HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 910 of 1986 Court No. - 86 HON'BLE NALIN KUMAR SRIVASTAVA, J. 1. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record. 2. The present appeal has been preferred by the appellant S.I. Chhedi Lal Dinesh against the judgment and order dated 06.01.1986 passed by the learned VIIIth Additional Sessions Judge, Bulandshahr in Criminal Case No. 14 of 1985 (State Vs. S.I. Chhedi Lal Dinesh), under Section 350 Cr.P.C., Police Station Shikarpur, District Bulandshahr whereby the appellant was held guilty for the offence under Section 350 Cr.P.C. and was awarded punishment of Rs. 100/- as fine. 3. The prosecution case, as unfolded in the F.I.R., is that the appellant S.I. Chhedi Lal Dinesh was a witness in S.T. No. 18 of 1981 (State Vs. Netrapal and others), under Sections 399, 402 I.P.C., Police Station Khurja Dehat, District Bulandshahr and he was summoned for adducing his evidence on 16.09.1985. Despite service of notice, he did not appear before the court for the reasons best known to him. A notice was sent to him under Section 350 Cr.P.C. and explanation was given by the appellant that on the basis of illness of his mother, he had been on leave since 14.08.1985 to 18.08.1985 and Versus Counsel for Appellant(s) : A.B.L. Gaur Counsel for Respondent(s) : A.G.A. Chhedi Lal Dinesh .....Appellant(s) State of U.P. .....Respondent(s) for that reason, he could not attend the court on 16.08.1985. 4. The case against the present appellant was registered as Misc. Criminal Case No. 14 of 1985. 5. The learned trial court after perusing the explanation given by the appellant found that the said explanation is totally wrong. It was observed by the trial court that the present appellant was summoned to adduce his evidence before the court on 16.09.1985 and the summons was served upon him asking him to present before the court on 16.09.1985 which was served upon him on 29.08.1985. However, the explanation given by the appellant showing his inability to attend the court was for the date 16.09.1985 whereas he had explained his absence before the court on 16.08.1985. This explanation is irrelevant because he was not required to attend the court for adducing evidence on 16.09.1985 whereas he explained his absence for the period 14.08.1985 to 18.08.1985. 6. It is to be noted that the appellant was never summoned before the court for 16.08.1985 when he was not capable to attend the court due to illness of his mother. The learned trial court in the impugned judgment has also mentioned that when the appellant did not appear on 16.09.1985, an application was moved by the Additional District Government Counsel to issue non-bailable warrant and notice under Section 350 Cr.P.C. against him. On the basis of the aforesaid conduct of the appellant, the learned trial court found that the appellant did not appear before the court on 16.09.1985 voluntarily only to cause delay in disposal of the case. There is absolutely no explanation on the part of the appellant for his absence before the Court for the sake of recording CRLA No. 910 of 1986 2 his evidence on 16.09.1985. The learned trial court on the aforesaid grounds held him guilty under Section 350 Cr.P.C. and a fine to the tune of Rs. 100/- was imposed upon him as punishment and it was further directed that the fine amount of Rs. 100/- be deducted from the salary of the appellant and for this purpose warrant should be issued against him vide judgment and order dated 06.01.1986. 7. From perusal of the record, it appears that when the case was running at the stage of evidence on 20.07.1985 next date was fixed for 19.08.1985 for prosecution evidence. On 19.08.1985 statements of PW-1 and PW2 were recorded. Subsequently on several dates no witness was produced by the prosecution. On 05.11.1985 the evidence of PW-3 Surendrapal Singh was recorded and prosecution evidence was closed and ultimately final judgment was passed on 21.11.1985 and accused Patiram was acquitted for the charges levelled against him. 8. However, from perusal of the order sheets of the case under reference, it appears that no date was fixed for 16.09.1985 for recording evidence of the present appellant S.I. Chhedi Lal Dinesh. It is also nowhere mentioned in the order sheet that the witness S.I. Chhedi Lal Dinesh was actually never summoned by the trial court for adducing his evidence and there is no order sheet on record of the fact that the Additional District Government Counsel requested for issuance of non-bailable warrant and notice under Section 350 Cr.P.C. against the present appellant. In fact, date 16.09.1985 was never fixed for evidence. A perusal of the order sheets reflect that on 19.08.1985 evidence of two prosecution witnesses were recorded. The I.O./appellant was also present but due to paucity of time, his evidence could not be recorded and the case was adjourned for 29.08.1985 CRLA No. 910 of 1986 3 for evidence of I.O. However, on 29.08.1985 the P.O. was on leave and next date fixed was 09.09.1985 for evidence of I.O. On the said date no witness turned up and next date was fixed 19.10.1985 for evidence and the matter was again adjourned for 05.11.1985 on the ground that P.O. was on leave. Hence, it is very surprising that date 16.09.1985 was never fixed for evidence by the trial court and that is why no process should have been issued against the appellant to appear before the court on 16.09.1985 for adducing his evidence. Hence, prima facie, the proceeding started against the appellant under Section 350 Cr.P.C. is invalid and illegal. The present appellant cannot be convicted and punished for the offence which was actually not committed by him. The facts mentioned in the impugned judgment and order are incorrect and do not find support from the record itself. It is not understandable as to why the court mentioned in the impugned judgment that summons was issued to the appellant to adduce his evidence on 16.09.1985 whereas the said date was never fixed for evidence and on this basis, it may also be considered that no process should have been issued to the appellant to appear before the court for adducing his evidence on 16.09.1985. Hence, all the proceedings under Section 350 Cr.P.C. are wrong and perverse. The impugned judgment and order is erroneous and against the record. 9. Hence, the appellant is held not guilty for the offence under Section 350 Cr.P.C. and for the aforesaid reasons, the impugned judgment and order dated 06.01.1986 passed by the learned VIIIth Additional Sessions Judge, Bulandshahr in Criminal Case No. 14 of 1985 (State Vs. S.I. Chhedi Lal Dinesh), under Section 350 Cr.P.C., Police Station Shikarpur, District Bulandshahr is set aside. If CRLA No. 910 of 1986 4 the fine of Rs. 100/- has been deducted from the salary account of the appellant, it should be returned to him forthwith in accordance with law. 10. Accordingly, the appeal is allowed. 11. Let a copy of this order alngwith trial court record be sent to the court concerned for necessary compliance. August 27, 2025 Rmk. CRLA No. 910 of 1986 5 (Nalin Kumar Srivastava,J.) Digitally signed by :- RAM MURTI KUSHWAHA High Court of Judicature at Allahabad