Decided on July 04,2013



Barin Ghosh, J. - (1.) RESPONDENT No. 3 is present in Court. It is the respondent No. 3, (sic) moved the writ court with the plea (sic). Information Report filed by the appellant does not disclose any cognizable offence and, accordingly, the same be quashed. Respondent No. 3 withdrew the writ petition. By the order under Appeal, learned Judge, who dealt with the writ petition, permitted the writ petition to be withdrawn. Learned Judge, then, recorded as follows: "However, it is directed that petitioners shall appear/surrender before the A.C.J.M., Roorkee on or before 26th June, 2013 as stated by learned counsel for the petitioner. In the event of moving bail application, the same shall be decided sympathetically on the same day, in view of the fact that prima -facie Section 420 I.R.C. is not made out in the present case."
(2.) NO doubt, even after permitting the writ petition to be withdrawn, learned Judge could record a statement made by the counsel appearing in support of the writ petition. The first sentence of the above quotation, therefore, is permissible. In view of the said statement, learned Judge could also feel that since such surrender will be made, bail application, if moved, the same shall be decided on the same day. Learned Judge had no record before him after having had permitted withdrawal of the writ petition to record a prima facie view that Section 420 IPC is not made out in the case. The said prima facie view has been recorded by the learned Judge on a paper not before him and, accordingly, acted beyond his jurisdiction. Learned counsel for respondent No. 3 cited a judgment of a Division Bench of this Court, rendered in the case of Upendra Singh Maniyari vs. Jagmohan Singh and others reported in : 2010 (1) U.D. 139, for the purpose of demonstrating before us that an Appeal against an order passed on a petition filed for quashing a First Information Report is not maintainable. A look at the judgment would show that, after having had failed to obtain an order on the writ petition, writ petitioner cannot prefer an Appeal for the purpose of obtaining from the Appellate Court the order, prayed for in the writ petition. This judgment has no application to the present case. In the instant case, the Appeal is against an order, which has no existence in law at all. An appeal against such action is always maintainable. We, accordingly, allow the Appeal and delete from the order the following: "in view of the fact that prima -facie Section 420 I.P.C. is not made out in the present case." ;

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