# Ayush Anurag v. State of U.P. & Anr

- **Citation:** (2022) 7 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-18
- **Case number:** Application U/S 482 No. 19717 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ayush-anurag-v-state-of-u-p-anr-48902
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1860-Sections 328, 376, 504,
506 & 3⁄4 POCSO Act - IT Act-Section 66quashing of entire proceedings-In the
present case POCSO Act had leveled
against the applicant but in support of the
age proof of O.P. Private Party no.
document
has
been
filed
whereas
according
to
prosecution
case
the
Opposite Private party has taken the
admission after passing the XII Class-the
High school and intermediate certificates
are the most relevant documents for
examining and ascertaining the age of the
girl-The exercise of power u/s 311 Cr.P.C.
should be resorted to only with the object
496 INDIAN LAW REPORTS ALLAHABAD SERIES
of finding out the truth or obtaining
proper proof for such facts, which will lead
to a just and correct decision of the caseThe impugned order suffers from illegality
as it is only to delay the trial.(Para 1 to 9)

B. The exercise of the power u/s 311
Cr.P.C. cannot be dubbed as filling in a
lacuna in a prosecution case, unless the
facts and circumstances of the case make
it apparent that the exercise of power by
the Court would result in causing serious
prejudice to the accused, resulting in
miscarriage of justice. (Para 4,5)

The application is allowed. (E-6)

## Text

7 All. Ayush Anurag Vs. State of U.P. & Anr.
495

(2) A copy of the information as
recorded under sub-section (1) shall be
given forthwith, free of cost, to the
informant.

(3) Any person, aggrieved by a
refusal on the part of an officer in charge
of a police station to record the information
referred to in sub-section (1) may send the
substance of such information, in writing
and by post, to the Superintendent of Police
concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate
the case himself or direct an investigation
to
be made
by any police
officer
subordinate to him, in the manner provided
by this Code, and such officer shall have all
the powers of an officer in charge of the
police station in relation to that offence."

17. The reading of said rules makes it
clear that the language of Rule 5 and that of
Section 154 Cr.P.C. is akin. Since Rule 5
talks of information to the Officer Incharge of a police station, the said
provisions can never be strictly applied on
a Special Judge who has been empowered
to pass appropriate orders on an application
moved under Section 156(3) Cr.P.C.

18. Thus, this Court differs with the
view taken in the case of Soni Devi
(Supra) in its second question as decided as
to whether it is correct ?

19. Let the matter be placed before a
Division
Bench
of
this
Court
for
appropriate decision on the same.

20. Since there is a difference from
the view taken in the case of Soni Devi
(Supra) by this Court which is the only
argument raised by learned counsel for the
applicant and there is a prayer for staying
the effect and operation of the impugned
order, the same is not allowed.

21. Let the matter be placed before
Honourable
The
Chief
Justice
for
nominating a Bench for deciding the issue
in question.
----------
(2022)07ILR A495
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482 No. 19717 of 2021

Ayush Anurag ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Lalit Kumar, Sri Kamalesh Kumar
Nishad, Sri V.P. Srivastava (Senior Adv.)

Counsel for the Opposite Parties:
G.A., Sri Awadhesh Rai

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1860-Sections 328, 376, 504,
506 & 3⁄4 POCSO Act - IT Act-Section 66quashing of entire proceedings-In the
present case POCSO Act had leveled
against the applicant but in support of the
age proof of O.P. Private Party no.
document
has
been
filed
whereas
according
to
prosecution
case
the
Opposite Private party has taken the
admission after passing the XII Class-the
High school and intermediate certificates
are the most relevant documents for
examining and ascertaining the age of the
girl-The exercise of power u/s 311 Cr.P.C.
should be resorted to only with the object
496 INDIAN LAW REPORTS ALLAHABAD SERIES
of finding out the truth or obtaining
proper proof for such facts, which will lead
to a just and correct decision of the caseThe impugned order suffers from illegality
as it is only to delay the trial.(Para 1 to 9)

B. The exercise of the power u/s 311
Cr.P.C. cannot be dubbed as filling in a
lacuna in a prosecution case, unless the
facts and circumstances of the case make
it apparent that the exercise of power by
the Court would result in causing serious
prejudice to the accused, resulting in
miscarriage of justice. (Para 4,5)

The application is allowed. (E-6)
(Delivered by Hon'ble Gautam Chowdhary,
J.)

1. Heard Sri V.P. Srivaastava, Senior
Advocate assisted by Sri Kamalesh Kumar
Nishrad, learned counsel for the applicant,
learned A.G.A. for the State, Sri Awadhesh
Rai, learned counsel for O.P. No. 2 and
perused the record.

2. This application has been filed with
a prayer to quash the order dated 4.9.2021
passed by Special Judge (POCSO Act)/
Additional Sessions Judge, Ghaziabad in
S.T. No. 192 of 2019 arising out of Case
Crime NO. 1592 of 2016, under sections
328, 376, 504, 506 IPC and section 3/4
POCSO and section 66 I.T. Act , P.S.
Sihani Gate, Ghaziabad and also to quash
the order dated 12.11.2021 passed by
learned Addl. Sessions Judge (Rape and
POCSO Act), Court NO. 2, Ghaziabad.

3. It is contended by learned counsel
for the applicant that O.P.No. 2 had lodged
an F.I.R. on 3.10.2016 as case crime No.
712 of 2016, under sections 328, 376, 504,
506 IPC. P.S. Kotwali Ghaziabad, District
Ghaziabad wherein it has been wrongly
stated by O.P. No. 2 that prior to this F.I.R.
her father has also lodged an F.I.R. in
District Varanasi. Thereafter the matter has
been investigated and charge sheet has
been submitted on 4.3.217 whereupon the
cognizance has been taken on 3.4.2017
against the applicant. It is next argued by
learned counsel for the applicant that in the
present case POCSO Act has also been
levelled against the applicant but in support
of age proof of O.P. No. 2 no document has
been
filed
whereas
according
to
prosecution case the O.P.No. 2 has taken
the admission after passing the XII Class.

4. Now, the question before this court
is that Section 311 Cr..P.C. provides as, "
311. Power to summon material witness,
or examine person present. Any Court
may, at any stage of any inquiry, trial or
other
proceeding
under
this
Code,
summon any person as a witness, or
examine any person in attendance, though
not summoned as a witness, or. recall and
re- examine any person already examined;
and the Court shall summon and examine
or recall and re- examine any such person
if his evidence appears to it to be essential
to the just decision of the case. Witnesses
can be examined at any time, but he can
not be permitted in order to fill up the
lacuna in the prosecution case.

5. In support of his contention,
learned counsel for the applicant has placed
the reliance of Rajaram Prasad Yadav
Vs. State of Bihar and another AIR 2013
SC 3081, which is reproduced as under:

"while
dealing
with
an
application under Section 311 Cr.P.C. read
along with Section 138 of the Evidence Act,
we feel the following principles will have to
be borne in mind by the Courts:

a) Whether the Court is right in
thinking that the new evidence is needed by
7 All. Ayush Anurag Vs. State of U.P. & Anr.
497
it? Whether the evidence sought to be led in
under Section 311 is noted by the Court for
a just decision of a case?

b) The exercise of the widest
discretionary power under Section 311
Cr.P.C. should ensure that the judgment
should not be rendered on inchoate,
inconclusive speculative presentation of
facts, as thereby the ends of justice would
be defeated.

c) If evidence of any witness
appears to the Court to be essential to the
just decision of the case, it is the power of
the Court to summon and examine or recall
and re-examine any such person.

d) The exercise of power under
Section 311 Cr.P.C. should be resorted to
only with the object of finding out the truth
or obtaining proper proof for such facts,
which will lead to a just and correct
decision of the case.

e) The exercise of the said power
cannot be dubbed as filling in a lacuna in a
prosecution case, unless the facts and
circumstances of the case make it apparent
that the exercise of power by the Court
would result in causing serious prejudice to
the accused, resulting in miscarriage of
justice."

6. Learned counsel for the applicant
has also place the reliance of Md.
Ghouseuddin Vs. Syed Riazul Hussain
and
another
2021
Supreme
(SC)
858,paragraph No. 5 of the judgement is
quoted below:

"Having heard learned counsel
for the parties and going through the
record, we are of the considered opinion
that even if the question as to the
jurisdiction of the High Court need not be
over-emphasized, the fact remains that the
Trial Court had given sound and tangible
reasons for rejecting the application for
summoning of the document(s)- moved at
such a belated stage and without any
justification for such relief. The High Court
has completely glossed over this aspect in
the impugned judgment. The right to
summon document(s) indeed, is available
but that has to be exercised when the trial
is in progress and not when the trial is
completed, including after the statement of
accused under section 313 of Cr.P.C. had
been recorded. The efficacy of the trial can
not be whittled down by such belated
application."

7. Learned A.G.A. for the State as
well as learned counsel for O.P. No. 2 state
that as the section 311 Cr.P.C. provides that
it is the satisfaction of the Court that he can
recall any evidence at any time. There is no
illegally or irregularity in the impugned
orders, therefore, the same may not be
quashed.

8. Considering the facts, circumstances
of the case, submissions made by learned
counsel for the applicant, learned A.G.A. and
learned counsel for O.P. No. 2. The
impugned orders suffer from illegality as it is
only to delay the trial. The High School and
Intermediate certificates are the most relevant
documents for examining and ascertaining
the age of the girl. Under such circumstances,
the impugned orders dated 4.9.2021 passed
by Special Judge (POCSO Act)/ Additional
Sessions Judge, Ghaziabad as well as order
dated 12.11.2021 passed by learned Addl.
Sessions Judge (Rape and POCSO Act),
Court No. 2, Ghaziabad are hereby quashed.

9. Accordingly, this application is
allowed.
498 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)07ILR A498
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2022

BEFORE

THE HON'BLE SYED AFTAB HUASAIN RIZVI, J.

Application U/S 482 No. 20081 of 2021

Lav Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mohammad Sakir, Sri Pankaj Kumar
Gupta

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 &
128-challenge
to
-recovery
warrant- for recovery of arrears
the
application
is
maintainable
only to the extent of one year
prior to the filing of application -
the maintenance holder cannot be
permitted
to
accumulate
the
maintenance for a period more
than 12 months and as such no
application
for
execution
of
maintenance
order
can
be
entertained for a period exceeding
12 months immediately preceding
the
date
of
application-no
recovery warrant could have been
issued against the applicant for
recovery of arrears of maintenance
which has become time barred-the
impugned order is not sustainable
and is liable to be set aside. (Par a
1 to 8)

The application is allowed. (E-6)
(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
applicant, learned AGA for the State and
perused the material on record.

2. This criminal misc. application U/s
482 Cr.P.C. is filed to quash the impugned
order dated 05.08.2021 passed by Principal
Judge Family Court, Bijnor in case no.868
of 2019 (Sudha Devi vs. Lav Kumar) under
Section 128 Cr.P.C. By the impugned
order, the learned court below has allowed
the application U/s 128 Cr.P.C. filed by
opposite party no.2 for recovery of arrears
of
Rs.36,000/-
from
06.01.2011
to
06.01.2013
and
consequently
issued
recovery warrant.

3. The opposite party no.2 instituted a
proceeding under Section 125 Cr.P.C. for
maintenance
which
was
allowed
on
19.01.2000 and Rs. 500/- per month
maintenance allowance was granted in
favour of the opposite party no.2. Later on
she moved an application No.71 of 2005,
under Section 127 Cr.P.C. for enhancement
of maintenance and this application was
allowed on 25.11.2009 and maintenance
was enhanced from Rs. 500/- to Rs. 3000/-
per month. Thereafter the opposite party
no.2 moved an application no.14 of 2013
under Section 128 Cr.P.C. for recovery of
arrears of maintenance from 06.01.2011 to
06.01.2013 i.e. 24 months @ Rs.3000/- per
month total amounting to Rs. 72,000/- on
12.02.2013.
Learned
Magistrate
after
considering
the
entire
evidence
and
material on record allowed this application
in part for recovery of entire one year
maintenance allowance of Rs.36,000/- and
refused to recover the remaining 12 months
arrears of Rs.36,000/- observing that it has
become time barred. The opposite party
no.2 again moved an application No.406 of
2014 U/s 128 Cr.P.C. for recovery of
arrears of maintenance allowance from