136 – Conviction by Add. Sessions Judge for offences under Section 304 Part . II and 324 IPC – Appeals by State and convicts – Also revision by complainant through an advocate , who later became Judge of High Court – Appeals and revision disposed by a Division Bench with same advocate being junior member of Bench – Held tat this had occasioned failure of justice . Orders of High Court set-aside and matter remanded back with directions to give priority . ( Paras 2 & 3 )
JUDGEMENT:
ORDER
1 . In Criminal Sessions Trial No. 723 of 1978 , the First Addi-tional Sessions Judge , Moradabad , convicted the appellants for offences under Section 304 Part II IPC and Section 324 IPC read with Section 34 IPC and awarded a measure of sentence to the appellants . The Government appealed against the said verdict . So did the convicted accused . Thus , Criminal Appeal No. 199 of 1980 at the instance of the Government and Criminal Appeals Nos. 2952 and 2953 of 1979 at the instance of the accused were pre-ferred in the Allahabad High Court . It transpires that Criminal Revision No. 1917 of 1979 was also preferred by the complainant against the same verdict of the Court of Session through a coun-sel who later became a Judge of the High Court . The aforesaid three criminal appeals were disposed of , about fifteen years later , on 5-8-1994 by a Division Bench judgment of the High Court authored by the same Hon’ble Judge aforementioned as a Junior member of the Bench , whereby the appeal of the State was allowed and the appeals of the accused-appellants were dismissed with the result that the offence under Section 304 Part II IPC was altered to be one under Sections 302/34 IPC . Since Criminal Revision No. 1917 of 1979 preferred by the complainant had not been disposed of simultaneously , it was taken up by the same Bench twelve days later on 17-08-1994 on which orders were passed that the judgment passed on 5-8-1994 in Government Appeal No. 199 of 1980 shall govern the petition which was ordered to be disposed of accord-ingly . A statutory appeal has been preferred in this Court by the convicted accused and they have brought into focus the factum of the filing of the revision petition by the named advocate turned Judge who sat to decide the appeal with a result disadvan-tageous to the accused-appellants and favourable to the complain-ant .
2 . Without meaning to dwell on this aspect of the matter any further , the barest minimum what we say is that there has occa-sioned a failure of justice . That factor alone is enough for us to allow these appeals , which we hereby do , setting aside the impugned judgment and order of the High Court and remit the matters back to it for fresh decision of the aforesaid three appeals on revival in accordance with law and on granting a fresh hearing . Sequelly , the orders passed in Criminal Revision No. 1979 are also set aside and the matter is put back as a tagged matter with the appeals now put before the High Court .
3 . We notice that Aqeela Begum , one of the appellants , was granted bail by this Court . We order that she shall continue to be on bail while her appeal remains pending in the High Court . Other accused have also the liberty to apply to the High Court for grant of bail which if applied for , shall be dealt with on its own merit . Since the Matters are very old , let them rank top priority in disposal by the High Court .
1 . In Criminal Sessions Trial No. 723 of 1978 , the First Addi-tional Sessions Judge , Moradabad , convicted the appellants for offences under Section 304 Part II IPC and Section 324 IPC read with Section 34 IPC and awarded a measure of sentence to the appellants . The Government appealed against the said verdict . So did the convicted accused . Thus , Criminal Appeal No. 199 of 1980 at the instance of the Government and Criminal Appeals Nos. 2952 and 2953 of 1979 at the instance of the accused were pre-ferred in the Allahabad High Court . It transpires that Criminal Revision No. 1917 of 1979 was also preferred by the complainant against the same verdict of the Court of Session through a coun-sel who later became a Judge of the High Court . The aforesaid three criminal appeals were disposed of , about fifteen years later , on 5-8-1994 by a Division Bench judgment of the High Court authored by the same Hon’ble Judge aforementioned as a Junior member of the Bench , whereby the appeal of the State was allowed and the appeals of the accused-appellants were dismissed with the result that the offence under Section 304 Part II IPC was altered to be one under Sections 302/34 IPC . Since Criminal Revision No. 1917 of 1979 preferred by the complainant had not been disposed of simultaneously , it was taken up by the same Bench twelve days later on 17-08-1994 on which orders were passed that the judgment passed on 5-8-1994 in Government Appeal No. 199 of 1980 shall govern the petition which was ordered to be disposed of accord-ingly . A statutory appeal has been preferred in this Court by the convicted accused and they have brought into focus the factum of the filing of the revision petition by the named advocate turned Judge who sat to decide the appeal with a result disadvan-tageous to the accused-appellants and favourable to the complain-ant .
2 . Without meaning to dwell on this aspect of the matter any further , the barest minimum what we say is that there has occa-sioned a failure of justice . That factor alone is enough for us to allow these appeals , which we hereby do , setting aside the impugned judgment and order of the High Court and remit the matters back to it for fresh decision of the aforesaid three appeals on revival in accordance with law and on granting a fresh hearing . Sequelly , the orders passed in Criminal Revision No. 1979 are also set aside and the matter is put back as a tagged matter with the appeals now put before the High Court .
3 . We notice that Aqeela Begum , one of the appellants , was granted bail by this Court . We order that she shall continue to be on bail while her appeal remains pending in the High Court . Other accused have also the liberty to apply to the High Court for grant of bail which if applied for , shall be dealt with on its own merit . Since the Matters are very old , let them rank top priority in disposal by the High Court .
