# Amit Kumar Gaur v. State of U.P. Opp. Party Counse

- **Citation:** (2015) 2 ILRA 714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-26
- **Case number:** Application U/S 482 No. 10486 of 2015
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-gaur-v-state-of-u-p-opp-party-counse-43286
- **Pages:** 3

## Headnote

Cr.P.C. Section 482-Prayer for quashing
charge-sheet-offence under Section 419,
420,
467,
468
IPC-based
on
compromise-neither verified-nor acted
upon-even after death of complainantneither
charge
can
be
quashed-nor
interference with proceeding requiredapplication rejected.
Held: Para-7
Considering
all
the
facts
and
circumstances, at this stage it cannot be
said that no offence is made out against
the applicants. All the submissions made
at the bar relate to the disputed
questions of fact, which cannot be
adjudicated upon by this Court under
Section 482 Cr.P.C.
Case Law discussed:
A.I.R. 1960 S.C. 866; 1992 SCC (Cr.) 426;
1992 SCC (Cr.) 192; 2005 SCC (Cr.) 283;
(2012) 10 SCC 303; 2004 (57) ALR 290; 2009
(3) ADJ 322 (SC)

## Text

714
 INDIAN LAW REPORTS ALLAHABAD SERIES
already
available
at
Varanasi
and,
therefore, the question of any long
journey
being
undertaken
by
the
petitioner at this stage affecting his rights
does not arise. To the contrary at
Muzaffarnagar his rival gang is also
lodged in the same Jail which itself is an
impending danger. Thirdly, the question
of engaging a Counsel of his choice at this
stage cannot be an impediment and would
not violate any of his fundamental rights
inasmuch as the petitioner is not being
prohibited from engaging any Counsel of
his choice. The transfer to a far off Jail
can also be countenanced with the fact
that the district of Varanasi itself has a
large number of lawyers practising on the
criminal side, who can cater to and give
proper advice in such a case. After all
whenever a litigant enters the portals of a
Court, he has to opt and choose a lawyer
as it cannot be supposed that all litigants
have retainer lawyers from before. The
choice of lawyers does not get limited nor
does their engagement get prohibited. The
petitioner is well within the State of U.P.
This argument even otherwise would not
be available to the petitioner inasmuch as
the learned Counsel have time and again
stated that they do not oppose the transfer
of the petitioner to any nearby district.
Thus, this plea also does not in any way
help the petitioner in assailing the
impugned order as he would still have to
engage a lawyer whenever required.
20. Consequently, the shifting of the
petitioner is in his own interest and for the
time being does not prejudice his cause
occasioning any miscarriage of justice or
failure of justice. The order passed by the
Magistrate, therefore, has to be upheld.
21. The issue of interference with
such orders has also been dealt with by a
Division Bench in the case of State of
U.P. through Principal Secretary (Prison),
U.P., Lucknow Vs. Fast Track Court
No.2, Maharajganj, and others, 2008 (63)
ACC 317, that has followed the ratio in
the case of Kalyan Chandra Sarkar Vs.
Rajesh Ranjan alias Pappu Yadav and
another, (2005) 3 SCC 284.
22. It goes without saying that if and
when any necessity arises or in such
circumstances exists that may indicate the
re-transfer of the petitioner from one Jail
to another, it would be open to the
competent authority to exercise such
powers in accordance with law which
may be necessary on the basis of material
on record.
23. In view of the aforesaid reasons
and the circumstances of the case, we do
not find any fundamental rights of the
petitioner being violated so as to cause
interference inasmuch as the Court had
applied it's mind fairly and objectively
and after giving an opportunity to the
petitioner.
Paragraph
No.35
of
the
judgment in the case of State of
Maharashtra and others Vs. Saeed Sohail
Sheikh and others (supra) is the ratio of
the said judgment and which appears to
have
been
complied
with
by
the
Magistrate while passing the order which
has now taken the shape
of the
Government
Order
dated
26.2.2015
whereupon
the
petitioner
has
been
transferred to Varanasi.
24. Consequently, there is no merit
in the writ petition. The writ petition is
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2015
2 All] Amit Kumar Gaur Vs. State of U.P.
715
BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Application U/S 482 No. 10486 of 2015
Amit Kumar Gaur
 ...Applicant
Versus
State of U.P.
...Opp. Party
Counsel for the Applicant:
Sri P. N. Dwivedi
Counsel for the Opp. Party:
A.G.A.
Cr.P.C. Section 482-Prayer for quashing
charge-sheet-offence under Section 419,
420,
467,
468
IPC-based
on
compromise-neither verified-nor acted
upon-even after death of complainantneither
charge
can
be
quashed-nor
interference with proceeding requiredapplication rejected.
Held: Para-7
Considering
all
the
facts
and
circumstances, at this stage it cannot be
said that no offence is made out against
the applicants. All the submissions made
at the bar relate to the disputed
questions of fact, which cannot be
adjudicated upon by this Court under
Section 482 Cr.P.C.
Case Law discussed:
A.I.R. 1960 S.C. 866; 1992 SCC (Cr.) 426;
1992 SCC (Cr.) 192; 2005 SCC (Cr.) 283;
(2012) 10 SCC 303; 2004 (57) ALR 290; 2009
(3) ADJ 322 (SC)
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)
1. Heard learned counsel for the
applicant and learned AGA for the State.
2. This application under Section
482 Cr.P.C. has been filed for quashing
the
impugned
charge-sheet
dated
29.12.2005 as well as entire proceedings
of Criminal Case No. 3354 of 2006, State
Vs. Rajesh Pandit arising out of Case
Crime No. 300 of 2005, under Sections
420, 467, 468, 469, 471 IPC, Police
Station-Sadar
Bazar,
District-Mathura
pending in the court of Additional Chief
Judicial
Magistrate,
Court
No.
1,
Mathura.
3. Learned counsel for the applicant
submitted that the applicant is shown only
as a marginal witness in the disputed sale
deed and he is not a beneficiary of the
sale deed. Moreover, the first informant
namely Leela Bihari Das (now deceased)
had filed an affidavit before the Chief
Judicial Magistrate, Mathura in the same
case crime number to the effect that being
misguided by his neighbours, he had
lodged the aforesaid F.I.R. The accused
persons had never cheated him and had
not committed any forgery. The parties
have entered into a compromise and the
informant does not want to proceed in the
present criminal case any further.
4. On the aforesaid grounds learned
counsel has made submission to quash the
charge-sheet in the aforesaid case crime
number.
5.
Learned AGA has raised a
preliminary objection that the charge-sheet
was filed in the year 2005 on which the
cognizance was taken in the year 2006. After
expiry of such a long period the applicant has
come before this Court for quashing of the
charge-sheet that too on the basis of an
affidavit of a person (first informant) who is
dead and there is no one to inform the court
about the actual position.
6. Learned A.G.A. has further
contended that as all the offences in
which the applicant is charge-sheeted are
not compoundable so the charge-sheet
716
 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be quashed on the ground that the
parties have settled their dispute in terms
of the compromise. Moreover as the
compromise (Annexure No. 6) has not
been been duly proved by the parties in
the court hence it is just like a waste paper
and no reliance can be placed upon it.
7.
Considering all the facts and
circumstances, at this stage it cannot be said
that no offence is made out against the
applicants. All the submissions made at the
bar relate to the disputed questions of fact,
which cannot be adjudicated upon by this
Court under Section 482 Cr.P.C. At this
stage only prima facie case is to be seen in
the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of
Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)
426, State of Bihar Vs. P.P.Sharma, 1992
SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005 SCC
(Cr.) 283. Although criminal proceedings
may be quashed under inherent jurisdiction if
the parties have compromised even in the
non-compoundable cases as per the law laid
down by the Apex Court in Gian Singh Vs.
State of Punjab (2012) 10 SCC 303, and also
in Narinder Singh and others Vs. State of
Punjab Criminal Appeal No. 686 of 2014
decided on 27th March 2014, in which
Honble Supreme Court has quashed the
criminal proceedings involving section 307
of IPC. However, in the present case, as the
complainant has died and the compromise
deed filed by the applicant as Annexure No.
6 does not reflect that it has ever been duly
verified and accepted by the court concerned,
no reliance can be placed on it for quashing
of the charge-sheet.
8. Hence, the prayer for quashing
the entire proceeding as well as charge
sheet submitted in the aforesaid case is
refused.
9. However, it is directed that in
case the applicant appears and surrenders
before the court below within 30 days
from today and applies for bail, his prayer
for bail shall be considered and decided in
view of the settled law laid by this Court
in the case of Amrawati and another Vs.
State of U.P. reported in 2004 (57) ALR
290 as well as judgement passed by
Hon'ble Apex Court reported in 2009 (3)
ADJ 322 (SC) Lal Kamlendra Pratap
Singh Vs. State of U.P.
10. It is made clear that the applicant
will not be granted any further time by
this Court for surrendering before the
Court below as directed above.
11With the aforesaid directions, this
application is finally disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.
C.M.W.P. No. 14897 of 2015
Ruchi Kashyap
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Mahipal Singh
Counsel for the Respondents:
C.S.C., Sri M.C. Chaturvedi, Sri S.C.
Dwivedi
Constitution of India. Art.-21-petitioner
seeking protection from her father on