# Arun Kumar Gupta v. State of U.P. & Anr - **Citation:** (2021) 2 ILRA 174 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-02-23 - **Case number:** U/S 482/378/407 No. 3104 of 2019 - **Bench:** Mrs. Saroj Yadav - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-gupta-v-state-of-u-p-anr-46728 - **Pages:** 4 ## Headnote (A) Criminal Law - Indian Penal Code, 1860 - Sections 465 - punishment for forgery , Sections 420 - Cheating and dishonestly inducing deliverey of property, Sections 468 - forgery for cheating, Sections 471 - using as genuine a forged document or electronic record , Sections 504 - intentional insult with intent to provoke breach of the peace , Sections 506 - punishment for criminal intimidation, Sections 406 - punishment for criminal breach of trust - Criminal Court after passing the judgment or final order disposing the case can not alter or review the same except to correct the clerical or arithmetical error . (Para - 8) Petitioner (complainant) lodged an F.I.R. against the (opposite party no. 2) & two other persons - for not giving possession of flat purchased from opposite no. 2 - investigation - charge sheet submitted - cognizance taken - opposite party no. 2 filed a petition under Section 482 Cr.P.C. against that order - Court stayed the coercive measures against the accused-applicant - direction to pass the order afresh - passed a fresh order taking cognizance - summoned the accused-applicant to face trial - fixed date for appearance of the accused - accused did not appear on the said date - on the next date moved an application for recall of the order - Learned C.J.M. on the application so moved passed an order dated 17.10.2018 staying the order dated 14.08.2018 passed by him.(Para -2) HELD:- By the impugned order, learned Chief Judicial Magistrate has stayed the order of taking cognizance passed by him on 14.08.2018, which is not permissible under the provisions of Code of Criminal Procedure, hence the impugned order deserves to be quashed. (Para - 8) Application u/s 482 Cr.P.C. allowed. (E-6) List of Cases cited:- Sanjeev Kapoor Vs Chandana Kapoor & ors., Criminal Appeal No. 286 of 2020 (Arising out of SLP (CRL) No. 1041 of 2020) ## Text 174 INDIAN LAW REPORTS ALLAHABAD SERIES and legally running, therefore, the extraordinary inherent power of the court under Section 482 Cr.P.C. cannot be exercised to fulfill his purpose, the application is therefore, REJECTED and disposed of finally. 19. The Deputy Registrar (Criminal) is directed to communicate the order of Court immediately through e-mail to the trial court through the District and Session Judge, Ambedkar Nagar in addition to ordinary course of communication forthwith. ---------- (2021)02ILR A174 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 23.02.2021 BEFORE THE HON'BLE MRS. SAROJ YADAV, J. U/S 482/378/407 No. 3104 of 2019 Arun Kumar Gupta ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Amit Chaudhary, Sukumar Srivastava Counsel for the Opposite Parties: G.A., Arun Sinha, Siddhartha Sinha (A) Criminal Law - Indian Penal Code, 1860 - Sections 465 - punishment for forgery , Sections 420 - Cheating and dishonestly inducing deliverey of property, Sections 468 - forgery for cheating, Sections 471 - using as genuine a forged document or electronic record , Sections 504 - intentional insult with intent to provoke breach of the peace , Sections 506 - punishment for criminal intimidation, Sections 406 - punishment for criminal breach of trust - Criminal Court after passing the judgment or final order disposing the case can not alter or review the same except to correct the clerical or arithmetical error . (Para - 8) Petitioner (complainant) lodged an F.I.R. against the (opposite party no. 2) & two other persons - for not giving possession of flat purchased from opposite no. 2 - investigation - charge sheet submitted - cognizance taken - opposite party no. 2 filed a petition under Section 482 Cr.P.C. against that order - Court stayed the coercive measures against the accused-applicant - direction to pass the order afresh - passed a fresh order taking cognizance - summoned the accused-applicant to face trial - fixed date for appearance of the accused - accused did not appear on the said date - on the next date moved an application for recall of the order - Learned C.J.M. on the application so moved passed an order dated 17.10.2018 staying the order dated 14.08.2018 passed by him.(Para -2) HELD:- By the impugned order, learned Chief Judicial Magistrate has stayed the order of taking cognizance passed by him on 14.08.2018, which is not permissible under the provisions of Code of Criminal Procedure, hence the impugned order deserves to be quashed. (Para - 8) Application u/s 482 Cr.P.C. allowed. (E-6) List of Cases cited:- Sanjeev Kapoor Vs Chandana Kapoor & ors., Criminal Appeal No. 286 of 2020 (Arising out of SLP (CRL) No. 1041 of 2020) (Delivered by Hon'ble Mrs. Saroj Yadav, J.) 1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) has been filed by the petitioner Arun Kumar Gupta (complainant) for quashing the order dated 17.10.2018 passed in Criminal Case No. 0101210/2014, arising out of Case Crime No. 515/2014, (State of UP Versus Alok Kumar Gupta), under Sections 465, 420, 2 All. Arun Kumar Gupta Vs. State of U.P. & Anr. 175 468, 471, 504, 506, 406 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), Police Station Hazratganj, District Lucknow and seeking a direction for early disposal of the matter pending before the Chief Judicial Magistrate, Lucknow. 2. In short, the facts necessary for disposal of this petition are as follows: The petitioner purchased a Flat i.e. Flat No. 405 in the Lotus Petals Apartments, 6/1-B Mall Avenue, Lucknow from the opposite party no. 2 (Alok Kumar Gupta) in the year 2011 and the same has been registered in the name of the petitioner (complainant). The petitioner, however, did not take possession of the said Flat after execution of the sale deed as some finishing work was still left to be done. That as per the assurance of opposite party no. 2-Alok Kumar Gupta, was to be completed by him in a short span of time. In the month of August, 2014, the petitioner/ (complainant) found that the said Flat was in illegal possession of two persons namely Sri Achal Mehrotra and Sri Rajiv Bajpai. The petitioner approached the opposite party no. 2 (Alok Kumar Gupta) and requested him to hand over the possession of the aforesaid Flat but he refused to do so. On further inquiry, the petitioner came to know that Alok Kumar Gupta (opposite party no. 2), Sri Achal Mehrotra and Sri Rajiv Bajpai have connived to defraud the petitioner (complainant). In such circumstances, the petitioner (complainant) lodged an F.I.R. against the above mentioned persons, registered as Case Crime No. 515/2014, under Sections 465, 420, 468, 471, 504, 506, 406 IPC, Police Station Hazratganj, District Lucknow. After investigation, charge sheet was submitted by the Investigating Officer and learned Chief Judicial Magistrate, Lucknow took cognizance vide order dated 01.12.2014. Against that order, the opposite party no. 2- Alok Kumar Gupta filed a petition under Section 482 Cr.P.C. bearing Criminal Misc. Case No. 2066 of 2015 (Alok Gupta Vs. State of U.P and others) before this Court and this Court vide order dated 23.07.2018 was pleased to stay the coercive measures against the accused-applicant and quash the order dated 01.12.2014 passed by the learned Chief Judicial Magistrate and directed the learned Chief Judicial Magistrate, Lucknow to pass the order afresh. In compliance of the order of the High Court dated 23.07.2018, learned Chief Judicial Magistrate, Lucknow passed a fresh order dated 14.08.2018 taking cognizance and summoned the accusedapplicant to face trial for the offence under Sections 465, 420, 468, 471, 504, 506, 406 IPC and fixed the date 10th September, 2018 for appearance of the accused. The accused did not appear on the said date but on the next date fixed i.e. 15.10.2018, he moved an application for recall of the order dated 14.08.2018 of taking cognizance. Learned C.J.M. Lucknow on the application so moved passed an order dated 17.10.2018 staying the order dated 14.08.2018 passed by him. Learned Chief Judicial Magistrate, Lucknow also ordered for recalling of the process issued against the accused till further orders. Being aggrieved with the said order, the present petition has been filed by the petitioner (complainant). In this petition, an inteirm order was passed by the coordinate bench of this Court vide order dated 25.04.2019 staying the operation and implementation of order dated 17.10.2018 and proceedings in Criminal Case No. 0101210/2014, arising out of Case Crime No. 515/2014, under Sections 465, 420, 468, 471, 504, 506, 406 IPC, Police Station Hazratganj, 176 INDIAN LAW REPORTS ALLAHABAD SERIES Lucknow. Again, the order so passed was modified by this Court on 30.05.2019 to the following effect: "Till the next date of listing, the operation and implementation of order dated 17.10.2018 shall remain stayed." 3. Heard the counsel for both the sides. 4. Learned counsel appearing on behalf of the petitioner (complainant) argued that the impugned order dated 17.10.2018 passed by the learned Chief Judicial Magistrate, Lucknow is illegal, arbitrary and without jurisdiction because in the Cr.P.C., there is no provision enabling the Magistrate to stay its own final order. Section 362 Cr.P.C. prohibits that no Court shall alter or review any judgment or final order disposing a case after signing the same except to correct a clerical or arithmetical error, hence, the impugned order should be quashed. 5. On the other hand, Shri Siddhartha Sinha, learned counsel appearing on behalf of the opposite party no. 2 argued that in the order of taking cognizance dated 14.08.2018, wrong fact was mentioned that the accused applicant moved an application and he was heard, so the opposite party no. 2 moved an application for recall of order and learned Magistrate stayed the execution of the order because the order was illegal, hence this petition should be dismissed. 6. Considered the submission of both the sides and perused the record. As far as the alteration or review of the order disposing the case or judgment is concerned, Section 362 Cr.P.C. provides as under: "362. Court not to alter judgment.-- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 7. In the case of Sanjeev Kapoor Versus Chandana Kapoor & Others, Criminal Appeal No. 286 of 2020 (Arising out of SLP (CRL) No. 1041 of 2020), Hon'ble Apex Court has held as follows: "The judgments of this Court as noted above, summarised the law to the effect that criminal justice delivery system does not cloth criminal court with power to alter or review the judgment or final order disposing the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal Court or passing final order disposing the case the Court becomes functus officio and any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law. " 8. It is settled legal position that Criminal Court after passing the judgment or final order disposing the case can not alter or review the same except to correct the clerical or arithmetical error. By the impugned order, learned Chief Judicial Magistrate has stayed the order of taking cognizance passed by him on 14.08.2018, which is not permissible under the provisions of Code of Criminal Procedure, hence the impugned order deserves to be quashed. The order dated 17.10.2018 passed by the learned Chief Judicial Magistrate, Lucknow is hereby quashed and this petition under Section 482 Cr.P.C. is, accordingly, allowed. 9. As in the present matter F.I.R. lodged and charge-sheet was filed in the year 2014 and the case is still at initial stage, after a lapse of about six years, the 2 All. Alok Gupta Vs. State of U.P. & Anr. 177 concerned Court below is directed to expedite the proceedings of the case pending before it in accordance with law. ---------- (2021)02ILR A177 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 23.02.2021 BEFORE THE HON'BLE MRS. SAROJ YADAV, J. U/S 482/378/407 No. 4500 of 2019 Alok Gupta ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Siddhartha Sinha Counsel for the Opposite Parties: G.A. (A) Criminal Law - Indian Penal Code, 1860 - Sections 406 - Punishment for criminal breach of trust, Sections 420 - cheating and dishonestly inducing delivery of property, Sections 465 - punishment for forgery, Sections 468 - forgery for purpose of cheating, Sections 471 - using as genuine a forged document or eloectronic record, Sections 504 - intentional insult with intent to provoke breach of the peace, Sections 506 - punishment for criminal intimidation. (B) Criminal law - Code of criminal procedure, 1973 - Section 190 - Cognizance of offences by Magistrates - at the time of taking cognizance there is no requirement of providing opportunity of hearing to either party - Only satisfaction of the concerned Magistrate is required after application of legal mind. (Para -10) Petition has been filed for quashing of the order dated 14.08.2018 - summoning the accused-applicant to face the trial - pending in the Court of Chief Judicial Magistrate - ground - Chief Judicial Magistrate has not applied its mind and also violated the principle of natural justice. HELD:- Accused-applicant has no right to be heard at the time of taking cognizance, so no prejudice has been caused to the petitioner/accused. There is no justification to interfere under Section 482 Cr.P.C. and to quash the impugned order dated 14.08.2018 passed Chief Judicial Magistrate. (Para - 11,14) Application u/s 482 Cr.P.C. dismissed. (E-6) List of Cases cited:- 1. Mahesh Chand & etc Vs St. of Raj. & etc, , AIR 1986 Raj. 58 2. Bhushan Kumar & anr. Vs State (NCT of Delhi) & anr. , AIR (SC) 1747 (2012) (Delivered by Hon'ble Mrs. Saroj Yadav, J.) 1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) has been filed for quashing of the order dated 14.08.2018 summoning the accused-applicant to face the trial, passed in Case Crime No. 515/2014, under Sections 406/420/465/468/471/504/506 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), Police Station Hazratganj, District Lucknow pending in the Court of learned Chief Judicial Magistrate, Lucknow. 2. Heard Shri Siddhartha Sinha, learned counsel for the petitioner/accused, Shri Amit Chaudhary, learned counsel appearing on behalf of the opposite party no. 2 and learned A.G.A. for the State. 3. In short, the facts necessary for disposal of this petition are as follows:-