# Afsari Akbar Qayyum & Ors v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 540
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-29
- **Case number:** Application U/S 482 No. 21400 of 2022
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/afsari-akbar-qayyum-ors-v-state-of-u-p-anr-47752
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 420, 467, 468, 471 & 120B - The Code of criminal procedure, 1973 -
Section 482 - Inherent power - Section
391 - appellate court is empowered and
can call additional evidence , Section 400
-
Additional
Sessions
Judge
has
empowered to exercise all the powers of
Sessions Judge under Chapter XXX thus,
the Additional Sessions Judge can call
additional evidence , Section 401 - High
Court, in its discretion, exercise any of the
powers conferred on a court of appeal by
Section 386, 389, 390 and 391 - once the
High Court is empowered to call the
additional evidence, while exercising its
revisional power, then Sessions Judge
under
Section
399(1)
of
Cr.P.C.
by
operation of law, is also empowered to
call an additional evidence.(Para -18,19 )

Applicant filed an application under Section
245(2) of Cr.P.C. - dismissed - by Chief Judicial
Magistrate - aggrieved with order - Revision filed
by applicants - prayer - certain additional
documents and evidence, which may be
permitted to file - same may be taken on record
for the proper adjudication of the matter -
revision rejected by Additional Sessions Judge -
ground - Sessions Judge can exercise powers
under Section 399 of Cr.P.C. - which is
analogous to Section 401 of Cr.P.C., in an event
where the Sessions Judge himself has called for
the record.(Para - 3,4,12)

HELD:-Power of Sessions Judge under Section
399 of Cr.P.C., vest in toto, in an Additional
Sessions Judge, when he exercises the powers
10 All. Afsari Akbar Qayyum & Ors. Vs. State of U.P. & Anr.
541
under Section 400 of Cr.P.C. Order passed by
Additional Sessions Judge in Criminal Revision is
erroneous and hence not sustainable. Order set
aside. Matter remitted back. (Para - 19, 20,
21,22)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:
Vinod Kumar Vs Smt. Mohrawati , 1990 Crl. LJ
2018

## Text

540 INDIAN LAW REPORTS ALLAHABAD SERIES
of justice. Whether a complaint discloses
criminal offence or not depends on the
nature of the allegation and whether the
essential ingredients of a criminal offence
are present or not has to be judged by the
High Court. There can be no doubt that a
complaint disclosing civil transactions may
also have a criminal texture. The High
Court has, however, to see whether the
dispute of a civil nature has been given
colour of criminal offence. In such a
situation, the High Court should not
hesitate to quash the criminal proceedings
as held by this Court in Paramjeet Batra
(supra) extracted above.""

(emphasis supplied)

14. The outcome of the above
discussion is that criminal proceedings
initiated against the applicants are a glaring
example of ''abuse of process of law' where
a dispute of civil nature has been given
colour of criminal offence and further
prima facie essential ingredients of alleged
offence are not present and therefore, the
criminal
proceedings
itself
became
vexatious and oppressive.

15. In view of above, the proceedings
of Case No. 122095 of 2021 (State vs.
Akhilesh Kumar Gupta and another) in
Case Crime No. 0356 of 2020 u/s 420, 467,
468, 471, 120-B and 384 I.P.C., Police
Station- Kotwali, District- Kanpur Nagar,
pending in the Court of learned Chief
Metropolitan Magistrate, Kanpur Nagar are
hereby quashed.

16. The application stands allowed.
----------
(2022) 10 ILRA 540
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2022

BEFORE
THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 21400 of 2022

Afsari Akbar Qayyum & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ambreen Masroor,Sr. Advocate

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 420, 467, 468, 471 & 120B - The Code of criminal procedure, 1973 -
Section 482 - Inherent power - Section
391 - appellate court is empowered and
can call additional evidence , Section 400
-
Additional
Sessions
Judge
has
empowered to exercise all the powers of
Sessions Judge under Chapter XXX thus,
the Additional Sessions Judge can call
additional evidence , Section 401 - High
Court, in its discretion, exercise any of the
powers conferred on a court of appeal by
Section 386, 389, 390 and 391 - once the
High Court is empowered to call the
additional evidence, while exercising its
revisional power, then Sessions Judge
under
Section
399(1)
of
Cr.P.C.
by
operation of law, is also empowered to
call an additional evidence.(Para -18,19 )

Applicant filed an application under Section
245(2) of Cr.P.C. - dismissed - by Chief Judicial
Magistrate - aggrieved with order - Revision filed
by applicants - prayer - certain additional
documents and evidence, which may be
permitted to file - same may be taken on record
for the proper adjudication of the matter -
revision rejected by Additional Sessions Judge -
ground - Sessions Judge can exercise powers
under Section 399 of Cr.P.C. - which is
analogous to Section 401 of Cr.P.C., in an event
where the Sessions Judge himself has called for
the record.(Para - 3,4,12)

HELD:-Power of Sessions Judge under Section
399 of Cr.P.C., vest in toto, in an Additional
Sessions Judge, when he exercises the powers
10 All. Afsari Akbar Qayyum & Ors. Vs. State of U.P. & Anr.
541
under Section 400 of Cr.P.C. Order passed by
Additional Sessions Judge in Criminal Revision is
erroneous and hence not sustainable. Order set
aside. Matter remitted back. (Para - 19, 20,
21,22)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:
Vinod Kumar Vs Smt. Mohrawati , 1990 Crl. LJ
2018

(Delivered by Hon'ble Shree Prakash Singh, J.)

1. Heard learned counsel for the
applicants, learned counsel for the Staterespondent and perused the record.

2.

By
instituting
the
instant
application, a prayer has been made for
quashing of the order dated 18.06.2022
passed by the learned Additional Sessions
Judge,
Court
No.12,
Moradabad
in
Criminal Revision No.94 of 2020 arising
out of Case Crime No.1378 of 2017, under
Section 420, 467, 468, 471, 120-B IPC,
Police
Station-Civil
Lines,
DistrictMoradabad, which is pending in the court
of learned Additional Sessions Judge,
Moradabad.

3. Factual matrix of the case is that,
one of the owner of the property Smt. Ram
Kali Devi sold out her half of the portion
from the land in question to the three
persons namely, Vineet Kishore Jain,
Sitaram and Shiv Autar Agarwal vide
registered sale deed dated 15.03.1990 and
out
of
sale
consideration
amounting
Rs.1,50,000/- Rs.20,000/- was paid at the
time of execution of sale deed and
remaining amount of Rs.1,30,000/- was
agreed to be paid and later on the same was
also paid. After receiving the entire sale
consideration,
Smt.
Ram
Kali
Devi
challenged the said sale deed by way of
filing a Original Suit No.348 of 1991.
Thereafter, written statement was filed on
13.08.1991. The suit was decreed on
13.03.2015, in favour of vendor. Further,
another petition was filed by the applicants
under Article 227 bearing No.5000 of 2018,
which was dismissed by this Court on 18th
July, 2018. The vendee, Vineet Kishore Jain
filed an application under Order IX Rule 13
of C.P.C. for setting aside the ex parte
judgment and decree dated 13.03.2015 and
the aforesaid application was allowed and
the ex parte judgment was recalled vide
order dated 09.01.2022. He submits that an
FIR was lodged on 30.11.2017 by one
Sunita Singhal, under Sections 420, 467,
468, 471, 506 IPC against the present
applicants as the applicants claimed their
right in property in question on the basis of
"Hibanama". The matter was investigated
by the police and charge sheet was filed
and thereafter cognizance was taken by the
court below. The applicant filed an
application under Section 245(2) of Cr.P.C.
which was dismissed vide order dated
2.11.2020 by the Chief Judicial Magistrate
and fixed the date on 18.11.2020 for
framing of charges.

4. Being aggrieved with the order
dated 2.11.2020, the applicants filed,
Revision No.94 of 2020 on 11.11.2020 in
which a prayer was made by the present
applicants that there are certain additional
documents and evidence, which may be
permitted to file and the same may be taken
on record for the proper adjudication of the
matter. The aforesaid revision was rejected
vide order dated 18.06.2022, by Additional
Sessions Judge, Court No. 2, Moradabad
wherein the following findings have been
recorded, which are read as under:-

"उपरोक्त प्रावधािोिं े स्पि होर्ा है चक
माििीय उच्च न्यायालय को द० प्र० िं० धारा
542 INDIAN LAW REPORTS ALLAHABAD SERIES
401 की उपधारा -1 में प्रदत्त शखक्त का प्रयोग
 ेशि न्यायालय द्वारा धारा 399(1) द० प्र० िं०
के अिंर्गार् र्िी चकया जा कर्ा है जब
अचिलेि ेशि न्यायालय िे स्वयिं मिंगवाया हो।"

5. The submissions of the learned
counsel for the applicants are that, the
Additional Sessions Judge can exercise all
the powers of Session Judge, given in
Chapter XXX of the Cr.P.C. in respect with
any case transferred to him by general or
special order of the Sessions Judge.

6. He added that under the provision
of Section 400 of Cr.P.C., it has specifically
been mentioned that an Additional Sessions
Judge shall have and may exercise all the
powers of a Sessions Judge under this
Chapter in respect of any case which may
be transferred to him by or under any
general or special order of the Sessions
Judge. He next submits that under the
mandate of the aforesaid provision, the
Additional Sessions Judge while hearing
the matter in a revision exercised all the
powers
of
Session
Judge
which
is
envisaged under Chapter XXX of Cr.P.C.
which are referred to him by an special or
general order of the Sessions Judge. In
support of his contention he has referred
the judgment of Vinod Kumar Vs. Smt.
Mohrawati reported in 1990 Crl. LJ
2018 and submits that in this matter the
Court has held that the Sessions Judge can
take additional evidence in revision.

7. Placing reliance on the aforesaid
judgment, he added that the Court has very
categorically held that since the learned
Sessions Judge examined the question of
taking the additional evidence in view of
the powers conferred on him by subSection (1) of Section 399 of Cr.P.C. which
is the analogous provisions of Section 401
of Cr.P.C., therefore additional evidence in
revision can very well be taken by the
learned Sessions Judge.

8. He further placed reliance on a
judgment in case of Vishram Singh Vs.
State of U.P. and another reported in
(37326) under Section 482) 2018 and has
referred the ratio of the judgment wherein,
it has been held that Appellate Court if it
thinks fit, can take additional evidence
wherever, it is necessary and shall record
reasons himself or by directing it to the
Magistrate concerned to do so. The relevant
paragraph of the aforesaid judgment reads
as under:-

"Section 399 of Cr.P.C. deals with
Sessions Judge's powers of revision. As per
sub-section (1) of Section 399 Cr.P.C. the
Sessions Judge may exercise all or any of
the powers which may be exercised by the
High Court under sub-section (1) of
Section 401 Cr.P.C. Sub-section (1) of
Section 401 Cr.P.C. confers power upon the
High Court, while acting in revisional
jurisdiction to exercise any of the powers
conferred on a Court of Appeal by Section
391 Cr.P.C. As quoted above in sub-section
(1) of Section 391 Cr.P.C., the Appellate
Court, if it thinks additional evidence to be
necessary, shall record its reason and may
either take such evidence itself, or direct it
to be taken by a Magistrate. A combined
reading of above mentioned provisions of
Code of Criminal Procedure clearly shows
that the power of Sessions Court while
acting in revisional jurisdiction is the same
as that of High Court with regard to taking
additional
evidence
in
revisional
jurisdiction. It also becomes so clear that
the High Court's powers of revision
includes the powers conferred on a Court
of Appeal by Section 391 of Code of
Criminal Procedure which provides to take
10 All. Afsari Akbar Qayyum & Ors. Vs. State of U.P. & Anr.
543
additional evidence while hearing the
appeal. That brings the Court of Session
and the High Court on the same footing so
far as it relates to the power of taking
additional evidence during the course of its
hearing in revision."

9. Referring the aforesaid judgment,
he submits that it has been settled that
learned Sessions Judge under Section 399
of Cr.P.C. is having an analogous powers as
has envisaged under Section 401 of Cr.P.C.
He next submits that in Section 400 of
Cr.P.C. the Additional Sessions Judge has
empowered to exercise all the powers of
Sessions Judge under Chapter XXX thus,
the Additional Sessions Judge can call
additional evidence. Thus, submission is
that the finding recorded by the learned
Additional Sessions Judge, under challenge
in this application, is perverse and
erroneous and is liable to be set aside.

10. On the other hand, learned
counsel appearing for the State submitted
that the order passed by the learned
Additional Sessions Judge is not assailing
any illegality or infirmity and, as such, the
same he is not liable to be interfered.

11. He added that Section 399 (1) of
Cr.P.C. is very clear on this point that
Sessions Judge in the case of any
proceeding where the record of which has
been called by himself can exercise all the
powers as the High Court exercise its
power under Section 401 of Cr.P.C. He
submits that this is not open to the
Additional Sessions Judge for calling
additional evidence as is evident from the
bare perusal of the Section 400 of Cr.P.C.

12. Having heard learned counsel for
the parties and after perusal of records, it
reveals that Additional Sessions Judge
while passing the order dated 18.06.2022
has recorded the finding that Sessions
Judge can exercise the powers under
Section 399 of Cr.P.C. which is analogous
to Section 401 of Cr.P.C., in an event where
the Sessions Judge himself has called for
the record.

13. Before entering into the question
that whether criminal revisional court is
empowered to take additional evidence in
the revisional proceedings or not, the
provisions which attracts i.e., Section 399,
401, 391 of Cr.P.C. are liable to be quoted

"399. Sessions Judge's powers
of revision.

(1) In the case of any proceeding
the record of which has been called for by
himself the Sessions Judge may exercise all
or any of the powers which may be
exercised by the High Court under SubSection (1) of section 401.

(2) Where any proceeding by way of
revision is commenced before a Sessions
Judge under Sub-Section (1), the provisions of
Sub-Sections (2), (3), (4) and (5) of section
401 shall, so far as may be, apply to such
proceeding and references in the said
subsections to the High Court shall be
construed as references to the Sessions Judge.

(3) Where any application for
revision is made by or on behalf of any
person before the Sessions Judge, the
decision of the Sessions Judge thereon in
relation to such person shall be final and no
further proceeding by way of revision at the
instance of such person shall be entertained
by the High Court or any other Court.

14. Above said section deals with the
provisions of regarding power of Sessions
544 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge in revision and the analogous power
as envisaged under Section 401 of Cr.P.C.
in respect with power of revision to the
High Court.

15. The revisional power of High
Court has been envisaged under Section
401 (1) of Cr.P.C.

(1) In the case of any proceeding
the record of which has been called for by
it self or which otherwise comes to its
knowledge, the High Court may, in its
discretion, exercise any of the powers
conferred on a Court of Appeal by sections
386, 389, 390 and 391 or on a Court of
Session by section 307 and, when the
Judges composing the court of revision are
equally divided in opinion, the case shall
be disposed of in the manner provided by
section 392.

(2) No order under this section
shall be made to the prejudice of the
accused or other person unless he has had
an opportunity of being heard either
personally or by pleader in his own
defence.

(3) Nothing in this section shall
be deemed to authorise a High Court to
convert a finding of acquittal into one of
conviction.

(4) Where under this Code an
appeal lies and no appeal is brought, no
proceeding by way if revision shall be
entertained at the instance of the party who
could have appealed.

(5) Where under this Code an
appeal lies but an application for revision
has been made to the High Court by any
person and the High Court is satisfied that
such application was made under the
erroneous belief that no appeal lies thereto
and that it is necessary in the interests of
justice so to do, the High Court may treat
the application for revision as a petition of
appeal and deal with the same accordingly.

16. From bare reading of Section 401
of Cr.P.C. it is evident that High Court may
in its discretion exercise any of the power
conferred on a court of appeal of Section
386, 389, 390, 391 meaning thereby the
High Court while exercising the power
under the aforesaid provision, can call for
additional evidence, if necessary.

Section 391 of Cr.P.C:-

(1) In dealing with any appeal
under this Chapter, the Appellate Court, if
it
thinks
additional
evidence
to
be
necessary, shall record its reasons and may
either take such evidence itself, or direct it
to be taken by a Magistrate, or when the
Appellate Court is a High Court, by a
Court of Session or a Magistrate.

(2)
to
(4)
................................................

17. When this Court examine the
order dated 18.06.2022 passed by the
Additional District and Sessions Judge, it
reveals that court below is conclusive that
the Sessions Judge can exercise the power
under Section 399 (1) which is the
analogous provision to Section 401 (1) of
Cr.P.C. The court below, though is of the
aforesaid view but has erred to consider
that in Section 401 (1) of Cr.P.C., the High
Court is empowered to exercise its
discretion which is conferred upon a court
of appeal, by virtue of Section 386, 389,
390, and 391 of Cr.P.C.
10 All. Rajesh Dayal Vs. State of U.P. & Ors.
545

18. This Court is of considered
opinion that as per the provision of Section
391 of Cr.P.C., the appellate court is
empowered
and
can
call
additional
evidence. Further as per the provisions of
Section 401, the High Court, in its
discretion, exercise any of the powers
conferred on a court of appeal by Section
386, 389, 390 and 391. Thus, once the High
Court is empowered to call the additional
evidence, while exercising its revisional
power, then Sessions Judge under Section
399(1) of Cr.P.C. by operation of law, is
also empowered to call an additional
evidence.

19. So far as the power of Additional
Sessions Judge under Section 400 of
Cr.P.C. is concerned, bare reading reveals
that 'Additional Sessions Judge shall have
exercised all the powers of Sessions Judge'
under chapter XXX of Cr.P.C. Had their
been any intent of the legislature, not to
give the power to Additional Sessions
Judge equivalent to the Sessions Judge,
certainly there would have been overt
provisions, in this section. This Court is of
considered opinion that the power of
Sessions Judge under Section 399 of
Cr.P.C., vest in toto, in an Additional
Sessions Judge, when he exercises the
powers under Section 400 of Cr.P.C.

20. In view of the submissions and
discussions aforesaid, the order dated
18.06.2022
passed
by
the
learned
Additional Sessions Judge, Court No. 12
Moradabad in Criminal Revision No. 94 of
is erroneous and hence is not sustainable.

21. Consequently, the order dated
18.06.2022 in Criminal Revision No. 94 of
2022 is hereby set aside.

22. The matter is remitted back to the
court below to proceed in accordance with
observations made above.

22. The instant application is allowed
accordingly.
----------
(2022) 10 ILRA 545
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 22841 of 2022

Rajesh Dayal ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Radhey Shyam Yadav

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
The
Scheduled
Caste
and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989 - Section 14 - Special Court and
Exclusive Special Court - proviso clause of
Section
14(1)
-
Special
Judge
so
established under the Act is having
jurisdiction to directly take the cognizance
- The Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, 1995 -
Rule 5 - Criminal Law Amendment Act,
1952 - Section 6, 7 and 8 - provisions of
Section 8 (1) of the 1952 Act is akin to the
proviso clause of Section 14(1) of the Act -
special judge so established under the Act
can take cognizance even on private
complaint as there is no specific denial to
that
effect
under
the
Act.
(Para
-
11,12,32,33)