# Ali Mohammad Hussain v. State of U.P. and another

- **Citation:** (2009) 3 ILRA 791
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-07
- **Case number:** Criminal Misc. Application No. 22022 of 2009
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-mohammad-hussain-v-state-of-u-p-and-another-41462
- **Pages:** 4

## Headnote

Code of Criminal Procedure Section-202Summon
order
in
complaint
casewithout
examining
witnesses
under
Section 202 of the Code-examining
witnesses
is
sole
discretion
and
satisfaction
of
Magistrate-No
requirement of examining the witness as
trail of Case-held-provision of Section
202
not
violated-order
passed
by
Magistrate
justified-However
considering the growing age- direction
for interim bail issued.

Held: Para 5

If there was material and magistrate
after satisfaction issued summons there
is no illegality in proceeding. At this
stage the evidence will not be examined
like trial. Only this much has to be
considered whether prima facie offence
is disclosed or not. Hence there is no
violation of provision of Section 202
Cr.P.C. The offence was not exclusively
triable by Session Judge. Hence unless it
is found by the magistrate that the
offence
was
exclusively
triable
by
Magistrate, it is not required to examine
all the witnesses.
Case law discussed:
1989 AWC, page 604, 2004(57) ALR 390,
2009(2) Crime 4 SC.

## Text

3 All] Ali Mohammad Hussain V. State of U.P. and another

791
enquiry to be made in the matter. The
petitioner did not suffer any prejudice at
all and was rather given a show cause
notice and was associated with the
preliminary enquiry held by the Addl.
District Magistrate. The rules mandate
that preliminary enquiry should be held
and that there should be sufficient
material to initiate final enquiry.

16. In Dayandeo Ganpat Jadhav
Vs. Madhav Vitthal Bhasker, (2005) 8
SCC 340 the Supreme Court after
noticing the judgment in Rama Chandra
Keshav Adke (Supra) observed in para 31
of the report that if the requisite procedure
is followed by informing the person of his
rights and that he was unwilling to
purchase the land and surrender his
tenancy, the procedure was followed. In
substance the Supreme Court held that
where the person was fully aware of his
rights
and
was
given
repeated
opportunities to purchase the land and
surrender his tenancy the rules were
substantially followed. The administrative
law has developed the doctrine of
'prejudice' to override the principle of
strict
and
blind
adherence
to
the
procedure in the rules. If the substantial
compliance of the rules is established and
no prejudice is caused to the person, the
administrative action cannot be declared
to be invalid merely on the ground that
the rules were not strictly followed.

17. In Mukesh Rajput Vs. State of
U.P. & Ors., 2003 (4) AWC 3289 this
Court has held that where the petitioner
was provided all the documents in the
preliminary
enquiry
and
had
full
knowledge of the enquiry proceedings,
the
decision
taken
by
the
State
Government on the material collected on
the allegations, which are serious in
nature would not require interference of
the Court.

18. We have gone through the
enquiry report dated 25.7.2008 and the
reasons given by the State Government
for initiating the regular enqiry and to
suspend the financial and administrative
powers of the petitioner. We do not find
that the State Government has committed
any error on facts or in law in exercise of
its discretion. The petitioner was not
making payments for development works
even after the supply of material. The
labourers employed in the schemes were
not paid for almost three months. It was
prima facie found that the petitioner was
exercising the pressure for making
estimates of fresh projects and for making
payments of the bricks, the quality of
which was doubtful, supplied by her
husband's brick field and that her husband
had received the payments by the cheques
signed by her on behalf of the firm. The
impugned order does not require any
interference of the Court.

19. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2009

BEFORE
THE ARVIND KUMAR TRIPATHI, J.

Criminal Misc. Application No. 22022 of
2009

Ali Mohammad Hussain
...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Jai Singh Yadav
792 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure Section-202Summon
order
in
complaint
casewithout
examining
witnesses
under
Section 202 of the Code-examining
witnesses
is
sole
discretion
and
satisfaction
of
Magistrate-No
requirement of examining the witness as
trail of Case-held-provision of Section
202
not
violated-order
passed
by
Magistrate
justified-However
considering the growing age- direction
for interim bail issued.

Held: Para 5

If there was material and magistrate
after satisfaction issued summons there
is no illegality in proceeding. At this
stage the evidence will not be examined
like trial. Only this much has to be
considered whether prima facie offence
is disclosed or not. Hence there is no
violation of provision of Section 202
Cr.P.C. The offence was not exclusively
triable by Session Judge. Hence unless it
is found by the magistrate that the
offence
was
exclusively
triable
by
Magistrate, it is not required to examine
all the witnesses.
Case law discussed:
1989 AWC, page 604, 2004(57) ALR 390,
2009(2) Crime 4 SC.

(Delivered by Hon'ble Arvind Kumar Tripathi, J.)

1. This Criminal Misc. Application
under Section 482 Cr.P.C. has been filed
with the prayer to allow this petition and
to quash the proceeding in complaint case
no. 3890 of 2000, under Sections
420,120B IPC, P.S. Brahmpuri, DistrictMeerut.

2. Heard learned counsel for the
applicant and learned A.G.A. and perused
the record.
3. Learned counsel for the applicant
submitted that the list of witnesses was
given but the witnesses were required to be
examined under section 202 Cr.P.C. It was
mandatory under Section 202(b) Cr.P.C..
He also contended that, it is a business
transaction and no offence is made out
under Section 420 and 120B IPC. There
was no evidence regarding forgery and
conspiracy hence the summoning order as
well as the entire proceeding is liable to be
quashed. He has relied upon the judgment
of the Single Bench of this Court in case of
R.K. Kothari and others Vs. Messrs Joshi
Pharma and another reported in 1989 AWC,
page 604. In the aforesaid case, it was held
that if the allegation simply disclose a civil
liability and do not constitute any offence
and there it would be no criminal liability. It
would not be criminal breach of trust unless
there is some mensrea of criminal intention.

Second case he relied is case of
Mohammad Umar and others Vs. State of
U.P. and another reported in the 2006 (3)
Allahabad Law Journal 281. In the
aforesaid case, it was held the Magistrate
did not follow the procedure laid down
under Section 202 Cr.P.C. and did not
record any statement under Section 202
Cr.P.C. Only the statement was recorded
of the complaint under Section 200
Cr.P.C. Hence non observation of Section
202 Cr.P.C. by the magistrate renders
summoning order illegal. The aforesaid
case was under section 364 IPC triable by
the Session Court. In that case the
prosecution was required to examine all
the witnesses under Section 202(2)
Cr.P.C.
proviso.
Hence,
it
is
not
applicable in the present case.

4. He also placed reliance on the
case of Mohammad Atullah Vs. Ram
Saran Mahto, reported in A.I.R. 1981
3 All] Ali Mohammad Hussain V. State of U.P. and another

793
Supreme Court, page 1155. In the
aforesaid case, it was held that the
magistrate directed for investigating in
complaint case under Section 202 Cr.P.C.
The investigation report did not disclose
any additional material, hence it was held
that taking of the cognizance and issuing
process was not proper. The aforesaid
case is also not applicable. In the present
case there was no direction under Section
202 Cr.P.C. for inquiry or investigation
by the police.

5. Under the provision of Section
202(1)(b), when the complaint was filed,
as per provision unless the complainant
and the witness present, if any, have been
examined under Section 200 Cr.P.C., the
court will not proceed against the
accused. In the present case the applicant
appeared before the court, but witnesses
were not produced hence they were not
examined by the magistrate. Merely the
witness were mentioned in the complaint,
they will not be examined. Hence, if
witnesses were not present, there was no
question to examine unless the magistrate
finds it necessary. Normally the statement
of witnesses are recorded under Section
202 Cr.P.C. before issuing summons, but
this is satisfaction of the magistrate. If
there was material and magistrate after
satisfaction issued summons there is no
illegality in proceeding. At this stage the
evidence will not be examined like trial.
Only this much has to be considered
whether prima facie offence is disclosed
or not. Hence there is no violation of
provision of Section 202 Cr.P.C. The
offence was not exclusively triable by
Session Judge. Hence unless it is found by
the magistrate that the offence was
exclusively triable by Magistrate, it is not
required to examine all the witnesses.

6. In view of the fact it appears, that
the goods were supplied by the applicant
and as per agreement payment was to be
made within 30 days, but even a single
paisa was not paid. Hence it appears that
since very inception there was intention of
cheating hence prima facie it cannot be
said that the there was no intention of
cheating at all or it is not a criminal
breach of trust. However, the aforesaid
matter requires to be decided, on the basis
of evidence produced before the trial
court. At this stage, I am not inclined to
interfere with the proceeding.

7. The alternative prayer is for
consideration of the bail application,
preferably, on same day because the
applicant is residing in Kerala and is aged
about 80 years.

8. In view of the fact and
circumstances of the it is provided that if
applicant appears and surrenders before
the court below and move bail application
within thirty days from today, then the
same shall be considered, as expeditiously
as possible, in accordance with law, in
view of the law laid down by Full Bench
of this Court in the case of Amrawati and
another Vs. State of U.P. reported in
2004(57) ALR 390 and affirmed by
Hon'ble Supreme Court in Lal Kamlendra
Pratap Singh Vs. State of U.P. and others
2009(2) Crime 4 SC after affording the
opportunity. If the bail application can not
be decided, due to any reason, he may be
released on interim bail as observed in the
aforesaid judgment.

With the aforesaid observation this
application is finally disposed off.
---------
794 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No.1241 of 2009

Vipin Kumar

...Appellant

Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri A.K. Pandey
Sri K.S. Yadav

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Dismissal
Order-passed on ground of giving false
declaration
in
application-contention
regarding acquittal in Criminal Casesdismissal
Order
bad-held-wrong
declaration itself entails cancellation of
appointment.

Held: Para 5

We do not find any substance in the
submission of Mr. Pandey. The fact of the
matter is that he had made a wrong
declaration. The law in question is well
settled that wrong declaration made,
entails cancellation of the appointment.
Reference in this connection can be
made to a decision of the Hon'ble
Supreme Court in the case of Kendriya
Vidyalaya Sangathan and others Vs. Ram
Ratan Yadav (2003) 3 Supreme Court
Cases 437.
Case law discussed:
(2003) 3 Supreme Court Cases 437,
2006 (4) ESC 2625 (All),
2006 (5) ALJ 781.

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. Writ petitioner - appellant,
aggrieved by an order dated 09.07.2009
passed in Civil Misc. Writ Petition
No.33672 of 2009, has preferred this
appeal under Rule 5 Chapter VIII of the
Allahabad High Court Rules, 1952.

2. Writ petitioner - appellant was
recruited
as
a
Constable.
As
per
requirement, the appellant had to furnish
information
of
his
involvement
in
criminal cases and accordingly he gave a
declaration that he is not involved in any
criminal case. On verification, it was
found that he was involved in two
criminal cases and accordingly by order
dated
7th
of
August,
2007
his
appointment was cancelled.

3. He assailed the aforesaid order in
the writ application, which has been
dismissed by the impugned order.

4. Mr. A.K. Pandey appearing on
behalf of the appellant submits that the
appellant having been acquitted in those
criminal cases, his appointment ought not
to have been cancelled.

5. We do not find any substance in
the submission of Mr. Pandey. The fact of
the matter is that he had made a wrong
declaration. The law in question is well
settled that wrong declaration made,
entails cancellation of the appointment.
Reference in this connection can be made
to a decision of the Hon'ble Supreme
Court in the case of Kendriya Vidyalaya
Sangathan and others Vs. Ram Ratan
Yadav (2003) 3 Supreme Court Cases
437.