RAMESH SINHA, J. - (1.) Order on Crl. Misc. Restoration/Recall Application No. 428513 of 2015 along with Crl. Misc. Delay Condonation Application No. 428510 of 2015. Heard Sri S.F.A. Naqvi, learned counsel for the applicants-petitioners, Sri Vimlendu Tripathi, learned Officiating Government Advocate assisted by Sri Ashish Pandey, learned A.G.A. for the State.
(2.) On 24.3.2017, an order was passed by this Court on the present restoration/recall application which is quoted herein below:- "Order on Crl. Misc. Recall/Restoration Application No.428513 of 2015 1. Heard Sri S.F.A. Naqvi, learned counsel for the petitioners, Sri Ashish Pandey, learned A.G.A. for the State and perused the material brought on record. 2. The present writ petition has been filed by the petitioners and petitioner no1 is the informant of the case. 3. It appears from the order sheet of the present writ petition that the present writ petition came up as fresh matter before another Bench of this Court on 3.12.2008, on which date following order was passed by another Bench of this Court, which is quoted here-in-below:- "List on 15th December, 2008. Learned AGA may seek instructions in the matter in the meanwhile" 4. On 15.12.2008, another Bench of this Court passed an order which is quoted here-in-below:- "Learned AGA prays for and is allowed 10 days' time for filing a counter-affidavit. List in the second week of January, 2009, to enable the learned A.G.A. to file the counter-affidavit." 5. On 29.4.2009 the present writ petition was dismissed for want of prosecution by another Bench of this Court, which is quoted here-in-below:- "List revised. No one has appeared on behalf of the petitioner to press this petition. The petition is accordingly dismissed for want of prosecution. Interim order, if any, is also vacated." 6. It further transpires from the record that a Crl. Misc. Restoration Application No.127836 of 2010 along with Crl. Misc. Delay Condonation Application No.127833 of 2010 dated 28.4.2010 was filed by the petitioners for restoring the said writ petition. 7. On 20.3.2015, another Bench of this Court passed an order which is quoted here-in-below:- "Heard the learned counsel for the petitioners and the learned A.G.A. for the State of U.P. The learned A.G.A. prays for and is granted two weeks time to file counter affidavit explaining therein as to why the delay in filing the restoration application may not be condoned. List on 10.4.2015" 8. On 10.4.2015 another Bench of this Court passed an order which is as under: "Learned A.G.A. submits that it appears that the order dated 20.3.2015 could not be communicated. He has noted the order today. List immediately after three weeks." 9. On 13.7.2015 another Bench of this Court passed an order which is quoted here-in-below:- Learned counsel for the petitioners prays for and is allowed two weeks' time to file a supplementary affidavit disclosing therein whether the investigation in the matter has been completed or is still pending. List this case on 30.7.2015." 10. It appears that on 30.7.2015 another Bench of this Court rejected the aforesaid Delay Condonation Application as well as Restoration Application by passing the following order, which is as under:- "Crl. Misc. Delay Condonation Application No.127833 of 2010 List has been revised. None appears to press this application. Accordingly, this application is rejected for want of prosecution." Criminal Misc. Restoration Application No. 127836 of 2010. Since the Delay Condonation Application has been rejected for want of prosecution, this application is also rejected. " 11. After dismissals of the aforesaid Delay Condonation Application as well as Restoration Application filed by the petitioners, the present Recall/Restoration Application along with the Delay Condonation Application dated 13.12.2015 has been filed in the present petition for recalling of the Court's order dated 30.7.2015, which was directed to be listed with previous papers by another Bench of this Court vide order dated 22.12.2015 which is pending disposal. 12. On 6.12.2016, this Court passed an order which is quoted here-in-below:- "Heard S.F.A. Naqvi, learned counsel for the petitioners and Sri Ashish Pandey, learned A.G.A for the State. Learned A.G.A is directed to inform this Court about the status of the investigation in this matter by the next date. List this matter on 20.12.2016." 13. The matter again came up before this Court on 13.1.2017 and this Court passed the following order:- "Case is passed over on the illness slip of Sri S.F.A. Naqvi, learned counsel for the petitioners. Sri Irshad Husain, learned A.G.A. is present on behalf of the State." 14. On 10.3.2017 this Court passed the following order which is quoted as under:- "Sri S.F.A. Naqvi, learned counsel for the petitioners and Sri Ashish Pandey, learned A.G.A. for the State are present. Sri S.F.A. Naqvi, learned counsel for the petitioners has stated that he has received counter affidavit from the State, wherein it has been stated that the sanction to prosecute the accused persons in the present case from the Competent Authority is still awaited but it appears from the record that the counter affidavit which has been filed by the State is not on record. Sri Ashish Pandey, learned A.G.A. for the State is directed to inform this Court on which date he has filed the said counter affidavit. List the matter in the next cause list." 15. Today, the matter is listed in the Daily Cause List at Serial No.71 for disposal of the present Delay Condonation Application along with the Restoration Application. 16. It appears from the record the present writ petition was dismissed for want of prosecution on 29.4.2009 by another Bench of this Court and to recall the said order, a Crl. Misc. Restoration Application No.127836 of 2010 along with Crl. Misc. Delay Condonation Application No.127833 of 2010 was filed and the same was dismissed by another Bench of this Court on 30.7.2015 and the present Recall/Restoration Application along with Delay Condonation has been filed to recall the order dated 30.7.2015 passed by another Bench of this Court in Crl. Misc. Restoration Application No.127836 of 2010 and Crl. Misc. Delay Condonation Application No.127833 of 2010 to its original number, but there appears to be no prayer made in the present Recall/Restoration Application for recalling of the order dated 29.4.2009 passed by this Court by which the present writ petition was dismissed for want of prosecution and restoring the writ petition to its original number. Hence, the prayer made in the present Recall/Restoration Application appears to be defective one. 17. Sri Naqvi, learned counsel for the petitioners states that there appears to be three affidavit of compliance have been filed by learned AGA for the State, i.e.,(i) dated 24.4.2015 of Sri Bhushan Upadhyay, (ii) Dated 17.12.2016/23.12.2016 of Sri Anand Narain Singh, Inspector C.B.C.I.D., Gorakhpur Sector Gorakhpur and (iii) Dated 20.2.2017/ 7.3.2017 of Sri Anand Narain Singh, Inspector C.B.C.I.D., Gorakhpur Sector Gorakhpur and further a supplementary affidavit dated 18.12.2015 has also been filed by the petitioners in the present matter. 18. As per the Officer report, an affidavit of compliance dated 23.12.2016 numbered as 401875 of 2016 and other affidavit of compliance dated 7.3.2017 numbered as 80688 of 2017 have been placed on record and the same are available on record, but the affidavit of compliance which has been referred by learned counsel for the petitioners, i.e., dated 24.4.2015 of Sri Bhushan Upadhyay and supplementary affidavit dated 18.12.2015 filed by the petitioners are not on record. 19. Learned counsel for the petitioners has made submissions on merits of the case but to consider the said submissions and adjudicate upon the merits of the case, it is first necessary to dispose of the Crl. Misc. Delay Condonation Application No.428510 of 2015 along with the present Crl. Misc. Recall/Restoration Application No.428513 of 2015 but the prayer made in the said Recall/Restoration Application appears to be a defective one. The petitioners may amend the prayer of the present Recall/Restoration Application by the next date, if so desires. 20. As the affidavit of compliance of Sri Bhushan Upahdyay dated 24.4.2015 filed by the learned AGA as referred by the learned counsel for the petitioners and supplementary affidavit filed by the petitioners dated 18.12.2015 are not on record. Hence, Office is directed to trace out the same and place it on record. 21. List the matter after three weeks for disposal of the present Delay Condonation Application along with the present Recall/Restoration Application."
(3.) The matter again came up before this Court on 28.4.2017 on which date following order was passed:- "An amendment application as well as supplementary affidavit have been filed today by learned counsel for the petitioners which are taken on record. Heard Sri S.F.A. Naqvi, learned counsel for the petitioners and Sri Ashish Pandey, learned A.G.A. assisted by Sri Imran Saiyed, learned Brief Holder for the State. Learned counsel for the petitioners submits that on 24.3.2017, the matter was heard by this Court on the recall/restoration application as well as on merit but due to some defect in the prayer of recall/restoration application, amendment was required in the prayer of recall/restoration application, hence he has filed the amendment application today. He prays that the same may be allowed. Considering the submissions advanced by learned counsel for the petitioners and the averments made in the amendment application, the amendment application filed in Crl. Misc. Recall/Restoration Application No. 428513 of 2015 is hereby allowed. Office is directed to allot regular number to it. Learned counsel for the petitioners is directed to make necessary amendment in the said recall/restoration application during the course of the day. Considered the submissions advanced by learned counsel for the parties and perused the record. From a perusal of the record, it appears that the matter of sanction regarding prosecution of the accused persons is pending before the State Government and the question of grant of sanction for prosecution is to be decided by the Head of the State Government, who himself is a prime accused in the present F.I.R. lodged by petitioner no. 1. As the said question which has crop up in the matter before this Court requires proper adjudication, learned counsel for the parties are directed to assist the Court in the matter on the next date fixed by placing legal proposition of law in the matter. Put up the matter for further argument on 4.5.2017. " ;