# Anil Kumar Sharma v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-24
- **Case number:** Crl. Misc. Writ Petition No. 62 of 2013
- **Bench:** Amar Saran, Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-sharma-v-state-of-u-p-and-ors-42578
- **Pages:** 7

## Headnote

Constitution of India Art. 226- Speedy
Trail-submition of charge sheet by police
u/s 173 Cr. P.C.-DGP directed to ensure
presence
of
accused
before
the
magistrate-for that purposes police to
get ready the photo state copy of case
diary-direction
for
strict
compliance
issued-expressing great concern with the
decision of Home Secretary for not
providing the copy-magistrate also must
refrain from taking cognizance unless
accused is produced with I.O. report u/s
173(2)
Cr.P.C.-Registrar
General
to
ensure compliance of direction-put up
matter on 19.07.2013.

## Text

738 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
actually exist in a particular case or not.
In
the
present
case
both
these
circumstances do not exist at all.

25. In view of above, I answer all
the three questions against plaintiffappellant and hold that the plaintiff not
only failed to prove that sale of house was
not fair, proper and transparent but also
that the defendants-respondents took
advantage of their relationship with
plaintiff. Similarly, I hold that the factum
of sale consideration having been paid to
plaintiff stand proved and otherwise case
set up by plaintiff, she failed to prove.

26. In the result, the appeal, being
devoid of merit, is dismissed with costs
throughout.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2013

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE DINESH GUPTA, J.

Crl. Misc. Writ Petition No. 62 of 2013

Anil Kumar Sharma

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Hitesh Pachori

Counsel for the Respondents:
A.G.A.

Constitution of India Art. 226- Speedy
Trail-submition of charge sheet by police
u/s 173 Cr. P.C.-DGP directed to ensure
presence
of
accused
before
the
magistrate-for that purposes police to
get ready the photo state copy of case
diary-direction
for
strict
compliance
issued-expressing great concern with the
decision of Home Secretary for not
providing the copy-magistrate also must
refrain from taking cognizance unless
accused is produced with I.O. report u/s
173(2)
Cr.P.C.-Registrar
General
to
ensure compliance of direction-put up
matter on 19.07.2013.

(Delivered by Hon'ble Amar Saran, J.)

1. Heard Sri Sudhir Mehrotra,
learned Special Counsel for the Allahabad
High Court and Sri Vimlendu Tripathi,
learned Additional Government Advocate
representing the State.

2. Two affidavits of compliance
dated 8.3.13 on behalf of the Home
Department and the Director General of
Police, UP have been filed by the learned
Additional Government Advocate.

3. An affidavit of compliance of the
Registrar General, High Court dated
15.5.13 has been filed by Sri Mehrotra.

4. As a final report has been
submitted by the I.O. regarding which an
affidavit dated 8.3.13 has also been filed,
it will now be a matter for consideration
by the Court concerned on whether to
accept or to reject the final report. No
further orders are needed in the matter, so
far as the petitioner is concerned.

5. However as a number of other
issues have arisen for expediting the
process of trials and associated matters in
the State of U.P., as a result of this Courts'
orders in this petition, affidavits and
reports furnished by the parties from
whom this Court has sought directions/
information, looking to the importance of
the matter, this bench will continue to
monitor the said matters by an on-going
hearing
of
this
petition.
2 All] Anil Kumar Sharma Vs. State of U.P. and Ors.
739

DGPs
circular
dated
7.3.2013
directing police officers to produce the
accused in Court on the date of
submission of the report u/s 173(2)
Cr.P.C.

6. We are pleased to note that a
circular dated 7.3.2013 has been issued by
the Director General of Police pursuant to
the High Court's orders dated 7.1.2013,
17.1.2013 and 5.2.13 in the present writ
petition for ensuring the appearance of the
accused persons in the Court on the date
when the report u/s 173(2) Cr.P.C is to be
filed, which inter alia provides that where
the accused was arrested prior to
submission of charge sheet and where he
has got himself bailed out, or in those
cases where the provisions of section
41(1)(a) and 41(1)(b) Cr.P.C apply or
where there was a stay order restraining
the arrest of the accused till submission of
the charge sheet under section 173(2)
Cr.P.C. or an unconditional stay of arrest
order, in all those eventualities, the
accused may be directed to appear before
the Court concerned on the date fixed. If
the accused was in jail and has not been
bailed out, then the Jailer should be
directed to produce him on the date fixed,
when the report u/s 173(2) Cr.P.C is to be
submitted. If the accused is absconding
and his arrest was not possible, then
action may be taken against the accused
persons under section 174(a) IPC. A
proforma directing the accused to appear
on the date that the charge sheet is filed
has also been prepared and is appended to
the DGPs circular. The steps taken in this
regard are to be noted by the I.O. in his
case diary. The supervising officer must
also ensure compliance of the aforesaid
directions. Any negligence in ensuring
compliance with this circular will invite
stringent action against the I.O. and his
supervising officer. We also direct strict
compliance of the DGPs circular, and a
submission of a compliance report on the
next listing as to the extent that the DGPs
circular on the directions issued is being
followed.

Criticism of Affidavit of Home
Department refusing to direct police
officers to prepare copies of papers u/s
173(2) Cr.P.C for furnishing to accused
on first appearance before Magistrate.

7. In the affidavit filed on behalf of
the Home Department it has been
mentioned that a meeting was held on
5.3.2013 under the Chairmanship of the
Principal Secretary (Home) in which
Addtl. L.R., Special Secretary (Finance),
ADG (Prosecution), DIG (Headquarters)
and the Joint Director (Prosecution)
participated. It was decided in the meeting
dated 5.3.13 that the direction of this
Court in the order dated 5.2.13 that photo
copies of the police report required to be
handed over to the accused under section
207 Cr.P.C be provided by the police
officer/ I.O. at the time of his appearance
before the Court could not be complied
with as it was the obligation of the
Magistrate concerned to supply the
copies. Also there were problems in
arranging for the photocopies because of
lack of manpower and infrastructure at the
police stations. However the Court system
could be strengthened and the necessary
budget could be provided.

8. We may state unequivocally that
we are distressed by this attitude of the
Home Secretary's Committee. We may
mention here that under the present
system the office of the subordinate
Courts have excess paper work on their
hands, as copies of papers have to be
740 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
handed over in innumerable matters and
are to be prepared for multiple purposes.
When all of a sudden the report u/s 173(2)
Cr.P.C is produced by the police officer
before the Court (usually in the absence
of the accused), then routinely the matter
is sent for preparation of its copies to the
copying section, without any date being
fixed. The I.O. also conveniently absolves
himself of the responsibility of producing
the accused, by taking the ingenious plea
that after submission of the report he is
not required to arrest or produce the
accused without warrants or summons
being issued by the concerned Courts.
Owing to routine pressure before the
Criminal Courts, absence of copies of the
papers, delays are unavoidable. Also
occasionally the accused collude with
inferior officials in the district courts and
matters are not brought to the notice of
the concerned Magistrates for issuance of
warrants or summons for appearance of
the charge sheeted accused on a fixed
date, for long periods of time. The result,
as the figures hereunder will show, has
been catastrophic.

9. In this connection it may be noted
that by the order dated 5.2.13 we had also
asked details from the State government
and the High Court registry through the
district judges as to the number of cases
where the accused have not appeared in
the Courts after the submission of the
report under section 173(2) Cr.P.C for
periods up to 3 months, 6 months, 9
months, 12 months or 2 years or more. In
the meeting headed by the Home
Secretary dated 5.3.13 three months
further time was sought for furnishing
these details. However we are pleased to
note that the registry has taken our
direction very seriously and on on the
basis of the information furnished by the
District Judges from 71 districts it has
prepared a tabular chart which shows that
in as many as 6,20,104 (six lakh, twenty
thousand, one hundred and four cases) the
accused have not been arrested after
submission of the reports u/s 173(2)
Cr.P.C. Out of which in 10371 cases the
accused have not appeared for a period of
up to 3 months, in 95385 cases for a
period up to 6 months, in 97948 cases for
a period up to 9 months, in 96155 cases
for a period up to 12 months, in 164313
cases for a period up to 2 years, in 62602
cases for a period of more than two years.
These figures shock the conscience of the
Court. We must record our strongest
disapproval
against
the
attitude
of
unwillingness to assume responsibility
and the policy of shifting the burden
adopted
by
the
Home
Secretary's
committee in its 5.3.2013 meeting, where
instead of taking on this grave problem of
delay in bringing accused to justice head
on, once the charge sheet is submitted by
ensuring that the accused are produced/
appear before the Court on the first date
when the charge sheet is submitted, (as
has been directed by the DGP's circular
dated 7.3.13), by immediately ensuring
that the 207 Cr.P.C papers are ready and
duly handed over to the accused through
the Magistrates concerned, so that the
people's
confidence
in
the
justice
administration system is not destroyed.
The committee has instead chosen to take
such escapist pleas, that the duty is of the
Courts with their overload of cases and
lack of staff, (for which the State is
eventually responsible) that they must get
the photocopies prepared for handing over
the accused, even though as a result of the
earlier system where the police officer
could shirk his responsibility of bringing
the accused to justice by taking the
spurious plea that no warrants or
2 All] Anil Kumar Sharma Vs. State of U.P. and Ors.
741
summons have been issued by the Court
concerned, and thereafter summons or
warrants could be avoided as the 173(2)
Cr.P.C copies were not available for
handing over to the accused, the result has
been that in over 6 lakhs 20,000 cases, the
accused have merrily roamed around for
years even after a prima facie case was
established against them on submission of
the reports u/s 173(2) Cr.P.C. Compared
to the delays and complications involved
in the Court getting the papers prepared in
all the cases where reports u/s 173 (2)
Cr.P.C
are
submitted,
it
is
a
comparatively minor problem for a police
officer, to have the photo copies of the
papers mentioned in s. 207 Cr.P.C
available in the few cases where he
decides to submit the charge sheet, for
passing on to the Magistrate for supply to
the accused u/s 207 Cr.P.C when he
submits his report u/s 173(2) Cr.P.C and
simultaneously to ensure that the accused
is present at that time. This small step
could have gone such a long way for
solving the problem of the accused not
being brought to justice for such long
periods of time, which would have
substantially reduced the delays in the
trial process.

10. Section 207 only requires the
Magistrate to hand over the report and
papers mentioned in s. 173 Cr.P.C to the
accused free of cost. It does not direct that
the Court alone should get the papers
prepared. Under section 173(7) Cr.P.C
also powers have been conferred on the
I.O. to furnish copies of the papers
mentioned in s. 173(5) Cr.P.C to the
accused. With computerization of papers
and other facilities we also see no
impediment before the I.O., handing over
the papers to the accused, and obtaining a
receipt from him, when the report u/s
173(2) Cr.P.C is to be submitted. There
could thus be no harm if the papers could
be prepared and were available with the
I.O. for getting them handed over directly
or by the Magistrate, when he submits his
report u/s 173(2) Cr.P.C., and the accused
are also present.

11. The Principal Secretaries Home,
is
therefore
being
assigned
the
responsibility to ensure that a) the accused
are present in Court when the report u/s
173(2) Cr.P.C is submitted, as has been
directed by the DGPs circular dated
7.3.13 in compliance of this Court's
earlier orders and b) that copies of the
papers mentioned u/s 207 Cr.P.C are
available with the I.O. for handing over
free of cost to the accused though the
Magistrate at the time of the initial
appearance of the accused. For this
objective the Home Secretary must ensure
that either infrastructure and manpower
for photocopying is directly available in
the police stations/ C.O.'s office or
indirect
arrangements
for
preparing
photocopies of these papers is made. The
Principal Secretaries Finance and Law,
the DGP and the Director Prosecutions
are directed to render all assistance to the
Home Secretary for complying with these
directions.

Direction to DGP and Principals
Secretary (Home) to ensure appearance
of accused in 62014 cases where they
have not appeared despite submission
of reports u/s 173(2) Cr.P.C

12. We also direct the DGP and the
Principal Secretary (Home), U.P. and
Director (Prosecutions) to ensure that in
all the aforementioned 620104 cases, the
accused must be produced before the
Courts concerned where the reports u/s
742 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
173(2) Cr.P.C have been submitted within
a period of 3 months. They will not be
required
to
first
obtain
warrants/
summons from the Courts concerned in
each case for production of the accused in
all such cases where the accused have not
yet been produced or appeared before the
Court even though reports u/s 173(2)
Cr.P.C have been submitted, and that the
copies of the papers mentioned u/s 207
Cr.P.C. be available for handing over to
the accused on their first appearance.

Courts directed not to accept
reports
u/s
173(2)
Cr.P.C
unless
accused produced

13. The Courts concerned are
directed not to accept the reports u/s
173(2) Cr.P.C unless the accused are
produced in custody or appear before the
Court at the time of submission of the
report. The only exception to this
direction could be when the production of
an accused who is in custody cannot be
avoided due to illness or other genuine
reason, and the 60 or 90 days period for
completion of investigation by submission
of the charge sheet mandated u/s 167(2)
Cr.P.C, is about to expire.

14. The Magistrate could then pass
appropriate orders for custody or bail and
immediately issue other directions such as
for taking cognizance and for committing
the case to the Court of Sessions Judge
and directing the accused to appear before
the Court concerned on the dates fixed.

15. In case the State government
disputes the correctness of the figures
regarding the number of cases or the
accused who have not appeared before the
Courts after submission of the reports u/s
173(2) Cr.P.C as furnished in the R.G.s
affidavit, they may give the correct
figures as per their estimation on the next
listing.

16. The copy of the affidavit of the
Registrar General, High Court, Allahabad
dated 15.3.2013 may be handed over to
the learned AGA at the earliest.

Feedback sought from Secretary
(Law), and Secretary (Home), UP and
Law Commission of India on amending
s. 209 Cr.P.C for allowing police to
directly submit charge sheets to the
Sessions Courts in Sessions triable
cases,
without
requirement
for
committal by Magistrate

17. Let a fresh reminder be sent
forthwith (along with the copy of the
earlier order of this Court dated 5.2.13)
suggesting that s. 209 Cr.P.C be amended
and the police be directed to submit the
reports u/s 173(2) Cr.P.C directly to the
Sessions Judge in Sessions triable cases
without compelling the police officer to
follow the circumlocutory procedure of
first
submitting
the
report
to
the
Magistrate, who in turn is required to
commit the same under section 209
Cr.P.C. to the Court of Sessions. Such a
letter No. 3348 dated 7.2.13 was already
sent to the Secretary (Law), and Secretary
(Home), UP as well as the Law
Commission of India, New Delhi along
with Chief Justice's approval note dated
27.2.13 pursuant to our earlier order dated
5.2.13. We would like a response of the
said respondents on this suggestion by the
next listing.

Direction for issuance of effective
circular under section 309 Cr.P.C for
ensuring day to day trials of accused
2 All] Anil Kumar Sharma Vs. State of U.P. and Ors.
743

18. In the previous order, dated
5.2.13 we had directed that a more
effective circular under section 309
Cr.P.C for day to day trials of the accused
be issued on the same lines as has been
issued by the Delhi High Court as is
described in paragraph 27 in Akil @
Javed v State of NCT, Delhi, 2012(11)
SCALE 709, by the next listing, i.e. by
8.3.2013, keeping in mind the fact that the
brief circulars issued so far by the registry
(one such brief circular being the circular
dated 8.3.13 which has even been
annexed with the RG's affidavit of
compliance) did not give clear and
effective directions to the lower Courts on
how to ensure proper compliance with the
mandate of s. 309 Cr.P.C.

19. We regret to note that although a
detailed circular seems to have been
prepared by the Registry, it has still not
been issued and circulated and there has
been a failure to comply with that
important
direction
for
checking
unwarranted delays in the trials. It may be
noted that now an outer time limits of two
months from the date of charge sheet in
rape and allied cases u/s 376, 376 A to
376 D (instead of from the date of first
examination of the witnesses), has been
fixed by the of the Criminal Law
Amendment Act, 2013 with effect from
3.2.13. The Apex Court has again in a
recent judgment dated 10.5.2013 in
Gurnaib Singh v. State of Punjab
reviewed the law and cases reiterating the
mandatory nature of s. 309 Cr.P.C, and
has criticized the Punjab High Court for
allowing the trial to be unduly prolonged
in contravention of this salutary provision.
Hence any further delay in issuing an
effective circular under section 309
Cr.P.C is wholly unwarranted.

20. We therefore direct that the
Registrar General ensures that the said
detailed circular is issued by the next
listing.

21. We have also not received
adequate feed back from the District
Judges regarding the information sought
in the order dated 5.2.13 about the extent
of compliance with s. 309 Cr.P.C by the
subordinate Courts and their suggestions
for expediting trials and the difficulties
that they face. Let reminder letters be
expeditiously sent by the registry to all
the
concerned
District
Judges
for
furnishing the said information before the
next listing.

22. List this case on 19.7.2013.

23. On that date, we would like
personal affidavits of to be filed by the
Principal Secretary, Home, Finance, and
Law, DGP and Director (Prosecutions),
U.P. regarding the extent to which the
aforesaid directions by the present order
and by the earlier order dated 5.2.13 have
been complied with. Senior officers under
the DGP, Principals Secretaries Home,
Finance and Law capable of taking
decisions and who can acquaint the Court
on the steps taken on these matters be also
present on the next listing.

24. Copy of this order may also
be given to Shri Sudhir Mehrotra,
Special Counsel for Allahabad High
Court and Shri Vimlendu Tripathi,
learned
Additional
Government
Advocate for compliance. The order
may also be placed before the Hon'ble
Chief
Justice
and
the
Registrar
General at the earliest.
---------
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2013

BEFORE
THE HON'BLE KALIMULLAH KHAN, J.

Criminal Misc Transfer Application No. 106
of 2013(u/s 407 Cr.P.C.)

Smt. Kasmun Nisan
 ...Applicant
Versus
State of U.P. and Ors ....Respondents

Counsel for the Petitioner:
Sri Saurabh Sachan, Sri A.K. Sachan

Counsel for the Respondents:
A.G.A., Sri Shashank Tripathi

Code of Criminal Procedure-Section 407-
Transfer of criminal case pending before
J.M. Kanpur Dehat-on ground-fair and
impartial trail could not be at Kanpur-as
prosecution witness due to terror of
accused person failed to appear-and even
on complaint-neither any protection given
by magistrate nor by police officerconsidering peculiar facts of the case-trail
of case transferred to Session Division
Fatehpur-considering convenience of both
parties.

Held: Para-6
To my mind the concerned criminal trial
should not be allowed to prolonge which
should be decided at an early date by a
Court where neither of the parties may
exercise man power in the proceedings in
the Court premises. It would be convenient
for the parties also that the case may be
sent to such a place where the parties may
conveniently appear. To my mind, Sessions
Division, Fatehpur is on main route of train
where parties may reach conveniently from
Kanpur Nagar.

(Delivered by Hon'ble Kalimullah Khan,J.)

1. Heard learned counsel for the
parties and perused the record, including
counter and rejoinder affidavits, already
exchanged.

2. This transfer application has been
filed under Section 407 Cr.P.C to transfer
the Case No. 184 of 2012 (State Vs.
Gulam Muhiuddin & others) pending in
the Court of Judicial Magistrate, Kanpur
Dehat arising out of Case Crime No. 76 of
2009, under Sections 498-A, 323, 504,
506, 324 IPC and 3/4 D.P.Act, P.S.
Rajpur, District Kanpur Dehat to some
other neighbouring district.

3. The ground of transfer in nutshell
is that opposite party No.2 to 11 are the
accused in Criminal proceeding under
Sections 498-A, 323, 504, 506, 324 IPC
and 3/4 D.P.Act, P.S. Rajpur, District
Kanpur Dehat pending before the Court of
Judicial Magistrate, Kanpur Dehat. The
applicant's contention is that prosecution
witness could not be produced due to
terror of the accused/ respondent No.2 to
11 and applicant and her father were
threatened
for
dire
consequences.
Applicant has given application for
protection by police to the Judicial
Magistrate Ist , Kanpur Dehat but no
action has been taken and police has also
not provided any protection to the
applicant and her family.

4. The counter affidavit has been
filed denying the aforesaid allegations of
threating etc. and submitted that applicant
by misleading the Hon'ble Court filed the
present application which is liable to be
dismissed.

5. From the perusal of record it
transpires that the relation of applicant
wife and her husband accused opposite
party No.2 is strained and both the parties
are resident of Kanpur Nagar. Accused