Allahabad High Court seeks explanation from judge for contradictory orders in similar cases

The Allahabad High Court recently sought an explanation from a Magistrate for passing “two diametrically opposite orders” in two cases with similar set of facts [Mohammad Saquib Khan vs Directorate of Enforcement]..Justice Pankaj Bhatia of High Court said that it was extremely arbitrary decision making by the concerned judge and ordered that the officer’s explanation be placed on record for perusal and any further action, if required.“The two orders passed by the Magistrate in similar facts and circumstances demonstrates an extremely arbitrary decision making of the judicial officer concerned in deciding similar applications. Thus, Registrar General is directed to call for a report from the court concerned explaining the manner in which two diametrically opposite orders have been passed while exercising the jurisdiction in the same set of facts being the order dated 24.06.2024 passed in Sessions Case No.2963 of 2024 and the order dated 03.06.2024 passed in Criminal Case No. 1417 of 2018,” the Court ordered..The Bench passed the order in its judgement on a petition challenging the trial court’s order to not grant exemption from appearance to an accused in a case being prosecuted by the Enforcement Directorate (ED). The trial court had refused to consider the accused’s request for exemption from personal appearance on the ground that he himself had undertaken to remain present on all dates when the bond was taken for it under Section 88 of the Code of Criminal Procedure (CrPC)..Challenging the trial court’s decision, the counsel representing the accused submitted that the ED complaint was filed without arresting him and he then appeared before the court and moved an application under Section 88 CrPC giving personal bond. The application was accepted by the trial court with the condition that he would remain present on all dates and cooperate with the trial.The Court was further told that exemption was sought thereafter as the accused is a resident of Bengaluru and since the dates are being fixed on a weekly basis, the same was not economically feasible for him. It was also submitted that he had undertaken to appear on specific dates when framing of charges and proceedings under Section 313 of CrPC take place.To buttress his case, the accused placed on record an order passed by the same court in another case where also the accused had sought exemption on the ground of distance required to be travelled. In that case also, the charge has been framed, the Court was told..Considering the law and the facts, the Court opined that since no date was fixed for framing of charge, there was no necessity to call the accused as he had given an undertaking to appear through pleader and remain present personally on essential dates.“The rejection of the application on the grounds as mentioned in the impugned order being that the applicant had himself undertaken to appear in the undertaking under section 88 Cr.P.C., is wholly erroneous and deserves to be rejected and is accordingly rejected. The interpretation as recorded in the order is wholly perverse and contrary to the mandate of law,” it added..Thus, the Court directed the trial judge to grant exemption from appearance to the accused for regular dates.It will be open to the Magistrate to call for personal appearance of the applicant at the time of framing of charge and thereafter whenever required for the reasons to be recorded, the Court further said.“Till the time, the fresh order, as directed above, is passed, the applicant would not be required to be present. The applicant would however be present through his advocate on all the date fixed,” it ordered, while disposing of the application..Advocate Tamjeed Ahmad and Shailendra Yadav represented the accused.Advocate Shiv P Shukla represented the Enforcement Directorate.[Read Judgment]