R.K.Rastogi, J. - (1.) COMPLAINANT Satish Kumar Dubey, arrayed as opposite party No. 2 in Crl. Misc. Application No. 26431 of 2007 has filed Criminal Misc. Recall Application No. 265084 of 2007 for recall of the order dated 31.10.2007 passed by Hon'ble S. S. Kulshrestha, J. in the above Criminal Misc. Application No. 26431 of 2007, Ram Kishan v. State of U. P. and another.
(2.) THE facts relevant for disposal of this application are that Sri Satish Kumar Dubey had moved an application before the S. S. P. Ghaziabad on 17.6.2006 against the accused Ram Kishan (applicant in Criminal Misc. Application No. 26431/07) and co-accused Damodar Das, Suresh Chand Dobariyal, P. K. Banerji, K. C. Dobariyal and K. K. Kaushik with these allegations that he is a member of 'Vartalok Sahkari Samiti Vasundhara', P.S. Indirapuram District Ghaziabad and the accused are office bearers of that society. He and other members of that Society had deposited approximately rupees one crore in respect of their Flats and they had details of those deposits with them. However, upon inquiry made from the authorities of the Housing Board they came to know that no amount had been deposited by the Society with the Housing Board and in spite of repeated requests, these office bearers of the society were not executing any sale deed in favour of their members nor they were depositing the amount with the Housing Board, nor they were giving any satisfactory reply, and, in this way, they had committed criminal breach of trust in respect of that amount of one crore rupees and they were getting the flats released from the Housing Board on the basis of fictitious documents. It was, therefore, prayed that action should be taken in the matter against the accused persons. On the basis of the order of the S. S. P., Ghaziabad passed on the aforesaid application, the police of P. S. Indirapuram District Ghaziabad registered a F.I.R. against the accused persons on 1.7.2006 as Case Crime No. 384/06 under Sections 420, 467, 468 and 471, I.P.C. P. S. Indirapuram and investigated the same. After completion of investigation, the I.O. submitted a charge-sheet against all the above named accused persons in the Court of C.J.M., Ghaziabad under Sections 420, 467, 468 and 471, I.P.C. The Chief Judicial Magistrate took cognizance on that charge-sheet on 9.8.2007. Aggrieved with the above order taking cognizance, all the above named accused persons filed an application, being Criminal Misc. Application No. 22268 of 2007, Damodar Das Upadhyay and others v. State of U. P. and another under Section 482, Cr. P.C. through Sri Anurag Pathak advocate on 5.9.2007. Ram Kishan (the sole applicant in Crl. Misc. Application No. 26431/07) was impleaded as applicant No. 6 in this Crl. Misc. Application No. 22268/07, Sri Kamal Krishna, advocate had put in appearance on behalf of the complainant opposite part No. 2, at the time of hearing on admission of this application, and Hon'ble Vinod Prasad, J., after hearing both the parties finally disposed of the above application at the stage of admission on 11.9.2007 with the following order : "Sri Kamal Krishna advocate has filed his power on behalf of the respondent, which is taken on record. Heard learned counsel for the applicants and learned A.G.A. The applicants through this application have prayed for quashing of the charge-sheet in Case Crime No. 384/06 under Sections 420, 467, 468 and 471, I.P.C. pending in the Court of C.J.M., Ghaziabad. There is no reason to quash the charge-sheet. This application is meritless. The said prayer is refused. However, it is directed that if the applicants appear or surrender before the trial court on or before 21.9.2007 and move an application for bail in the aforesaid case, the same shall be disposed of as expeditiously as possible, if possible on the same day by both the courts below, after giving opportunity of hearing to the prosecution. Non-bailable warrant issued against the applicants shall remain in abeyance till 21.9.2007 to enable them to appear before the Court concerned and to seek bail. In case of default property of applicants shall be attached forthwith. With the aforesaid direction this application is finally disposed of."
(3.) IT is apparent from perusal of the above order that the prayer for quashing of the charge-sheet was refused on merits but it was directed that if the applicants appear or surrender before the Court on or before 21.9.2007 and move an application for bail, the same shall be disposed of as expeditiously as possible, and if possible on the same day by both the courts below, after giving opportunity of hearing to the prosecution and execution of non-bailable warrant was directed to be stayed till 21.9.2007 to enable the applicants to appear before the trial court and to apply for bail. IT was further ordered that in case of default, property of the applicants shall be attached forthwith. It appears that the accused applicants did not comply with the above order and Ram Kishan, who was applicant No. 6 in the above case (Crl. Misc. Application No. 22268/07), moved another application being Criminal Misc. Application No. 26431/07 under Section 482, Cr. P.C. in this Court on 29.10.2007 for quashing of the above charge-sheet, concealing the filing of aforesaid Criminal Misc. Application No. 22268/07 and obtained orders from Hon'ble S. S. Kulshrestha, J. staying furhter proceedings of Criminal Case No. 13608 of 2007 under Sections 420, 467, 468 and 471, I.P.C., P.S. Indirapuram, Ghaziabad pending in the Court of Addl. District Judge, Ghaziabad at that time. When notice of this case was received by opposite party No. 2, Satish Kumar Dubey, he moved Criminal Misc. Recall Application No. 265084 of 2007 before this Court for recalling the stay order dated 31.10.2007 alleging that it had been obtained by concealing the material facts as well as the filing of previous Criminal Misc. Application No. 22268/07 before this Court and so the stay order dated 31.10.2007 should be vacated and suitable action may be taken against Ram Kishan for filing a false affidavit in Crl. Misc. Application No. 26431/07.;