# Aditya Mishra v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-04
- **Case number:** Application U/S 482 No. 5154 of 2022
- **Bench:** Ajai Kumar Srivastava I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-mishra-v-state-of-u-p-anr-48751
- **Pages:** 13

## Headnote

242 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Criminal Procedure
Code,1973 - Section 200 - Proviso (a) -
Summoning order - - Quashing of -
Complaint
by
public
servant
-
No
examination
of
complainant
and
witnesses was held - Effect - Legality of
summoning order challenged - Held,
once a complaint is filed by a public
servant in discharge of his official duty,
in view of proviso (a) to Section 200
Cr.P.C., the Magistrate is fully justified
in taking the cognizance of the offences
without recording the St.ment of the
complainant. (Para 13)
B. Criminal Procedure Code - Section
482 - Scope - Offences under Sections
193, 196, 200, 209, 466, 467 & 468
I.P.C. r/w S. 340/195 Cr.P.C. - Nondisclosure of ingredients of the offence
in complaint, how far a ground of
quashing the criminal proceeding - Held,
while exercising jurisdiction u/s 482 of
Cr.P.C., the Court would not ordinarily
embark upon an enquiry into whether
the evidence is reliable or not or
whether there is reasonable possibility
that
the
accusation
would
not
be
sustained. (Para 15)
C. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Summoning
order - How far can be interference
with, in the presence of availability of
statutory remedy of Criminal Revision -
Held, the impugned summoning order
being revisable, the statutory remedy of
filing a criminal revision is available to
the applicant. Invoking the jurisdiction
u/s 482 Cr.P.C., at the initial stage by
circumventing the statutory remedy of
filing
criminal
revision
against
the
impugned order, appears by itself to be
abuse of process of this Court by the
applicant. (Para 17)
Application dismissed. (E-1)
List of Cases cited:-

## Text

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8 All. Aditya Mishra Vs. State of U.P. & Anr.
241
whether it caused any loss to the
complainant and whether there is the
requisite mens rea are the questions which
are yet to be determined. The Magistrate
has not found clear material to proceed
against the accused. Even a case for
summoning has not yet been found. While a
transaction giving rise to cause of action
for a civil action may also involve a crime
in
which
case
resort
to
criminal
proceedings may be justified, there is
judicially acknowledged tendency in the
commercial world to give colour of a
criminal case to a purely commercial
transaction. This Court has cautioned
against such abuse."

10. It is, thus, abundantly clear that in
view of law laid down by the Division
Bench of this Court in Sukhwasi (supra)
and Ramdev Food Products (P) Ltd.
(supra), it cannot be said that a Magistrate,
while entertaining an application filed
under Section 156 (3) Cr.P.C. cannot reject
or treat the same to be a complaint.

11. So far as the question of recovery
of alleged tractor is concerned, it is
pertinent to mention that keeping in view
the provisions contained in Section 202
Cr.P.C. in its entirety it is held in M/s.
Cucusan Foils Pvt. Ltd. vs. State (Delhi
Admn.), 1991 Cr.LJ 683 in paragraph
No.16, as under :-

"16. Even this judgment says
that once the Magistrate proceeds on the
basis of the original complaint, then he
must first proceed to examine on oath the
complainant and his witnesses under
Section 200 and thereafter either hold an
enquiry himself or direct the enquiry to be
held by police officer under Section 202 of
the Code, as he thinks fit and then either
dismiss the complaint or issue the process,
as the case may be."

 (emphasis supplied)

12. Therefore, it is also open to the
learned Magistrate, at the appropriate stage,
to do the needful in this regard, keeping in
view the provisions of Section 202 Cr.P.C.
and law laid down by Delhi High Court in
M/s. Cucusan Foils (Supra).

13. In view of what has been
discussed above, the impugned order
passed by learned Magistrate, whereby he
has treated the application filed under
Section 156 (3) Cr.P.C. as a complaint,
cannot be said to be illegal. The impugned
order cannot be said to be an abuse of
process of the Court either. Therefore, the
present application lacks merit and is liable
to be dismissed.

14. In view of the aforesaid
discussion, the present application is
disposed of.
----------
(2022) 8 ILRA 241
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.08.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA I, J.

Application U/S 482 No. 5154 of 2022

Aditya Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anil Kumar Tiwari, Abhishek Dwivedi

Counsel for the Opposite Parties:
G.A., Gaurav Mehrotra
242 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Criminal Procedure
Code,1973 - Section 200 - Proviso (a) -
Summoning order - - Quashing of -
Complaint
by
public
servant
-
No
examination
of
complainant
and
witnesses was held - Effect - Legality of
summoning order challenged - Held,
once a complaint is filed by a public
servant in discharge of his official duty,
in view of proviso (a) to Section 200
Cr.P.C., the Magistrate is fully justified
in taking the cognizance of the offences
without recording the St.ment of the
complainant. (Para 13)
B. Criminal Procedure Code - Section
482 - Scope - Offences under Sections
193, 196, 200, 209, 466, 467 & 468
I.P.C. r/w S. 340/195 Cr.P.C. - Nondisclosure of ingredients of the offence
in complaint, how far a ground of
quashing the criminal proceeding - Held,
while exercising jurisdiction u/s 482 of
Cr.P.C., the Court would not ordinarily
embark upon an enquiry into whether
the evidence is reliable or not or
whether there is reasonable possibility
that
the
accusation
would
not
be
sustained. (Para 15)
C. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Summoning
order - How far can be interference
with, in the presence of availability of
statutory remedy of Criminal Revision -
Held, the impugned summoning order
being revisable, the statutory remedy of
filing a criminal revision is available to
the applicant. Invoking the jurisdiction
u/s 482 Cr.P.C., at the initial stage by
circumventing the statutory remedy of
filing
criminal
revision
against
the
impugned order, appears by itself to be
abuse of process of this Court by the
applicant. (Para 17)
Application dismissed. (E-1)
List of Cases cited:-
1. Deputy Chief Controller of Imports & Exports
Vs Roshanlal Agarwal; AIR 2003 SC 1900
2.
Nupur
Talwar
Vs
Central
Bureau
of
Investigation & anr.; (2012) 11 SCC 465
3. St. of Andhra Pradesh Vs Gourieshetty
Mahesh; (2010) 6 SCC 588
4. Municipal Corporation of Delhi Vs Ram Kishan
Rohtagi & ors.; (1983) 1 SCC 1
(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard Sri Anil Kumar Tiwari,
learned counsel for the applicant, Sri Alok
Saran, learned A.G.A. for the State, Sri
Gaurav
Mehrotra,
learned
counsel
appearing for the opposite party no.2 and
perused the entire record.

2. The instant application has been
filed by the applicant for quashing the
summoning order dated 01.07.2022 passed
by Chief Judicial Magistrate, Lucknow in
Complaint Case No.58823 of 2022 "State
of U.P. through Senior Registrar vs. Aditya
Mishra", under Sections 193, 196, 200,
209, 466, 467, 468 I.P.C. read with Section
340/195 Cr.P.C., Police Station Vibhuti
Khand, District Lucknow as well as the
entire proceeding of Complaint Case
No.58823 of 2022 "State of U.P. through
Senior Registrar vs. Aditya Mishra",
pending in the Court of Chief Judicial
Magistrate, Lucknow.

3. In order to appreciate the facts &
circumstances which led to filing of
Complaint Case No.58823 of 2022, it
would be useful to extract herein below the
order dated 20.05.2022 passed by a Coordinate Bench of this Court in Writ B
No.251 of 2022 "Smt. Shams Kazmi vs.
Board of Revenue U.P. Though its Secy.
Lucknow and others":

"1. Heard Sri Shyam Mohan
Pradhan, learned counsel who appears for
the petitioner in the instant petition which
has been filed along with the affidavit of Sri
Aditya Mishra who is supposedly the
8 All. Aditya Mishra Vs. State of U.P. & Anr.
243
authorized pairokar of the petitioner, Smt.
Shams Kazmi and Sri Sunil Kumar
Srivastava, learned counsel who appears
for Smt. Shams Kazmi who has appeared in
person, the learned Additional Chief
Standing Counsel and the counsel for the
caveator.

2. This matter has been listed
before this Court today in light of the order
passed on 12.05.2022 and the said order
reads as under:-

"Heard
Shri
Shyam
Mohan
Pradhan,
learned
counsel
for
the
petitioner.

At the very outset, before the
matter
could
be
heard,
Shri
S.K.
Srivastava, learned counsel had stood out
to inform the Court that the instant petition
has not been filed by Smt. Shams Kazmi.
He further states that neither the petitioner
Smt. Shams Kazmi has authorized Shri
Aditya Misra to institute the above petition
nor any power of attorney has been
executed by her in his favour entitling him
to file the said petition. He has also moved
an application seeking dismissal of the
aforesaid
petition
on
the
aforesaid
grounds.

The
said
application
is
accompanied with an affidavit of the
petitioner herself. He further submits that
the petition has been deliberately got
instituted only to get the order passed by
the Board of Revenue affirmed whereby
harming the rights of the present petitioner.
The paragraphs 5 to 8 of the affidavit filed
by the petitioner Smt. Shams Kazmi is
reproduced hereinafter:-

"5.
That
both
orders
dated
09.09.2016 and 03.10.2020 was challenged
before Board of Revenue in second appeal by
opp.parties of the aforesaid writ petition,
there is no doubt that deponent is impleaded
in place of her husband after death and
second appeal was decided on 25.03.2022
cancelling orders dated 09.09.2016 and
03.10.2020.

6. That deponent was not aware
with the proceeding of the cases as her
husband died on 06.05.2021, it is evident that
deponent is impleaded as successor of
deceased husband before Board of revenue.

7. That the deponent became
shocked when she acknowledged about the
aforesaid writ petition preferred against
order of Board of Revenue dated 25.03.2022
on behalf of deponent by some unknown
person who became pairokar of deponent
showing his name Aditya Mishra. The
deponent never gave any power and attorney
to Aditya Mishra for contesting the case
against the order of Board of Revenue. There
is some camouflage of other parties by whom
Adiya Mishra became pairokar to defeat
deponent and giving helping hands to the
opp.parties.

8. That the deponent never signed
upon the writ petition and no any power and
attorney was given to Aditya Mishra, he is a
stranger for deponent and may harm to the
deponent through alleged writ petition."

In this view of the matter, let Aditya
Mishra as well as Smt. Shams Kazmi appear
in person before this Court on 20.05.2022
along with their respective identities and Shri
Mishra shall also carry the authority or
power of attorney on the basis of which the
petition has been filed by him.

List
this
matter
again
on
20.05.2022, as fresh.

If any application is moved by
any of the parties for withdrawal of the
petition, the same shall also be considered
on the next date fixed itself i.e. 20.05.2022.

Office to reflect the name of Shri
S.K. Srivastava as counsel for the applicant
when the case is next listed"

3. In furtherance of the said
order, Sri Aditya Mishra has appeared so
also Smt. Shams Kazmi. Sri Aditya Mishra
244 INDIAN LAW REPORTS ALLAHABAD SERIES
has been identified by Sri Shyam Mohan
Pradhan, learned counsel for the petitioner
and Smt. Shams Kazmi is accompanied by
Sri Sohail Menhdi Khan who is reported to
be her nephew and relative and she is
identified by Sri Sunil Kumar Srivastava,
learned counsel appearing for Smts. Shams
Kazmi.

4. First the Court had put a
question to Sri Aditya Mishra regarding
under which authority, he had filed the
instant petition on behalf of Smt. Shams
Kazmi, however, he answered that he does
not have any written authority nor any
power of attorney has been executed in his
favour by Smt. Shams Kazmi. He was then
asked what is his qualification and he
answered that is able to read and
understand
English
reasonably
but
understands Hindi very well and that he is
not educated. Thereafter he gave another
statement that he is intermediate pass.

5. He was also specifically asked
under what provision could he file an
affidavit on behalf of the petitioner without
any authority to which he answered that he
was explained about the petition by some
Mr. Tripathi, a junior counsel in the
chamber of Mr. Akhilesh Kalra, who is also
a counsel in the instant matter. He
volunteered and stated that he has a Will in
his favour executed by Sri Kazim Ali Khan,
the late husband of Smt. Shams Kazmi and
in this view of the matter, he was known to
Smt. Shams Kazmi and that he had been
authorized to file the instant petition.
Another question which was put to Sri Sri
Aditya Mishra was whether he has
disclosed the fact that Nawab Kazim Ali
Khan had executed any Will in his favour
or whether this fact was brought to the
notice of any of the Courts through which
the instant petition has emanated. He
answered in the negative and stated that
this fact has not been disclosed nor stated.
He was further asked the reason for not
disclosing the aforesaid fact to which he
kept quite and had no answer.

6. Thereafter the Court called
upon Smt. Shams Kazmi and was asked
about her age and also the reason whether
she understood why she has been called
before the Court. Smt, Shams Kazmi stated
that she is 82 years old and earlier her
husband was contesting the proceedings,
however, upon his death, number of
persons have come forward to institute
proceedings in her name and the present
petition is also one such attempt by an unauthorized person of which she had no
knowledge or idea. Only when she became
aware that her signatures are being forged
and that petition has been filed in her name
that she has authorized Sri Sunil Kumar
Srivastava who appeared before the Court
on 12.05.2022 and had filed an affidavit
before the Court on the said date. She also
stated she has two daughters who are
married and settled and she has none to
fall back upon and taking advantage of the
aforesaid, numbers of persons posing as
advocates, well-wishers etc. are flocking to
institute proceedings in the name of the
petitioner in order to usurp her property.

7. A specific question was put to
Smt. Shams Kazmi as to whether she
recognized the person who is before the
Court today and has been identified as Sri
Aditya Mishra by Sri Shyam Mohan
Pradhan. Smt. Shams Kazmi categorically
denied and could not identify Sri Aditya
Mishra and stated that she does not know
any such person nor she had seen him
before, today. A further question was put to
Smt. Kazmi as to whether she had executed
any document authorizing any person to
institute any proceedings on her behalf and
that whether she had authorized any person
orally or otherwise to institute any
proceedings before this Court or continue
8 All. Aditya Mishra Vs. State of U.P. & Anr.
245
any proceedings on her behalf to which she
replied in the negative and stated that she
has not executed any authority in favour of
Sri Aditya Mishra or anyone to continue or
contest any proceedings before this Court
on her behalf and there appears to be
number of persons who are interested in
fabricating her signatures to grab her
property.

8. The aforesaid statements of Sri
Aditya Mishra and Smt. Shams Kazmi were
recorded in open Court in front of the
learned counsel appearing for the parties.

9. After the statements were
recorded, the Court directed both Smt.
Shams Kazmi as well as Sri Aditya Mishra
to sign on the order sheets as well as their
respective counsel who identified them.

10. Having noticed the aforesaid
statements and perusing the material on
record, this Court is prima facie satisfied
that the instant petition preferred in the
name of Smt. Shams Kazmi through Sri
Aditya Mishra is not bonafide and appears
to be an abuse of the process of Court.

11. It has been admitted by Sri
Aditya Mishra that he does not have any
authority written or otherwise to institute
the petition and file the affidavit. Thus, the
institution of the petition by filing an
affidavit of a third party stranger i.e. Sri
Aditya Mishra is nothing but an abuse of
the process and an attempt to deliberately
mislead the Court.

12. It will be relevant to notice
that the issue regarding institution of a
petition and who can file an affidavit on
behalf of the petitioner has been the subject
matter before the Full Bench of this Court
in the case of Syed Wasif Hussain Rizvi Vs.
Hasan Raja Khan and 6 others 2016 SCC
Online (Alld.) 175 (FB) wherein after
considering the various provisions of the
Power of Attorney Act and the Allahabad
High Court Rules, 1952 and other
provisions wherein in paragraph 7, 8, 12,
18, 19, 24, 25 and 26, the Full Bench
observed as under:-

......7. The Allahabad High Court
Rules, 19527 contain in Chapter XXII
provisions for directions, orders or writs
under Article 226 and Article 227 of the
Constitution (other than a writ in the
nature of habeas corpus). Under Rule 1(1)
of Chapter XXII, an application for a
direction, order or writ under Article 226
and Article 227 of the Constitution (other
than a writ in the nature of habeas corpus)
is required to be made to the Division
Bench appointed to receive applications.
Rule 1(2) stipulates that the application
shall set out concisely in numbered
paragraphs the facts upon which the
applicant relies and the grounds on which
the Court is asked to issue a direction,
order or writ and has to conclude with a
prayer setting out the exact nature of the
relief sought. The Rule further stipulates
that the application shall be accompanied
by an affidavit or affidavits verifying the
facts stated therein by reference to the
numbers
of
the
paragraphs
of
the
application containing the facts. Such
affidavits shall be restricted to facts which
are within the deponent's own knowledge
and shall further state whether the
applicant has filed, in any capacity
whatsoever, any previous application on
the same facts and, if so, the orders passed.

8. Chapter IV of the Allahabad
High Court Rules provides for affidavits
and
Oath Commissioners.
Rule
9(2)
stipulates that an affidavit filed on behalf of
the petitioner(s), appellant(s) or, as the
case may be, revisionist(s), shall mention
the relationship, association or connection
of the deponent with the person on whose
behalf it has been filed. Rule 12 stipulates
that except on interlocutory applications,
an affidavit shall be confined to such facts
246 INDIAN LAW REPORTS ALLAHABAD SERIES
as the deponent is able of his own
knowledge to prove. On an interlocutory
application where a particular fact is not
within the deponent's own knowledge but is
based on his belief or information received
from others, which he believes to be true,
the deponent is required to use the
expression that he is informed and verily
believes such information to be true or
words to that effect.

12. Affidavits under the CPC are
governed by the provisions of Order XIX.
Order XIX Rule 3 provides that affidavits
shall be confined to such facts as the
deponent is able of his own knowledge to
prove, except on interlocutory applications,
on which statements of his belief may be
admitted, provided that the grounds thereof
are stated. The Allahabad amendment to
Order XIX, inter alia, contains the
following in Rule 9:

9.
Except
in
interlocutory
proceedings, affidavits shall strictly be
confined to such facts as the declarant is able
of
his
own
knowledge
to
prove.
In
interlocutory proceedings, when the particular
fact is not within the declarant's own
knowledge, but is stated from information
obtained from others, the declarant shall use
the expression ?I am informed?, and, if such
be the case, and verily believe it to be true?,
and shall state the name and address of, and
sufficiently describe for the purposes of
identification, the person or persons from
whom he received such information. When the
application or the opposition thereto rests on
facts disclosed in documents or copies of
documents produced from any Court of Justice
or other source, the declarant shall state what
is the source from which they were produced,
and his information and belief as to the truth
of the facts disclosed in such documents. (225-1915).

18. These principles which have
been laid down by the judgments of the
Constitution Benches of the Supreme Court
elucidate the binding position in law. The
right which is sought to be pursued in the
exercise of writ jurisdiction under Article
226 of the Constitution is a right personal
to the petitioner. The only exception which
is contemplated, is in the case of a writ of
habeas corpus or in a writ of quo warranto.
The exception in the case of a writ of
habeas corpus is necessitated in order to
protect the value which the common law
and the Constitution place on personal
liberty which enables a writ to be moved by
a person other than a person whose right is
sought to be espoused. Similarly, the object
and purpose of a writ of quo warranto is to
protect a public office from a usurper who
is continuing in the office in breach of the
qualifications or eligibility prescribed for
holding such an office of a public nature.
The Division Bench of this Court, when it
decided the case of Prabhu Nath Prasad
Gupta (supra) was not really called upon to
decide whether a writ petition could be
instituted through the holder of a power of
attorney. That was a case where an order
of eviction was sought to be challenged not
by the person to whom an accommodation
had been allotted and who was sought to be
removed but by his mother. This was
clearly not permissible since the petitioner
who had moved those proceedings was not
espousing a case personal to her nor was
she authorised to do so as an agent of the
person who was directly affected.

19. This decision of the Division
Bench in Prabhu Nath Prasad Gupta holds,
however, that it becomes immaterial
whether the power of attorney holder or
someone else files a case in his name for
the person aggrieved or the person
aggrieved files a case through the power of
attorney holder, and the petition itself
would not be maintainable. With great
respect, we are unable to agree with this
8 All. Aditya Mishra Vs. State of U.P. & Anr.
247
statement of law contained in the judgment
of the Division Bench. We clarify that there
can be no dispute about the principle which
has been laid down by the Division Bench
to the effect that the petitioner in the
exercise of the writ jurisdiction under
Article 226 of the Constitution must pursue
a claim, right or cause of action personal
to him or her. However, when the petitioner
seeks to do so through the holder of a
power of attorney, the donee of the power
of attorney is no more than an agent who
acts for and on behalf of the donor, for the
reason that the donor is, for some reason,
unable to present himself or herself before
the
Court
in
order
to
pursue
the
proceedings. The donor of the power of
attorney may be incapacitated from doing
so temporarily for reasons or exigencies,
such as exigencies of service or station or,
for
that
matter,
an
ailment
which
immobilizes him or her from pursuing the
proceedings personally. The important
point to be noted, as a matter of principle,
is that when the donor authorises the donee
to act on his or her behalf, the donee acts
as an agent and is subject to the limitations
which are created by the instrument by
which he is authorised. The donee does not
pursue a claim or right personal to him but
it is the donor who espouses his own
personal right through the holder of a
power of attorney.

24. When a writ petition under
Article 226 of the Constitution is instituted
through a power of attorney holder, the
holder of the power of attorney does not
espouse a right or claim personal to him
but acts as an agent of the donor of the
instrument. The petition which is instituted,
is always instituted in the name of the
principal who is the donor of the power of
attorney and through whom the donee acts
as his agent. In other words, the petition
which is instituted under Article 226 of the
Constitution is not by the power of attorney
holder independently for himself but as an
agent acting for and on behalf of the
principal
in
whose
name
the
writ
proceedings are instituted before the Court.

"......25. Having held so, we must,
at the same time, emphasize the necessity of
observing adequate safeguards where a
writ petition is filed through the holder of a
power of attorney. These safeguards should
necessarily include the following:

(1) The power of attorney by
which the donor authorises the donee, must
be brought on the record and must be filed
together with the petition/application;

(2)
The
affidavit
which
is
executed by the holder of a power of
attorney must contain a statement that the
donor is alive and specify the reasons for
the inability of the donor to remain present
before the Court to swear the affidavit; and

(3) The donee must be confined to
those acts which he is authorised by the
power of attorney to discharge.

26. For these reasons, we hold
and have come to the conclusion that the
question referred for adjudication before
the Full Bench must be answered in the
affirmative and is accordingly answered,
subject to due observance of the safeguards
which we have indicated above."

Thus, in view thereof, this Court
is prima facie satisfied that Sri Aditya
Mishra did not have any authority to
institute the petition in the name of Smt.
Shams Kazmi.

13. Upon perusal of the material
available on record, this Court finds that
the statement given by Sri Aditya Mishra
before this Court is also misleading and
incorrect, inasmuch as, first he had stated
that he is able to read and understand
English reasonably and Hindi very well
then he stated that he is not educated and
further he improved his statement by
248 INDIAN LAW REPORTS ALLAHABAD SERIES
saying that he is intermediate pass. This
also castes a doubt, inasmuch as, the
affidavit which has been filed by Sri
Aditya Mishra in support of the petition,
he has stated his qualification to be a
Graduate and has shown his occupation
as business.

The
contents
of
the
paragraphs signed and filed by Sri
Aditya Mishra before this Court along
with the petition is being reproduced
hereinafter for ready reference:

"Affidavit

"I, Aditya Mishra, aged about
44 years s/o Shri Jagat Narayan
Mishra,
Qualification:
Graduate,
Occupation: Business, R/o C-3/67,
Vishesh
Khand,
Gomti
Nagar,
Lucknow, the deponent, do hereby
solemnly affirm and state on oath as
under:

1. That the petitioner is a very
old Muslim pardanasheen lady, as
such
authorized
the
deponent
as
Pairokar of the petitioner to swear this
affidavit on her behalf, as such, he is
fully conversant with the facts and of
the case and those deposed hereunder.

2. That the contents of 1 to 30
paragraph of the accompanying writ
petition are true to my knowledge,
while those of paras 31 are believed by
me to be true on the basis of legal
advice.

3. That the annexures 1 to 16
the present petition are true copies of
their originals duly compared."

14. Thus, this Court is prima
facie again satisfied that the statement
as given by Sri Aditya Mishra before
the Court is not inspiring at all and
appears to be motivated.

15. This conduct, statement of
Sri Aditya Mishra is to be seen in
context of the statement given by Smt.
Shams Kazmi who categorically denies
knowing Sri Aditya Mishra or having
seen him prior to today i.e. 20.05.2022.

16. Sri Aditya Mishra also could
not bring before the Court any document
of authorization nor did he have the
courage to bring the Will which is said to
have been executed in his favour by late
Sri Nawab Kazim Ali Khan. Especially,
when this Court in its order dated
12.05.2022 had clearly directed that Sri
Mishra shall also carry the authority or
power of attorney on the basis of which
the petition has been filed and as per his
own statement, he states that he has a Will
in his favour which gave him the
authority, yet he did not produce the same
or carry it with him.

17. The affidavit which has been
filed and is reproduced hereinabove states
that the contents of the petition which has
been filed are true to his personal
knowledge. He has never been authorised
nor has been conducting the proceedings
before any of the Court either on behalf of
Nawab Kazim Ali Khan and thereafter
upon his death on behalf of Smt. Shams
Kazmi. Sri Kazim Ali Khan is reported to
have died on 06.05.2021 and Smt. Shams
Kazmi has been substituted in his place in
the proceedings which emanate from the
Court of SDO, Sarojini Nagar, Lucknow.
Thus, there could be no reason, when he
had not been authorized nor appearing in
any of the proceedings, yet how could he
swear the affidavit on his personal
knowledge which also prima facie does
not inspire confidence.

18. Noticing the aforesaid, the
Court takes strong exception to the
manner in which an attempt has been
made to file and introduce false affidavits
and pleadings before this Court and a
petition is sought to be filed in the name of
Smt. Shams Kazmi who did not authorize
8 All. Aditya Mishra Vs. State of U.P. & Anr.
249
Sri Aditya Mishra to file the same. The act
prima facie amounts to filing false
affidavits which not only amounts to
polluting the pure stream of justice but
also amounts to committing criminal
contempt, apart from the fact makes a
person susceptible to a prosecution in
terms of Section 195 & Section 340
Cr.P.C.

19. The Court notices the dictum
of the Apex Court in the case of
Dhananjay Sharma Vs. State of Haryana
and Others 1995 (3) SCC 757; Dalip
Singh Vs. State of Uttar Pradesh and
Others 2010 (2) SCC 114; ABCD Vs.
Union of India, 2020 (2) SCC 52 and
wherein the issue of filing false affidavit
and polluting the stream of justice has
been considered in detail.

20. In view of the aforesaid, the
Court is prima facie satisfied that the matter
requires action and directs the Senior
Registrar of this Court to do the needful to
launch a prosecution against Sri Aditya
Mishra, Son of Jagat Narain Mishra, R/o C367, Vishesh Khand, Gomti Nagar, Lucknow
before the Competent Court under Section
195 Cr.P.C. and 340 Cr.P.C.

21. Let this matter be placed
before the Court on 04th July, 2022, as
fresh on which date the Senior Registrar of
this Court shall inform and place the action
taken report.

22. Since the instant petition has
not been filed by Smt. Shams Kazmi and for
the reasons aforesaid, cannot be treated to
be a petition on her behalf, therefore, this
petition shall stand dismissed, however,
this dismissal shall not come in the way of
Smt. Shams Kazmi, in case if she genuinely
wishes to challenge order impugned in this
very petition.

Order Date :- 20.5.2022

Asheesh

After the order was passed
but before it could be signed after the lunch
recess,
Mr.
Akhilesh
Kalra,
learned
counsel appearing on behalf of Sri Aditya
Mishra as petitioner in the instant case also
appeared before the Court and stated that
before signing the order, he may be heard
for 10 minutes, he was granted his
audience where he made a feeble attempt to
explain the filing of the petition by entering
into merits of the controversy. After
hearing him he was informed that the order
passed by the Court prior to lunch still
stands."

 (emphasis supplied)

4. In compliance with the order dated
20.05.2022 passed in Writ B No.251 of
2022,
aforesaid,
a
Complaint
Case
No.58823 of 2022 "State of U.P. through
Senior Registrar vs. Aditya Mishra" came
to be lodged against the applicant.

5. The foremost contention of learned
counsel for the applicant is that neither
complainant nor witnesses in support of
complainant's version were examined by
the learned trial Court, therefore, the
impugned
summoning
order
dated
01.07.2022 passed in Complaint Case
No.58823 of 2022 including the entire
proceedings of the aforesaid complaint case
is vitiated.

6. It is submitted by learned counsel
for the applicant that the applicant is
innocent against whom the aforesaid
criminal complaint came to be lodged due
to
misunderstanding.
His
further
submission is that the applicant was not
afforded any opportunity of showing cause
against
him
while
the
order
dated
20.05.2022 was passed by a Co-ordinate
Bench of this Court in Writ B No.251 of
250 INDIAN LAW REPORTS ALLAHABAD SERIES
2022 which ultimately led to filing of
Complaint Case No.58823 of 2022.

7. It is also submitted by learned
counsel for the applicant that keeping in
view the facts and circumstances of the
case, the offences under Sections 193, 196,
200, 209, 466, 467 & 468 I.P.C. read with
Section 340/195 Cr.P.C. are not at all made
out against the applicant because of
conspicuous absence of ingredients which
constitute aforesaid offences. He has, thus,
submitted that the proceedings of instant
complaint case is nothing but a malicious
prosecution of the applicant as well as an
abuse of process of the Court.

8. Per contra, Sri Alok Saran, learned
A.G.A. for the State and Sri Gaurav
Mehrotra, learned counsel for the opposite
party
no.2
vehemently
opposed
the
aforesaid submissions advanced by learned
counsel for the applicant. They have
submitted that the facts which led to filing
of instant complaint constitute offences
under Sections 193, 196, 200, 209, 466,
467 & 468 I.P.C. read with Section
340/195
Cr.P.C..
The
applicant
was
afforded reasonable opportunity to explain
his conduct by a Co-ordinate Bench of this
Court while passing the order dated
20.05.2022 in Writ B No.251 of 2022.

9. They have also submitted that the
instant complaint filed by the complainant
in his official capacity, therefore, recording
of his statement in support of complaint is
not a condition precedent for summoning
the applicant to face trial.

10. They have also submitted that the
learned trial Court has summoned the
applicant to face trial under Sections 193,
196, 200, 209, 466, 467 & 468 I.P.C. read
with Section 340/195 Cr.P.C. vide order
dated 01.07.2022. The said order can be
assailed by filing criminal revision by the
applicant, therefore, by circumventing the
statutory remedy available to the applicant,
the relief prayed for cannot be granted.

11. Section 200 Cr.P.C. is quoted
herein below :

"200.
Examination
of
complainant.
A
Magistrate
taking
cognizance of an offence on complaint
shall examine upon oath the complainant
and the witnesses present, if any, and the
substance of such examination shall be
reduced to writing and shall be signed by
the complainant and the witnesses, and
also by the Magistrate:

Provided
that,
when
the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses -

(a) if a public servant acting or-
purporting to act in the discharge of his
official duties or a Court has made the
complaint; or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under section 192:

Provided further that if the
Magistrate ............"

12. In view of the provisions
contained in proviso (a) to the Section 200
Cr.P.C., the contention of learned counsel
for the applicant is to the effect that the
proceedings of Complaint Case No.58823
of 2022 is vitiated, in want of non
examination
of
complaint
or
other
witnesses is wholly misconceived.

13. Hon'ble the Apex Court in
Deputy Chief Controller of Imports and
Exports v. Roshanlal Agarwal, reported
in AIR 2003 SC 1900 has held that once a
8 All. Aditya Mishra Vs. State of U.P. & Anr.
251
complaint is filed by a public servant in
discharge of his official duty, in view of
proviso (a) to Section 200 Cr.P.C., the
Magistrate is fully justified in taking the
cognizance
of
the
offences
without
recording the statement of the complainant.

14. Hon'ble the Apex Court in Nupur
Talwar
v.
Central
Bureau
of
Investigation and another, reported in
(2012) 11 SCC 465 has held as under :-

"39.
The
same
issue
was
examined by this Court in Jagdish Ram v.
State of Rajasthan [(2004) 4 SCC 432 :
2004 SCC (Cri) 1294] wherein this Court
held as under: (SCC p. 436, para 10)

"10. The contention urged is that
though the trial court was directed to
consider the entire material on record
including the final report before deciding
whether the process should be issued
against the appellant or not, yet the entire
material was not considered. From perusal
of order passed by the Magistrate it cannot
be said that the entire material was not
taken into consideration. The order passed
by the Magistrate taking cognizance is a
well-written order. The order not only
refers to the statements recorded by the
police during investigation which led to the
filing of final report by the police and the
statements of witnesses recorded by the
Magistrate under Sections 200 and 202 of
the Code but also sets out with clarity the
principles required to be kept in mind at
the stage of taking cognizance and
reaching a prima facie view. At this stage,
the Magistrate had only to decide whether
sufficient ground exists or not for further
proceeding in the matter. It is well settled
that notwithstanding the opinion of the
police, a Magistrate is empowered to take
cognizance if the material on record makes
out a case for the said purpose. The
investigation is the exclusive domain of the
police. The taking of cognizance of the
offence is an area exclusively within the
domain of a Magistrate. At this stage, the
Magistrate has to be satisfied whether
there is sufficient ground for proceeding
and not whether there is sufficient ground
for conviction. Whether the evidence is
adequate for supporting the conviction, can
be determined only at the trial and not at
the stage of inquiry. At the stage of issuing
the process to the accused, the Magistrate
is not required to record reasons. (Chief
Controller of Imports & Exports v.
Roshanlal Agarwal [(2003) 4 SCC 139 :
2003 SCC (Cri) 788] .)"

(emphasis supplied)

All
along
having
made
a
reference to the words "there is sufficient
ground to proceed" it has been held by this
Court that for the purpose of issuing
process, all that the court concerned has to
determine is: whether the material placed
before it "is sufficient for proceeding
against the accused"? The observations
recorded by this Court extracted above,
further enunciate that the term "sufficient
to proceed" is different and distinct from
the term "sufficient to prove and establish
guilt".

15. Thus, so far as the contention of
learned counsel for the applicant to the
effect that the complaint does not disclose
ingredients constituting the offences under
Sections 193, 196, 200, 209, 466, 467, 468
I.P.C. read with Section 340/195 Cr.P.C. is
concerned, it would be apposite to refer to
the judgment of Hon'ble the Apex Court
rendered in State of Andhra Pradesh v.
Gourieshetty Mahesh, reported in (2010)
6 SCC 588 wherein it has been held that
while exercising jurisdiction under Section
482 of Cr.P.C., the Court would not
ordinarily embark upon an enquiry into
252 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the evidence is reliable or not or
whether there is reasonable possibility that
the accusation would not be sustained.

16. A Three Judges Bench of Hon'ble
Apex Court in Municipal Corporation of
Delhi v. Ram Kishan Rohtagi and
Others, reported in (1983) 1 SCC 1 has
held as under :

"6. It may be noticed that Section
482 of the present Code is the ad verbatim
copy of Section 561-A of the old Code. This
provision confers a separate and independent
power on the High Court alone to pass
orders ex debito justitiae in cases where
grave and substantial injustice has been done
or where the process of the court has been
seriously abused. It is not merely a revisional
power meant to be exercised against the
orders passed by subordinate courts. It was
under this section that in the old Code, the
High Courts used to quash the proceedings
or expunge uncalled for remarks against
witnesses or other persons or subordinate
courts. Thus, the scope, ambit and range of
Section 561-A (which is now Section 482) is
quite different from the powers conferred by
the present Code under the provisions of
Section 397. It may be that in some cases
there may be overlapping but such cases
would be few and far between. It is well
settled that the inherent powers under
Section 482 of the present Code can be
exercised only when no other remedy is
available to the litigant and not where a
specific remedy is provided by the statute.
Further, the power being an extraordinary
one, it has to be exercised sparingly. If these
considerations are kept in mind, there will
be no inconsistency between Sections 482
and 397(2) of the present Code.

7. The limits of the power under
Section 482 were clearly defined by this
Court in Raj Kapoor v. State [(1980) 1
SCC 43 : 1980 SCC (Cri) 72] where
Krishna Iyer, J. observed as follows: [SCC
para 10, p. 47: SCC (Cri) p. 76]

"Even so, a general principle
pervades this branch of law when a specific
provision is made: easy resort to inherent
power is not right except under compelling
circumstances.