# Ashok Chaturvedi, Chairman and others v. State of U.P. and another

- **Citation:** (2003) 3 ILRA 713
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-24
- **Case number:** Criminal Misc. Application No. 4729 of 2000
- **Bench:** R.K. Dash
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-chaturvedi-chairman-and-others-v-state-of-u-p-and-another-40178
- **Pages:** 7

## Headnote

Criminal procedure code-Section 482-bar
of second revision-whether application
u/s
482
Cr.P.C.
maintainable
when
revision against order of magistrate
dismissed-in circumstances of the caseheld-yes.

Held: Para 3

Order
of
the
Magistrate
taking
cognizance of the offence having been
dismissed in revision can move this court
under section 482 Cr. P .C. Judicial
opinion of various High Courts on this
aspect is not unanimous.

Code of Criminal Procedure Section 482,
Indian
Penal
Code
Section
304-Apetition for quashing of proceedingorder of Magistrate issuing process
should show application of judicial mind,
though he is not required to give
reasons.
1994 (4) SCC 655 referred to.

Held: Para 11

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714 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
It is true, law does not envisage that the
Magistrate should record the reasons of
his satisfaction before issuing process,
but scrutiny of the order must show that
he applied judicial mind to find whether
prima-facie case is made out of the
complaint
or
other
materials
for
proceeding against the accused.
case law discussed:
AIR 1977 SC-987
1997 Cr.L.J. 1519
1994 (4) SCC 655
AIR 1992 SC 1815
2002 (6) SCC 670

## Text

3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another
713
daily expenditure of Rs.16,000/-. In case,
the
respondent
no.4
expresses
his
reluctance on agreeing to such term and
condition of the reduced remuneration,
the respondent no.1 would be at liberty to
engage some other suitable counsel to
prosecute the trial

14. The record dealing with the
appointment of respondent no.4 as Special
Public Prosecutor in the aforesaid murder
trial of Nitish Khatara also shows that the
appointment of Sri Saxena was made in
pursuance of an endorsement/direction of
Principal Secretary to the Chief Minister.
This endorsement was made on the letter
of Sri Saxena dated 23.10.2002. It appears
that without making any scrutiny as to the
suitability
of
the
person
for
such
appointment
through
the
Law
Department, the Government Orders
dated 24.10.2002 were taken out. It is
unusual and we accordingly suggest that
the Government should not adopt such
method of appointment by ignoring all the
norms.

15. However, looking to the facts
and circumstances of the present case that
the
respondent
no.4
possess
due
qualification and experience for his such
appointment as Special Public Prosecutor
in a sensational murder case, we are not
inclined
to
quash
his
appointment/Notification
dated
26.11.2002 (Annexure-2 to the writ
petition) and the writ petition as such
having no merits, is hereby dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2003

BEFORE
THE HON'BLE R.K. DASH, J.

Criminal Misc. Application No. 4729 of 2000

Ashok Chaturvedi, Chairman and others

 ...Applicants
Versus
State of U.P. and another ...Respondents

Counsel for the Applicants:
Sri S.S. Nigam
Sri Ramesh Sinha

Counsel for the Respondents:
Sri Dilip Gupta
Sri Rajiv Gupta
AGA.

Criminal procedure code-Section 482-bar
of second revision-whether application
u/s
482
Cr.P.C.
maintainable
when
revision against order of magistrate
dismissed-in circumstances of the caseheld-yes.

Held: Para 3

Order
of
the
Magistrate
taking
cognizance of the offence having been
dismissed in revision can move this court
under section 482 Cr. P .C. Judicial
opinion of various High Courts on this
aspect is not unanimous.

Code of Criminal Procedure Section 482,
Indian
Penal
Code
Section
304-Apetition for quashing of proceedingorder of Magistrate issuing process
should show application of judicial mind,
though he is not required to give
reasons.
1994 (4) SCC 655 referred to.

Held: Para 11

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714 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
It is true, law does not envisage that the
Magistrate should record the reasons of
his satisfaction before issuing process,
but scrutiny of the order must show that
he applied judicial mind to find whether
prima-facie case is made out of the
complaint
or
other
materials
for
proceeding against the accused.
case law discussed:
AIR 1977 SC-987
1997 Cr.L.J. 1519
1994 (4) SCC 655
AIR 1992 SC 1815
2002 (6) SCC 670

(Delivered by Hon'ble R.K. Dash, J.)

1. Naresh Kumar Shukla (hereinafter
referred to as 'the deceased'), a chemical
engineer joined as a trainee on 28.4.1996
with M/s. Flex Industries Limited, Noida
in the newly created district of Gautam
Budh Nagar. He in course of employment
in the industry met with an accident
resulting in his death. Respondent no.2,
father of the deceased filed a complaint
before the Chief Judicial Magistrate,
Ghaziabad alleging that the petitioners
being the officials of the said industry had
assigned creation of a plant imported from
France and asked the deceased to work
over time. After the tragic incident the
complainant visited the premises of the
industry and came to know that heavy
steel roller which was kept at a height of
1.5 meter supported by two wooden
stakes on both sides suddenly feel down
on the deceased who was sitting on the
floor and making some adjustment of the
bracket of the roller. The deceased was
immediately rushed to a Nur Singh Home
where he breathed his last. Further case
of the complaint is that on being asked as
to how the deceased was asked to sit and
work on a small and narrow place,
accused Anil Gupta and Mahabir Saran
Confessed that the accident took place
due to rash and negligent act of all the
accused persons and requested to pardon
them. The complainant approached the
District
Magistrate,
Ghaziabad
and
requested the police to enquire into the
incident but it was to of no effect. It was
thereafter that he moved the court by
filing complaint. Learned Magistrate upon
examination of the complainant and the
witness produced by him took cognizance
of the offence under Section 304-A.I.P.C.
and Summoned all the accused persons.
Thereupon, the accused persons filed a
petition to recall the order of cognizance
and the same having been rejected, they
approached the Sessions Court in revision
which also did not yield desired result.
Aggrieved by the order of the revisional
court, they filed present petition under
Section 482 Cr.P.C. seeking quashing of
the proceedings in the com[plaint case
bearing no.627 of 1996 pending in the
court
of
Chief
Judicial
Magistrate,
Ghaziabad.

2. Sri Gopal S. Chaturvedi, learned
Senior
Counsel
appearing
for
the
petitioner contended that even if the
allegations made in the complaint are
taken in entirety and on their face value
do not make out any offence under
Section 304-A I.P.C. and since the
deceased was a young engineer and met
with tragic death due to accident in the
factory, the learned Magistrate made
emotional approach to the case and
without there being sufficient ground for
proceeding against the accused persons
took cognizance of the aforesaid offence
and issued process for their appearance. It
is true, while taking cognizance of the
offence, the Magistrate is not required to
give reasons, but his order must show that
he applied judicial mind to fined if primafacie case is disclosed from the averments
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3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another
715
made in the complaint and the statements
of the complainant and his witness if any,
for proceeding against the accused. In the
case on hand, the impugned order,
annexure-4 does not reveal that the
learned
Magistrate
made
a judicial
approach to the case and was satisfied
from the available materials that primafacie case under Section 304-A I.P.C. is
made out. In that view of the matter, it
was urged that the criminal complaint
being the outcome of anger of the
complainant, order of the Magistrate
taking cognizance of the offence under
Section 304-A I.P.C. and consequent
order issuing notice to the accused
persons should be quashed.

Per contra, learned counsel appearing
for the complainant would strenuously
urge that law does not mandate that the
Magistrate should pass a detailed order
about his satisfaction before taking
cognizance of the offence and therefore,
the
impugned
summoning
order,
annexure-4 which is the based on
satisfaction of judicial conscience cannot
be scraped or rejected. As to the factual
aspect of the case, he submitted that since
death of the deceased was as a result of
the accident, occurred due to rash or
negligent act of the accused persons and
at this stage when cognizance of the
offence has only been taken, the Court
should be loathe to interfere with the
impugned order and bring the criminal
proceeding to a halt in exercise of
inherent power.

3. Before adverting to the arguments
advanced by the counsel appearing for the
parties, at the outset it is desirable to
decide the question, though not raised by
the complainant whether the petitioners,
whose revision against the order of the
Magistrate taking cognizance of the
offence having been dismissed in revision
can move this court under section 482 Cr.
P .C. Judicial opinion of various High
Courts on this aspect is not unanimous.
Some say that in view of the legislative
intention enacting Section 397 (3) second
revision in the garb of a petition under
Section 482 Cr. P.C. is not maintainable.
Others
have
taken
contrary
view
observing that where the order of the subordinate court is wrong and illegal and if
allowed to remain grave injustice would
ensue, the Court for the ends of justice
should invoke inherent power and quash
the said order. Experience shows that
sometimes Sessions Judge's order is
wrong, illegal and perverse. So, if the said
order is not interfered with when
challenged in view of the embargo placed
by
Section
397(3),
it
will
cause
irreparable injury to the person aggrieved
and consequently justice will be a
casualty. The question has been settled at
rest by the Supreme Court in the case of
Krishnan Vs Krishnaveni, AIR 1997 SC
987 = 1997 Cr. L. J. 1519 Where the
Court observed thus:

"Ordinarily, when revision has been
barred by Section 397 (3) of the Code, a
person -accused/complainant-cannot be
allowed to take recourse to the revision to
the High Court under Section 397 (1) or
under inherent powers of the High Court
under Section 482 of the Code since it
may amount to circumvention of the
provisions of Section 397 (3) or Section
397 (2) of the Code. It is seen that the
High Court has suo moto power under
Section 401 and continuous supervisory
jurisdiction under Section 483 of the
Code. So, when the High Court on
examination of the record finds that there
is grave miscarriage of justice or abuse of
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716 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the process of the courts or the required
statutory procedure has not been complied
with or there is failure of justice of order
passed or sentence imposed by the
magistrate requires correction, it is but the
duty of the High Court to have it
corrected at the inception lest grave
miscarriage of justice would ensure. It is,
therefore, to meet the ends of justice or to
prevent abuse of the process that the High
Court is preserved with inherent power
and would be justified, under such
circumstances, to exercise the inherent
power and in an appropriate case even
revisional power under Section 397(1)
read with Section 401 of the Code......"

4. So far the present is concerned,
for the reasons to follow I would old that
notwithstanding
the
bar
of
second
revision as envisaged in Section 397 (3),
it is a fit case where this Court in exercise
of inherent power should upset the order
of the Magistrate taking cognizance of the
offence under Section 304-A I. P.C. and
quash the criminal proceedings.

5. The grievance of the petitioners in
the present case is that since the facts
narrated in the complaint do not constitute
any offence, more so an offence under
Section 304-A I.P.C. and this aspect of
the matter having not been considered
both by the Magistrate as well as the
revisional court, this Court would be well
within its jurisdiction to consider the same
and quash the impugned order consequent
criminal proceedings in exercise of
inherent power.

6. Inherent powers are in the nature
of extra- ordinary power to be used
sparingly for achieving the object as
mentioned in Section 482 Cr. P.C. It is the
settled position of law that such power
should be exercised sparingly and in
rarest of rare case. On a bare reading of
the FIR or the complaint where the Court
finds that no offence is made out and
continuance of the criminal proceeding
will cause unnecessary harassment to the
accused, it would be justified to exercise
inherent power and bring the proceeding
to a close. Reference in this context may
be made to a decision of the Supreme
Court in the case of State of Bihar Vs
Murad Ali Khan, 1994 (4) SCC 655
where the Court observed:

"It is trite that jurisdiction under
Section 482 Cr. P.C., which saves the
inherent power of the High Court, to
make such orders as may be necessary to
prevent abuse of the process of any court
or otherwise to secure the ends of justice,
has to be exercised sparingly and with
circumspection.
In
exercising
that
jurisdiction the High Court Should not
embark upon an enquiry whether the
allegations in the complaint are likely to
be established by evidence or not. That is
the function of the trial Magistrate when
the evidence comes before him. Though it
is neither possible nor advisable to lay
down any inflexible rules to regulate that
jurisdiction, one thing, however, appears
clear and it is that when the High Court is
called upon to exercise this jurisdiction to
quash a proceeding at the stage of the
Magistrate taking cognizance of an
offence the High Court is guided by the
allegations, whether those allegations, set
out in the complaint or the charge-sheet
do not in law constitute or spell out any
offence an that resort to criminal
proceeding would, in the circumstances,
amount to an abuse of the process of the
court or not."

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3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another
717
7. Keeping in mind the aforesaid
dictum of law, it is necessary to elude to
the allegations made in the complaint
petition. Admittedly, the complainant was
not an witness to the incident. As alleged,
he alongwith others visited the site where
the accident occurred. In paragraph 12 of
the complaint petition, it is stated:

"There the complainant and his
companions were shown a steel roller
which was kept at height of 1.5 meter
supported by two wooden stakes on both
sides the weight of that roller as mention
on is 1.8 tones. There was no blood spot
on the site. There was no crack or damage
on the floor. The entire site of accident
was cleaned and the entire evidence of the
accident were removed/washed away the
accused persons.

That on the site the accused no. 5 and
7 Mr. Gupta pointed towards the same
roller which was kept on wooden stakes
and its weight was 1.8 tones. Further Mr.
Gupta informed that Naresh was sitting on
the floor and making some adjustments
relating to mounting of the roller on the
left bracket. He said that the bracket on
Naresh's left side broke down and pointed
his finger towards a broken steel bracket
which appeared to have been welded and
fabricated out of the solid steel bars. The
complainant and his companions notices
that the broken bracket had a welded joint
which appeared to be a fresh welding. As
per Mr. Gupta the body of Late Naresh
was crushed by this heavy steel roller
which fell down as the left bracket broke
down on which this roller was kept..."

8. Even assuming that the aforesaid
allegations are true, yet it cannot be said
by any stretch of imagination that the
accident and consequent death of the
deceased was as result of any rash or
negligent act of the accused persons. To
bring a case within the purview of Section
304-A I.P.C., it must be shown that the
act was a rash or negligent. An act would
be construed 'rush', if is done without due
care or caution. 'Negligent act' means, an
act done without exercise of reasonable
and proper care and precaution to guard
against any injury.

9. In the case on hand, the case as
narrated in the complaint does not
remotely suggest that the accused person
had neglected their duty and failed to take
proper care and precaution in the factory
premises resulting in the accident. Had
the learned Magistrate taken care to fined
out from the complaint petition as well as
the statement of the complainant as to if a
prima-facie offence under Section 304-A
I.P.C. is made out, he would have been
slow to take cognizance of the said
offence and issued process against the
accused persons.

10. It is the right of everyone to
Bering an offender to justice; equally it is
right of every person that he is not
unnecessarily harassed by false and
frivolous persecution. It cannot be lost
sight of that a person passes thought
mental agony when asked to face a
criminal charge and if the offence is nonbail able, he is sent to prison till bail
granted by the court. Besides, long drawn
adjudicatory
process
makes
him
financially
cripple
which
ultimately
affects is in jeopardy, the duty of the court
becomes onerous. As has been well said,
judicial process should not be an
instrument of oppression or needless
harassment.

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718 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
11. Law confers a right on a person
wronged either to approach the police or
file a complaint in the court seeking legal
action the person who violated law. When
a complaint is filed, the Magistrate on
examining the complainant and his
witnesses, if any present, should be
satisfied whether there is sufficient
ground for proceeding against the person
complained of. It is true, law does not
envisage that the Magistrate should record
the reasons of his satisfaction before
issuing process, but scrutiny of the order
must show that he applied judicial mind
to find whether prima-facie case is made
out of the complaint or other materials for
proceeding against the accused. In this
context reference may be made to a
decision of the Supreme Court in the case
of Punjab National Bank Vs. Surendra
Prasad Sinha, AIR 992 SC 1815 where
the Court observed---

"There lies responsibility and duty
on the Magistracy to find whether the
concerned accused should be legally
responsible for the offence charged for
only on satisfying that the law costs
liability or creates offence against the
juristic person or the person impleaded,
there only process would be issued. At
that stage the Court would be circumspect
and judicious in exercising discretion and
should take all the relevant facts and
circumstances into consideration before
issuing process lest it would be an
instrument in the hands of the private
complainant as vendetta to harass the
persons
needlessly.
Vindication
of
majesty of justice and maintenance of law
and order in the society are the prime
object of criminal justice but it would not
be
the
means
to
wreak
personal
vengeance xxxxxxx"

12. Similar view was also taken in
the later decision in the case of K.M.
Mathew vs. K.A. Abraham, (2002) 6 SCC
670

Coming to the case on hand, the
impugned order which is cryptic in nature
does not show the required satisfaction of
the learned Magistrate while taking
cognizance of the offence under Section
304-A I.P.C.

13. Regard being had to the facts
and circumstances of the case as
discussed above, I am of the considered
opinion that there being no case under
Section 304-A I.P.C., the order of the
Magistrate taking cognizance of the said
offence is illegal and unsustainable in
law. In such view of the matter, the said
order and the consequent criminal
proceeding in complaint case no.627 of
1996 are quashed. However, when the
complainant has lost his son, a young
engineer,
which
loss
cannot
be
compensated by any means, in my
opinion, for doing complete justice, the
accused
persons,
petitioners
here-in
should pay a sum of rupees five lacs to
the complainant as a solace. It is
accordingly, so ordered. The amount shall
be paid within four weeks hence. In the
event, payment is not made within the
stipulated time, on approach being made
by
the
complainant,
the
District
Magistrate, Gautam Budh Nagar shall
recover the said amount as arrear of land
revenue and pay the same to him.

14. The criminal misc. application
thus succeeds and is allowed with above
observation and direction.
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3 All] Surendra Kumar V. State of U.P. and others
719
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 33347 of 2003

Surendra Kumar

 ...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri A.K. Upadhyay
Sri R.S. Srivastava

Counsel for the Respondents:
S.C.

Constitution
of
India
Article
226
Realisation of Goonda Tax by Anti Social
elements-no such tax known in the eye
of law. Demand of such gunda tax is thus
wholly illegal and arbitrary. Directions
given to the State Authorities to protect
the
citizens
from
such
anti
social
elements.

Held- Para 5

No such tax is known to the law as
gunda tax. We have heard of income tax,
sales tax, house tax etc. but this is a
totally new and illegal phenomenon
which has appeared in society, and
unless this gunda tax disappears we will
hold the Government authorities to task
for such illegal demands. Such gunda tax
reminds one of the 'protection money'
demanded by the Mafia in America.

(Delivered by Hon'ble M. Katju, J.)

1. This petition discloses an
alarming state of affairs prevailing in the
State of Uttar Pradesh. It appears that all
kinds of ruffians, gundas, hooligans and
other anti social elements are at large in
our society and are harassing and
terrorizing the law abiding citizens. If this
trend is not stamped out with an iron hand
the situation will get out of control and
there will be total lawlessness and jungle
raj in the State.

2. The petitioner has alleged that he
is a tenant of a shop in Agra City under
Police Station Aitmadaula, Agra for
which he pays Rs.2000/= per month to the
landlord on the basis of registered rent
deed vide Annexure-1 to the writ petition.
The petitioner carries on the business of
jute bags in the aforesaid premises and
also resides there.

3. It is alleged in paragraph 6 of the
petition that on 2.7.2003 when the
petitioner was carrying on his business in
the said premises the respondents no. 7 to
18 came to his shop with the common
object of realizing gunda tax and
demanded a sum of Rs. 1000/= and in
case of non-payment of the same
threatened to evict him and also make him
suffer dire consequences. Since the
petitioner did not pay the aforesaid gunda
tax as demanded by the respondent no. 7
to 18 they threatened to evict the
petitioner forcibly from the premises and
hence the petitioner on 2.7.03 went to
lodge an FIR but the respondent no.5, the
Station House Officer, Police Station
Aitmadaula, Agra refused to lodge the
FIR and hence the petitioner gave a
written complaint dated 3.7.03 to the SSP,
Agra vide Annexure-4. It is alleged in
paragraph 9 of the writ petition that since
the petitioner did not pay the gunda tax as
demanded by the respondent no. 7 to 18
they again on 16.7.03 forcibly entered
into his rented premises and demanded
gunda tax from the petitioner again. The
petitioner then sent a complaint by means
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