# Angad & Ors v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 539
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Crl. Misc. Writ Petition No. 19080 of 2011
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/angad-ors-v-state-of-u-p-anr-50374
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120 - B ,397, 418 , 420 ,
504 & 506 - The Code of Criminal
540 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure, 1973 - Sections 245(1) &
245(2) - Order of civil court could be
challenged under Article 227 of the
Constitution of India and not under
original writ jurisdiction under Article 226
of the Constitution of India - Nonmentioning
or
wrong
mentioning
of
provisions of law should not come in the
path of granting appropriate relief, if the
litigant otherwise is entitled for the same
- Even while exercising powers under
Article 227 of the Constitution of India,
the Courts are not permitted to go deep
into the matter and test the arguments
advanced by the parties on the anvil of
evidence or decide disputed questions of
fact.(Para -7,8,9)

Criminal complaint against co-accused - sold her
house to complainant's aunt - accused-petitioner
no.1 stood as marginal witness - purchaser was
in possession - accused-petitioner no.1 was
tenant in that house - demanded rent - not paid
- instead filed civil suit - marginal witness of sale
deed
-
fraudulently
obtained
receipt
by
depositing house tax - got his name mutated -
accused persons intruded in his house/shop -
removed
Rs.4000/-
from
cash counter
-
threatened
to
settle
matter
or
to
face
consequences - Magistrate summoned only
petitioner and his wife (co-accused) - revision -
summoning order set aside by session court -
Magistrate to pass afresh order - passed second
order - summoning petitioner no.1 , his wife and
petitioners no.2 - Criminal Revision - dismissed -
hence

petition
under
Section
226
of
Constitution of India.(Para - 4)

HELD:- Attempt to drag petitioner in a criminal
case, whereas dispute is essentially civil in
nature. Court refrained from interfering in the
revisional court's order in a second round of
litigation. Petitioners seeking bail must appear
before the court within a month and be
considered expeditiously without unnecessary
adjournment. Petitioners can apply for discharge
under section 245(1) or 245(2) Cr.P.C., and the
Magistrate/Court will decide by passing a
reasoned and speaking order.(Para - 9)

Petition disposed of. (E-7)

List of Cases cited:
Radhey Shyam & anr. Vs Chhabi Nath & ors.,
(2015) 5 SCC 423

## Text

7 All. Angad & Ors. Vs. State of U.P. & Anr.
539
Cosmetics Act, can be prosecuted only by
means of a complaint and not an FIR as is
clear from the perusal of the judgment cited
by learned counsel for the petitioners as
also Section 32 of the Act.

23. Having said so, the issue, which
arises is as to what relief is liable to be
granted in the writ petition.

24. It would be relevant to state that
the other submissions made by learned
counsel for the petitioner are not being
adverted to as the same are rendered purely
academic in view of the finding arrived at
herein above.

25. Normally, in view of the finding
arrived at, the most logical approach would
be to quash the impugned FIR. However,
the Apex Court in the judgment cited in
paragraph 141 has observed as follows:-

"141. This process of interpretation
would produce the result of harmonizing two
seemingly irreconcilable commands from the
Law-Giver. This interpretation commends
itself to us for the reason that the investigation
into offences, under Chapter IV of the Act,
would commence, be carried out and would
culminate in, in the safe hands of the
competent and qualified Statutory Authority,
as designated by law. It would also avoid an
outside agency like a Police Officer, being
obliged to register an FIR, for the reason that
where arrest has to be made, a FIR is to be
registered, and, when the registering of the
FIR carries with it an unattainable object of
preferring a Final Report under Section 173 of
the CrPC, as far as the Police Officer is
concerned. We make it clear that if a Police
Officer is approached with regard to a
complaint regarding commission of an offence
falling under Chapter IV of the Act, he is not to
register an FIR unless it be that a cognizable
offence, other than an offence falling under
Chapter IV of the Act, is also made out. He
must makeover the complaint to the competent
Drug Inspector so that action in according
with law is immediately taken where only
offences under Chapter IV are made out."

24. In view of the aforesaid direction
given by the Apex Court, we refrain from
quashing the FIR and only direct that the
petitioners shall not be prosecuted or arrested
consequent to the impugned FIR and the first
information report shall not be acted upon by
the police authorities unless, the petitioners
have already been convicted on an offence(s)
under Chapter IV, as is provided by the U.P.
Amendment of Section 30 of the Act. It is left
open for the Drug Inspector, the first informant
in the FIR to proceed in accordance with law
by lodging a complaint before the appropriate
forum for the prosecution of the petitioners in
these two petitions.
----------
(2023) 7 ILRA 539
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Writ Petition No. 19080 of 2011

Angad & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Sanjeev K. Tiwari, Sri S.K. Singh, Sri Shashi
Kant Dwivedi

Counsel for the Respondents:
Govt. Advocate, Sri Gokaran Singh

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120 - B ,397, 418 , 420 ,
504 & 506 - The Code of Criminal
540 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure, 1973 - Sections 245(1) &
245(2) - Order of civil court could be
challenged under Article 227 of the
Constitution of India and not under
original writ jurisdiction under Article 226
of the Constitution of India - Nonmentioning
or
wrong
mentioning
of
provisions of law should not come in the
path of granting appropriate relief, if the
litigant otherwise is entitled for the same
- Even while exercising powers under
Article 227 of the Constitution of India,
the Courts are not permitted to go deep
into the matter and test the arguments
advanced by the parties on the anvil of
evidence or decide disputed questions of
fact.(Para -7,8,9)

Criminal complaint against co-accused - sold her
house to complainant's aunt - accused-petitioner
no.1 stood as marginal witness - purchaser was
in possession - accused-petitioner no.1 was
tenant in that house - demanded rent - not paid
- instead filed civil suit - marginal witness of sale
deed
-
fraudulently
obtained
receipt
by
depositing house tax - got his name mutated -
accused persons intruded in his house/shop -
removed
Rs.4000/-
from
cash counter
-
threatened
to
settle
matter
or
to
face
consequences - Magistrate summoned only
petitioner and his wife (co-accused) - revision -
summoning order set aside by session court -
Magistrate to pass afresh order - passed second
order - summoning petitioner no.1 , his wife and
petitioners no.2 - Criminal Revision - dismissed -
hence

petition
under
Section
226
of
Constitution of India.(Para - 4)

HELD:- Attempt to drag petitioner in a criminal
case, whereas dispute is essentially civil in
nature. Court refrained from interfering in the
revisional court's order in a second round of
litigation. Petitioners seeking bail must appear
before the court within a month and be
considered expeditiously without unnecessary
adjournment. Petitioners can apply for discharge
under section 245(1) or 245(2) Cr.P.C., and the
Magistrate/Court will decide by passing a
reasoned and speaking order.(Para - 9)

Petition disposed of. (E-7)

List of Cases cited:
Radhey Shyam & anr. Vs Chhabi Nath & ors.,
(2015) 5 SCC 423

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

01. Heard Sri Shashi Kant Dwivedi,
learned counsel for the petitioner and Sri
Gokaran Singh, learned counsel for the
respondent no.2 and learned A.G.A. for the
State and perused the record.

02. This criminal writ petition under
Article 226 of the Constitution of Inida has
been filed against the judgment and order
dated
05.09.2011 passed
in
criminal
revision no. 222 of 2010, Ajay Kumar and
others vs. State of U.P. and another) by
Additional District & Sessions Judge, court
no.3, Mau whereby the order of Chief
Judicial
Magistrate,
Mau
passed
in
complaint case no.4289 of 2008 dated
31.08.2010 was not interfered at and the
revision was dismissed.

03. The petitioner has prayed for
issuance of direction in the nature of
ceriorari to quash both the orders dated
05.09.2011 and 31.08.2010.

04. For clarity following relevant
facts are being narrated:-

(i) Respondent no.2 Angnoo Singh
Yadav filed a criminal complaint before
C.J.M, Mau alleging that co- accused
Dhanauti
Devi
sold
her
house
to
complainant's aunt Buddha Devi in 1986;
accused-petitioner no.1 Angad stood as
marginal witness, and Buddha Devi sold
that house to complainant's bhabhi Radha
Devi in 2007 and since then purchaser was
in possession thereof; accused-petitioner
no.1 was tenant in that house; when the
purchaser demanded rent from him he did
7 All. Angad & Ors. Vs. State of U.P. & Anr.
541
not pay the same and instead filed a case in
civil court; he who himself was the
marginal witness of the sale deed of 1986
fraudulently obtained receipt by depositing
house tax of the house in question and got
his name mutated in the Nagar Palika
papers; On 03.12.2008 all the accused
persons intruded in his house/shop and
removed Rs.4000/- from cash counter and
threatened him either to settle the matter or
to face the consequences.

(ii) Learned Magistrate summoned
only Angad and Dhanauti Devi for the
offence under Section 397, 504 and 506
I.P.C. The complainant filed a revision and
the court of sessions set aside the
summoning order and called upon the
Magistrate to pass an order afresh. The
Magistrate
passed
second
order
on
31.08.2010 summoning the petitioner no.1
Angad and his wife Dhanauti Devi under
Section 418 and 420 I.P.C. and petitioners
no.2 to 4 and Dhanauti Devi under Section
397, 504,506 and 120-B I.P.C.. Challenging
the above orders the petitioner preferred
Criminal Revision no.222 of 2010 but the
same was dismissed by order dated
05.09.2011. Now the petitioners are before
this Court by means of this criminal writ
petition
under
Section
226
of
the
Constitution of India

05. It is contended on behalf of the
petitioners that both the orders have been
passed without application of mind. At the
most controversy is only civil in nature.
This complaint has been filed to harass and
humiliate them. The entire story is false and
concocted and in fact no prima facie case is
made out against them. Subject matter of
the sale deeds is house no.94/1 and
petitioners' house is numbered as 94.

06. The contentions of the petitioners
are opposed by respondent no.2 on the
ground that in a judicial order this Court is
not allowed to interfere while exercising
writ jurisdiction under Article 226 of the
Constitution of India. Hence, the petition
should be dismissed at the very threshold.
To stress above point. Judgement of
Hon'ble Supreme Court in the case of
Radhey Shyam and another vs. Chhabi
Nath and others, (2015) 5 SCC 423 has
been referred to. The apex court in the
aforesaid judgment held that writ of
certiorari lies to bring decisions of an
"Inferior court", tribunal, public authority
or any other body of persons for review so
that the court may determine whether they
should be quashed or not. However,
expression "interference" the court is not
referable to the judicial courts Writ of
certiorari lies against patently erroneous or
without jurisdiction orders of tribunals or
authorities or courts other than judicial
courts. The Apex Court in para 25 further
observed as below:-

"25. All courts in the jurisdiction of a
High Court are subordinate to it and
subject to its control and supervision under
Article
227.
Writ
jurisdiction
is
constitutionally conferred on all High
Courts.
Broad
principles
of
writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction
orders
of
Tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India for
High Courts to issue writs to subordinate
courts. Control of working of subordinate
courts in dealing with their judicial orders
is exercised by way of appellate or
revisional
powers
or
power
of
superintendence under Article 227.Orders
of civil court stand on different footing from
the orders of authorities or Tribunals or
courts other than judicial/civil courts.
542 INDIAN LAW REPORTS ALLAHABAD SERIES
While appellate or revisional jurisdiction is
regulated
by
statutes,
power
of
superintendence under Article 227 is
constitutional. The expression "inferior
court" is not referable to judicial courts,

07. Thus it has been clearly laid down
that order of civil court could be challenged
under Article 227 of the Constitution of
India
and
not
under
original
writ
jurisdiction under Article 226 of the
Constitution of India.

08. Certain facts attract attention of
this Court :-

This writ petition was filed on
26.09.2011 and it is pending since then, i.e.,
since more than 11 years now. All this
while, this legal point was neither raised
nor realized that this writ petitions seeks to
invoke powers under Article 226 instead of
Article 227 Constitution of India . This is
settled law that non-mentioning or wrong
mentioning of provisions of law should not
come in the path of granting appropriate
relief, if the litigant otherwise is entitled for
the same. In my view, an ordinary litigant
cannot be expected of having too minute
knowledge of provisions of law. This
question has always been troubling my
judicial conscience that what a common
man or ordinary litigant has to do with the
provision of law under which he may be
entitled for relief. This should be the
concern of the Court of law or Court of
justice or his counsel/advocate. Where no
other deterrent except non mentioning or
wrong mentioning of law poses a hurdle in
the winding path to justice, the judge ought
to play its expected role. The Judge or the
Court shall be failing in its duty towards an
ordinary man/litigant by not looking for
solutions and dismissing the writ on
technical ground. In this view of the matter,
I find it fit to treat this petition as one
moved
under
Article
227
of
the
Constitution of India.

9. Quite a number of arguments have been
placed before me touching upon the merits
of this matter including the one that in this
case, there is a clear attempt to drag the
petitioner in a criminal case, whereas the
dispute, if any, is essentially civil in nature.
Considering the settled law that even while
exercising powers under Article 227 of the
Constitution of India, the Courts are not
permitted to go deep into the matter and
test the arguments advanced by the parties
on the anvil of evidence or decide disputed
questions of fact, I, therefore refrain from
interfering in the order passed by the
revisional court in a second round of
litigation between the parties. At the same
time, I find it irresistible to mention that
there are certain contentions which may
have some substance as far as merits of the
matter are concerned and which could have
been seen by the trial court as well as by
the revisional court. Hence,I find it fit to
dispose of this writ petition in the manner
as below:-

(I) The prayer for issuance of writ of
certiorari is hereby refused.

(II) In case, the petitioners appear
before the court concerned and apply for
bail within a month from today, their bail
application
shall
be
considered
and
disposed of as expeditiously as possible
without
granting
any
unnecessary
adjournment to either sides.

(III) In case, during the course of
proceedings before the court concerned at
appropriate stage the petitioners apply for
their discharge by moving a suitable
application under the provisions of section-
245(1) or 245(2) Cr.P.C. as the case may
be, the same shall be decided by the
7 All. Arun Kumar Dwivedi & Anr. Vs. Sri Bharat Bhushan Khanna & Anr.
543
concerned Magistrate/Court by passing a
reasoned and speaking order.

10 . Accordingly this writ petition is
disposed of.
----------
(2023) 7 ILRA 543
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal from Order No. 165 of 2006

Arun Kumar Dwivedi & Anr. ...Appellants
Versus
Sri Bharat Bhushan Khanna & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Arun Kumar Mishra, Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Saurabh Srivastava

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-deceased was a son of the
claimants/parents- He was the student of
Class 11th-Annual income of the deceased
is considered to be Rs. 60,000/- 50%
added towards future prospects as per
Rules 220-A(3) of 1998-Hence , total
compensation granted Rs. 9,20,000/- @
7%.(Para 1 to 33)

B. Filial consortium is the right of the
parents to compensation in the case of an
accidental death of a child. An accident
leading to the death of a child causes
great shock and agony to the parents and
family of the deceased. The greatest
agony for a parent is to lose their child
during their lifetime. Children are valued
for their love, affection, companionship
and their role in the family unit.(Para 31)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Saroj Devi & ors. Vs Royal Sundaram Alliance
Ins. Co. Ltd. & anr. (2016) 2 TAC 281 All..

2. V. Mekala Vs M. Malathi & Anr. (2014) 11
SCC 178

3. M.R. Krishna Murthi Vs New India Assur. Co.
Ltd & ors. (2020) 15 SCC 493

4. Gopalpuri Jai Prakash & ors. Vs The Managing
Dir, APSRTC & ors., MACMA. No. 694 of 2011

5. Meena Pawaia & ors. Vs Ashraf Ali & ors.
(2021) SCC OnLine SC 1083

6. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

7. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

8. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

9. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

10. New India Assur. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822

11. Sushil Kumar & ors. Vs M/s. Sampark
Lojastic Pvt. Ltd & ors. (2017) 35 LCD 1311

12. P.O. Meera & anr..Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

13. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498

14. Shashikala & ors. Vs Ganga-lakshmamma &
anr.. (2015) 9 SCC 150

(Delivered by Hon'ble J.J. Munir, J.)

This is a claimants appeal arising out
of a judgment and award passed by the
learned District Judge/ Motor Accident