# Anuj Kumar Pandey & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 6 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023
- **Case number:** Application u/s 482 No. 17732 of 2018
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-kumar-pandey-ors-v-state-of-u-p-anr-opp-parties-50330
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 125, 128 & 482: -
Application U/s 482 -Criminal Procedure
Code, 1973 - Sections - 125, 128 & 482: -
Application U/s 482 - applicant challenging the
summoning order and order passed in criminal
revision as well as further proceedings -
Complaint u/ section 156(3) of Cr.P.C. - FIR -
investigation - final report - protest petition -
final report was rejected - but, after recording
the St.ment u/section 200, 202 Cr.P.C. and after
perusal of entire facts court below dismissed the
complaint case u/section 203 of Cr.P.C. -
against which informant were preferred a
criminal Revision - revisional court allowed the
revision and remanded the matter to court
below for fresh consideration - consequently,
trial court summoned all the accused - applicant
takes plea that they have a right of being heard
before the revision court while remanding the
matter afresh - court finds that, it is not clear as
whether an opportunity of hearing was afforded
to the applicants or the proper service of notices
upon them was ever effected or not which
should have been explicitly mentioned in the
revisional order - held, order of issuance of
process against the accused applicants cannot
be sustained which causing prejudice to him as
such, the impugned order, allowing the revision
without hearing the accused-applicants, is
6 All. Anuj Kumar Pandey & Ors. Vs. State of U.P. & Anr.
577
vulnerable in law - hence, applicant is allowed -
matter is remanded back to the revision court to
pass a fresh order in accordance with law after
hearing the accused applicants, within three
months.
(Para - 9, 10, 11)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

## Text

576 INDIAN LAW REPORTS ALLAHABAD SERIES
sparing a convict found guilty of such a
crime."

(Emphasis by Court)

6. Now, here the evidence shows that
the weapon used was a fire-arm and it
brooks little doubt that a person who opens
FIR at another does so with the intention to
kill. He certainly does not do so with the
intention to love or play a jest.

7. In this case, the gun shot injury was
sustained on the neck, which is a vital part
of the body. The medico legal report clearly
shows that there was blackening in the area
of 12cm x 12cm at the site of the injury on
the neck, where the gun shot injury was
received.
The
supplementary
medical
report shows evidence of a radio-opaque
shadow of metallic density seen in the
temporomandibular joint. This shows that
the pellets from the fire-arm were lodged in
the temporomandibular joint. This being
the nature of and injury and the site, beside
the weapon used, to permit the parties to
compromise would be an abdication of the
State's function to prosecute offences
against the society. This certainly, in
opinion of the Court, cannot be permitted.
To the understanding of this Court, the
principle laid down in Narinder Singh
case
does
not
approve
of
such
a
composition and quashing on its basis.

8. This order will in no manner
prejudice in doing an independent of
evidence at the trial.

9. This application is rejected.

10. Let this order be communicated to
the Additional Sessions Judge, Court No. 1,
Chitrakoot through the learned Sessions
Judge,
Chitrakoot
by
the
Registrar
(Compliance) within 48 hours.
----------
(2023) 6 ILRA 576
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.0.52023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application u/s 482 No. 17732 of 2018

Anuj Kumar Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Sanjay Singh, Sri Amrendra Nath Rai

Counsel for the Opp. Parties:
G.A., Sri Ved Prakash Pandey

Criminal Law - Criminal Procedure Code,
1973 - Sections 125, 128 & 482: -
Application U/s 482 -Criminal Procedure
Code, 1973 - Sections - 125, 128 & 482: -
Application U/s 482 - applicant challenging the
summoning order and order passed in criminal
revision as well as further proceedings -
Complaint u/ section 156(3) of Cr.P.C. - FIR -
investigation - final report - protest petition -
final report was rejected - but, after recording
the St.ment u/section 200, 202 Cr.P.C. and after
perusal of entire facts court below dismissed the
complaint case u/section 203 of Cr.P.C. -
against which informant were preferred a
criminal Revision - revisional court allowed the
revision and remanded the matter to court
below for fresh consideration - consequently,
trial court summoned all the accused - applicant
takes plea that they have a right of being heard
before the revision court while remanding the
matter afresh - court finds that, it is not clear as
whether an opportunity of hearing was afforded
to the applicants or the proper service of notices
upon them was ever effected or not which
should have been explicitly mentioned in the
revisional order - held, order of issuance of
process against the accused applicants cannot
be sustained which causing prejudice to him as
such, the impugned order, allowing the revision
without hearing the accused-applicants, is
6 All. Anuj Kumar Pandey & Ors. Vs. State of U.P. & Anr.
577
vulnerable in law - hence, applicant is allowed -
matter is remanded back to the revision court to
pass a fresh order in accordance with law after
hearing the accused applicants, within three
months.
(Para - 9, 10, 11)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

1.
Manharibhai
Muljibhai
Kakadia
Vs
Shaileshbhai Monhanbhai Patel (2012 vol. 10
SCC 517),

2. Jagannath Verma Vs St. of UP & ors.
(Criminal Misc. Case NO. 3778/2012 decided on
Dt. 23.09.2014.

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard learned counsel for the
applicants, learned AGA for the State and
perused the record. None is present on
behalf of the private respondent.

2. By means of this application,
applicant has prayed for quashing of the
order dated 9.12.2016, passed by learned
Addl. Sessions Judge, Court No. 5,
Shahjahanpur in Criminal Revision No. 91
of 2016 and the summoning order dated
20.7.2017 passed in Case No. 3659 of 2013
by CJM, Shahjahanpur under Sections 498A,304-B IPC and Section 4 of the D. P. Act
as well as further proceedings of Complaint
Case No. 3659 of 2013, under Sections
498-A,304-B IPC and Section 4 of the D. P.
Act, P.S. Sindhauli, District Shahjahanpur.

3. Brief facts of the case are that on the
FIR dated 19.5.2013 lodged by opposite
party no. 2 on the basis of application under
Section 156(3) Cr.P.C. investigation was
carried out and the Investigating Officer
after recording the statements of the
witnesses and the informant as well as the
victim, submitted final report in the matter
on 2.6.2013. Thereafter protest petition was
filed by the informant upon which learned
Magistrate rejected the final report and
registered the complaint and after recording
the statement of the complainant/informant
and his witnesses said to have been
recorded under Section 200/202 Cr.P.C. and
after considering the entire facts and
circumstances of the case as well as
veracity of the allegations dismissed the
complaint under Section 203 Cr.P.C. vide
order dated 6.4.2016 on the ground that
there is no reason to disbelieve the dying
declaration of the victim and the Tehsildar,
concerned, who had recorded her dying
declaration. Aggrieved by the said order,
informant/complainant
filed
criminal
revision No. 91 of 2016, which was
allowed by the revisional court vide order
dated 9.12.2016 and the matter was
remanded back to the concerned Magistrate
for fresh consideration after hearing the
complainant/opposite party on the point of
summoning. Thereafter, learned Magistrate
vide order dated 20.7.2017 summoned all
the accused applicants to face trial under
Section 498-A,304-B IPC. It is this order
which is subject matter of challenge before
this Court.

4. Submission of learned counsel for
the applicants is that the revisional court
has decided the criminal revision in
absence of the opposite party/applicants
and the order was passed without giving
any notice and opportunity of hearing to all
the accused applicants. The grounds taken
by the applicants that if the complainant
filed revision against the order rejecting the
complaint under Section 203 Cr.P.C., the
applicants have a right of being heard and
if opportunity has not been afforded to
them, the order would not be allowed to
sustain. In support of his arguments, he
578 INDIAN LAW REPORTS ALLAHABAD SERIES
relied upon the case of Manharibhai
Muljibhai
Kakadia
v.
Shaileshbhai
Mohanbhai Patel, reported in [(2012) 10
SCC 517].

5. Learned AGA also supported the
aforesaid legal contention of learned
counsel for the applicants.

6. The relevant extract of the Apex
Court's
judgement
in
the
case
of
Manharibhai Muljibhai Kakadia (supra)
is quoted hereunder:-

"46. The legal position is fairly wellsettled that in the proceedings Under
Section
202
of
the
Code
the
accused/suspect is not entitled to be heard
on the question whether the process should
be issued against him or not. As a matter of
law, upto the stage of issuance of process,
the accused cannot claim any right of
hearing.
Section
202
contemplates
postponement of issue of process where the
Magistrate is of an opinion that further
inquiry into the complaint either by himself
is required and he proceeds with the further
inquiry or directs an investigation to be
made by a Police Officer or by such other
person as he thinks fit for the purpose of
deciding whether or not there is sufficient
ground for proceeding. If the Magistrate
finds that there is no sufficient ground for
proceeding
with
the
complaint
and
dismisses the complaint under Section 203
of the Code, the question is whether a
person accused of crime in the complaint
can claim right of hearing in a revision
application preferred by the complainant
against the order of the dismissal of the
complaint. The Parliament being alive to
the legal position that the accused/suspects
are not entitled to be heard at any stage of
the proceedings until issuance of process
Under Section 204, yet in Section 401(2) of
the Code provided that no order in exercise
of the power of the revision shall be made
by the Sessions Judge or the High Court, as
the case may be, to the prejudice of the
accused or the other person unless he had
an opportunity of being heard either
personally or by pleader in his own
defence."

7. The precise issue covered in the
Constitution Bench of the Apex Court in
the aforesaid case was as to whether a
suspect is entitled to hearing by the
revisional court in a revision preferred by
the complainant, challenging an order of
Magistrate, dismissing the complaint under
Section 203 of the Cr.P.C.. It held that once
a criminal complaint is dismissed under
Section 203 Cr.P.C. and a revision is
preferred by the complainant, then in such
a revision, prospective accused becomes a
necessary party in view of the provisions
contained in sub-section (2) of Section 401
of the Cr.P.C.

8. The Full Bench of this Court in the
case of Jagannath Verma v. State of U.P.
and others in Criminal Misc. Case
No.3778/2012 decided on 23.9.2014, while
answering one of the questions, has also
held that in proceedings in revision under
Section 397, the prospective accused or as
the case may be, the person who is
suspected to have been committed the
offence, is entitled to be heard before a
decision is taking in the criminal revision.

9. In view of aforesaid legal position,
it becomes clear that order of issuance of
process against the accused applicants
cannot be sustained since the said accused
was not heard by the Sessions Court before
an order causing prejudice to him was
passed. That prejudice in question is with
regard to the fact that the learned
6 All. United India Insurance Co. Ltd. Vs. Smt. Usha Rani & Ors.
579
Magistrate having rejected the complaint
under Section 203 of the Cr.P.C. and
whereas such a decision being overturned
by
the
Sessions
Court
in
revision,
reopening
the
complaint
against
the
accused, thus the order of the Sessions
Court was causing prejudice to the
applicants and under such circumstances it
was incumbent upon the Sessions Court to
have heard them. Moreover, on going
through the impugned revisional order it is
not clear as to whether an opportunity of
hearing
was
afforded
to
the
applicants/prospective accused persons or
as to whether the proper service of notice
upon the applicants/prospective accused
was ever effected or not and they have been
properly served, which should have been
explicitly mentioned in the revisional order.

10. As such, this Court is of the view
that the order dated 09.12.2016, allowing
the revision of O.P. No.2, without hearing
the accused applicants, was in the teeth of
the aforesaid legal position, rendering the
impugned orders vulnerable in law.

11. Accordingly, the application is
allowed. The orders dated 9.12.2016,
passed by learned Addl. Sessions Judge,
Court No. 5, Shahjahanpur in Criminal
Revision No. 91 of 2016 and the
summoning order dated 20.7.2017 passed
in Case No. 3659 of 2013 by CJM,
Shahjahanpur under Sections 498-A,304-B
IPC and Section 4 of the D. P. Act are
hereby quashed. Matter is remanded back
to revisional court to pass a fresh order in
accordance with law after hearing the
accused applicants, as expeditiously as
possible, preferably within 3 months from
the date of receipt of this order.

12. Let office intimate the court
concerned of this order forthwith.
----------
(2023) 6 ILRA 579
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal from Order No. 63 of 1997

United India Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Usha Rani & Ors. ...Respondents

Counsel for the Appellant:
Ms. Aarushi Khare, Sri Vinay Kumar Khare (Sr.
Adv.)

Counsel for the Respondents:
Sri Virendra Pal Singh, Sri K. Singh, Sri Prem
Babu Verma, Sri Shyamji Gaur

A. Civil Law - Motor Vehicles Act, 1988Section

173-Challenge
to-Award
of
compensation-Negligence-A
person
who
either contributes or author of the accident
would be liable for his contribution to the
accident having taken place-Deceased was
not the author or co-author of accidentAlso not not proved that driving licence
was fake-Deceased was a pillion rider on
the motor-cycle and it was tractor's driver
who was held to be solely negligent for
accident-Rate of interest being higher side,
modified accordingly-Appeal allowed.(Para
10 to 13)

The appeal partly allowed. (E-6)

List of Cases cited:
1. Bajaj Allianz Gen. Ins. Co. Ltd. Vs Smt Renu
Singh & ors.. FAFO No. 1818 of 2012

2. Rylands Vs Fletcher (1868) 3 HL (LR) 330

3. Jacob Mathew Vs St. of Punj. (2005) 0 ACJ
SC 1840