# Anand Kumar Yadav v. State of U.P. & Anr

- **Citation:** (2025) 1 ILRA 323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-16
- **Case number:** Application U/S 482. No. 41426 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-yadav-v-state-of-u-p-anr-52856
- **Pages:** 5

## Headnote

Criminal Law - Pre-conception and Prenatal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994-Section 23though explicit reasons are not required to be
recorded while passing summoning orders- but
satisfaction or opinion of court, regarding prima
facie case must be recorded before issuing
summon -even if the case is filed by a public
servant-no satisfaction was recorded by the
court below-impugned order quashed.

Application allowed. (E-9)

List of Cases cited:

## Text

1 All. Anand Kumar Yadav Vs. State of U.P. & Anr.
323
of the fact that the Arbitrator, i.e. the
Executive Director was appointed as an
Arbitrator.

8. Having heard learned counsel for the
petitioner and learned counsel for the State, we
find that it is not disputed that the petitioner did
not raise any objection with regard to the
appointment of the Executive Director as an
Arbitrator in the case at the very first instance.
Counsel for the petitioner has not been able to
point out as to what prejudice was caused to the
petitioner by the fact that the Executive Director
was appointed as an Arbitrator.

9. The principles underlying in Section 21
of the CPC are to the effect that objection to
jurisdiction, particularly in regard to territorial
or pecuniary jurisdiction, are to be taken at the
earliest possible opportunity and in any case,
before settlement of issues. The law is well
settled on the point that if such objection is not
taken at the earliest, it cannot be allowed at a
subsequent stage.

10. Section 21 of CPC, in fact, gives
statutory recognition to the principle that
objection with regard to jurisdiction can be
waived, and that subsequently, on account of
this waiver, the party concerned would be
precluded from taking any such objection.

11. The general law relating to arbitration
is contained in the Arbitration and Conciliation
Act, 1996, which was enacted to consolidate
and amend the law relating to domestic
arbitration, international commercial arbitration
and enforcement of foreign arbitral awards as
also to define the law relating to conciliation
and for matters connected therewith or
incidental thereto. Section 16 of the Arbitration
and Conciliation Act, 19962 provides for
challenge to the jurisdictional authority of the
Arbitral Tribunal. In terms of sub-section (2)
thereof, a plea that the arbitral tribunal does not
have jurisdiction should be raised not later than
the submission of the defence. If the excess of
jurisdiction crops up during the proceedings, the
objection should be made at that very time. In
any case, objection on the question of
jurisdiction has to be made before the arbitral
tribunal itself, and the arbitral tribunal has the
power to rule on its own jurisdiction.

12. In the instant case, learned counsel for
the petitioner has not been able to point out that
the petitioner had raised any objection with
regard to the competence or the jurisdiction of
the Arbitrator during the course of the
arbitration proceedings. The petitioner, having
participated in the proceedings without any
objection in regard to the jurisdiction or any
perceived bias of the Arbitrator, the same would
dis-entitle the petitioner from raising any such
objection in subsequent proceedings.

13. Under such circumstances, we refrain
from interfering in this case and accordingly,
the writ petition is dismissed.

14. The petitioner may avail such other
legal remedy as may be available to it under
law.
----------
(2025) 1 ILRA 323
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 41426 of 2024

Anand Kumar Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Dhirendra Kumar Srivastava
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
G.A.

Criminal Law - Pre-conception and Prenatal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994-Section 23though explicit reasons are not required to be
recorded while passing summoning orders- but
satisfaction or opinion of court, regarding prima
facie case must be recorded before issuing
summon -even if the case is filed by a public
servant-no satisfaction was recorded by the
court below-impugned order quashed.

Application allowed. (E-9)

List of Cases cited:

1. Lalankumar Singh & ors. Vs St. of Mah.; 2022
SCC Online 1383

2. Sarif Ahmed & anr. Vs St. of U.P. & anr.; 2024
SCC OnLine SC 726 [S.L.P. (Crl.) No. 1074 of
2017]

3. Dayle De'souza Vs U.O.I. (2021) 20 SCC 135
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Dhirendra Kr. Srivastava,
learned counsel for the applicant and Sri
Brijesh Kr. Dwivedi, learned A.G.A. for
the State.

2. The instant application has been
filed seeking quashing of the summoning
order dated 21.6.2024 as well as the entire
proceeding of Complaint Case No. 10707
of 2024, under Section 23 of Preconception
and
Pre-natal
Diagnostic
Techniques (Prohibition of Sex Selection)
Act, 1994, P.S. Balua, District Chandauli,
pending before C.J.M., Chandauli.

3. The sole contention of learned
counsel for the applicant is that the
summoning order ex facie is illegal, being
passed by non-application of mind. It is
further submitted that the Apex Court in the
case of Lalankumar Singh and others vs.
State of Maharashtra; 2022 SCC Online
1383 has clearly observed that summoning
a person is a serious matter and while
summoning a person, the court should
record its satisfaction which should be
reflected from the order itself.

4. Learned A.G.A. though opposed the
prayer, but could not dispute that no
satisfaction, regarding prima facie case,
was recorded in the summoning order.

5. After hearing the submissions of
learned counsel for the parties and on
perusal of the record, it appears that the
impugned complaint was filed on behalf of
the State of U.P. through Additional Chief
Medical Officer, Chandauli on the basis of
inspection of the premises of diagnostic
centre of the applicant on 28.5.2024
wherein several illegalities were found.

6. From the perusal of the impugned
summoning order, it appears that the court
below has not mentioned any satisfaction
whether any prima facie case is made out
against the applicant or not and also did not
discus about any material which is the basis
of filing this complaint. The Apex Court in
paragraph No.38 of the judgement in
Lalankumar Singh (supra) has clearly
observed that summoning of a person is
serious matter, therefore, issuance of
process is not an empty formality and
learned Magistrate should apply his mind
whether there exists any ground for
summoning the person or not. Paragraph
No. 38 of the Lalankumar Singh (supra) is
quoted as under:-

"38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
1 All. Anand Kumar Yadav Vs. State of U.P. & Anr.
325
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v.
Central Bureau of Investigation9, which
reads thus:

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he
shall issue process against the accused.

52. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he thinks
that it is unlikely to result in a conviction.

53.
However,
the
words
?sufficient
ground
for
proceeding?
appearing in Section 204 are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case
against the accused, though the order need
not contain detailed reasons. A fortiori, the
order would be bad in law if the reason
given turns out to be ex facie incorrect.?""

7. In a recent judgement, in the case of
Sarif Ahmed and another vs. State of U.P.
and another; 2024 SCC OnLine SC 726
[S.L.P. (Crl.) No. 1074 of 2017], the Apex
Court has observed that though while
issuing summon, the concerned court is not
required to record detailed reasoning, but it
should record its satisfaction on the basis of
material available on record. Paragraph No.
17 of the Sarif Ahmed (supra) is quoted as
under:-

"17. Section 204 of the Code does
not mandate the Magistrate to explicitly
state the reasons for issue of summons and
this is not a prerequisite for deciding the
validity of the summons. Nevertheless, the
requirement of the Code is that the
summons is issued when it appears to the
Magistrate that there is sufficient ground
for
proceeding
against
the
accused.
Summons is issued to the person against
whom
the
legal
proceedings
have
commenced. Wilful disobedience is liable
to be punished under Section 174 of the
Penal Code, 186014. As a sequitur, keeping
in mind both the language of Section 204 of
the Code and the penal consequences, the
Magistrate is mandated to form an opinion
as to whether there exists sufficient ground
for summons to be issued. While deciding
whether summons is to be issued to a
person, the Magistrate can take into
consideration
any
prima
facie
326 INDIAN LAW REPORTS ALLAHABAD SERIES
improbabilities arising in the case. The
parameters on which a summoning order
can be interfered with are well settled by
the decision of this court in Bhushan
Kumar (supra). The Magistrate in terms of
Section 204 of the Code is required to
exercise his judicial discretion with a
degree of caution, even when he is not
required to record reasons, on whether
there is sufficient ground for proceeding.
Proceedings initiated by a criminal court
are generally not interfered with by High
Courts, unless necessary to secure the ends
of justice."

8. Similarly, the Apex Court in the
case of Dayle De'souza vs. Union of India
(2021) 20 SCC 135, again observed that
summoning of a person should not be made
in routine and mechanical manner and the
court should record its satisfaction before
summoning a person. Paragraph No. 36 of
the Dayle De'souza (supra) is quoted as
under:-

"36. Equally, it is the court's duty
not to issue summons in a mechanical and
routine manner. If done so, the entire
purpose
of
laying
down a detailed
procedure under Chapter XV of the 1973
Code gets frustrated. Under the Proviso (a)
to Section 200 of the 1973 Code, there may
lie an exemption from recording presummoning evidence when a private
complaint is filed by a public servant in
discharge of his official duties; however, it
is the duty of the Magistrate to apply his
mind to see whether on the basis of the
allegations made and the evidence, a prima
facie case for taking cognizance and
summoning the accused is made out or not.
This Court explained the reasoning behind
this exemption in National Small Industries
Corpn. Ltd. v. State (NCT of Delhi)
[National Small Industries Corpn. Ltd. v.
State (NCT of Delhi), (2009) 1 SCC 407 :
(2009) 1 SCC (Civ) 192 : (2009) 1 SCC
(Cri) 513] : (SCC p. 415, para 12)

"12. The object of Section 200 of
the Code requiring the complainant and the
witnesses to be examined, is to find out
whether there are sufficient grounds for
proceeding against the accused and to
prevent issue of process on complaints
which are false or vexatious or intended to
harass the persons arrayed as accused.
(See Nirmaljit Singh Hoon v. State of W.B.
[Nirmaljit Singh Hoon v. State of W.B.,
(1973) 3 SCC 753 : 1973 SCC (Cri) 521] )
Where the complainant is a public servant
or court, clause (a) of the proviso to
Section 200 of the Code raises an implied
statutory presumption that the complaint
has been made responsibly and bona fide
and not falsely or vexatiously. On account
of such implied presumption, where the
complainant is a public servant, the statute
exempts examination of the complainant
and the witnesses, before issuing process."

The issue of process, resulting in
summons, is a judicial process that carries
with it a sanctity and a promise of legal
propriety."

9. From the above legal position it is
clear that though explicit reasons are not
required to be recorded while passing
summoning orders, but it should not be
cryptic and at least satisfaction or
opinion of court, regarding prima facie
case on the basis of available material,
must be recorded by the court below
before issuing summon to a person, even
if the case is filed by a public servant.

10. In the present case, no satisfaction
was recorded by the court below about
prima facie case against the applicant while
passing summoning order dated 21.6.2024.
Therefore, the impugned order is absolutely
1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
327
cryptic and erroneous which deserves to be
quashed.

11.
Accordingly,
the
impugned
summoning order dated 21.6.2024, passed
in Complaint Case No. 10707 of 2024,
under Section 23 of Pre-conception and
Pre-natal
Diagnostic
Techniques
(Prohibition of Sex Selection) Act, 1994,
P.S. Balua, District Chandauli, is hereby set
aside.

12. The court below is directed to pass
a fresh order in accordance with law.

13. With the above observation,
present application is allowed.
----------
(2025) 1 ILRA 327
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Civil Revision No. 524 of 2011

Pawan Kumar Kothiwal & Ors.
 ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Archit Mehrotra

Counsel for the Opposite Parties:
C.S.C.
A. Civil Law - Transfer of Property Act -
Unregistered Lease - Section 107 of T.P.A.
provides that a lease of immoveable
property for any term exceeding one year
can
be
made
only
by
a registered
instrument.
All
other
leases
of
immoveable property may be made either
by a registered instrument or by oral
agreement accompanied by delivery of
possession. Section 106 of the T.P.A.
states that in the absence of a contract, a
lease
of
immoveable
property
for
agricultural or manufacturing purposes
shall be deemed to be a lease from year to
year, terminable, on the part of either
lessor or lessee, by six months' notice;
and a lease of immoveable property for
any other purpose shall be deemed to be a
lease from month to month, terminable,
on the part of either lessor or lessee, by
fifteen days' notice. No lease rights can
flow in respect of immoveable property
beyond
the
period
prescribed
under
Section 107 of the Transfer of Property
Act from an unregistered instrument/
document. (Para 16)
B. Civil Law - Registration Act, 1908 -
Registration
of
agreement
entered
between
the
private
party
and
the
Government in respect of private land -
Section 90(1)(d), Registration Act, 1908
provides: that Nothing contained in the
Registration Act shall be deemed to
require, or to have at any time required,
the registration of sanads, inam, titledeeds and other documents purporting to
be or to evidence grants or assignments
by Government of land or of any interest
in
land.
Section
90(1)(d)
of
the
Registration Act stipulates only such
certificates and documents which are
issued by the Government creating rights
in respect of Government land or any
other rights in respect of such lands.
Section 90(1)(d) cannot be interpreted to
mean any agreement entered between the
private party and the Government in
respect of private land. Any right in
respect of immoveable property which is
not creating or conferring any assignment
or right as contemplated under Section
90(1)(d), is required to be compulsorily
registered under the Registration Act.
(Para 18)
C. Plaintiff's eviction suit. There was no
agreement in writing creating tenancy
rights in favour of the respondents. Letter
issued on behalf of Governor stipulated