# Chandan Mishra @ Shailesh Mishra v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 558
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-21
- **Case number:** Criminal Appeal (Defective) No. 1431 of 2023
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandan-mishra-shailesh-mishra-v-state-of-u-p-ors-54662
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173(2) & 375, -
Indian Penal Code, 1860 - Section 354-A -
The Protection of Children from Sexual
Offences Act, 2012 - Sections 11 & 12 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)X - Appeals - against Conviction
and Sentence - written complaint - FIR -
offence of Sexual assault and attempt to rape of
a minor girl Child - Investigation - Final report
u/s 173(2) Cr.P.C. - Cognizance - Summoning
Order - Bail Granted - Charges framed -
Application to plead guilty - Request for
concluding the Trial - conviction - sentencing -
Application for release from custody - Dismissed
11 All. Chandan Mishra @ Shailesh Mishra Vs. State of U.P. & Ors.
559
- on the ground, sentence does not contain
concession for concurrent running of Sentences
- Appeal filed - Court finds that, ordinarily,
Sentences for different offences related to one
Incident run concurrently - if not, Trial Court
must record reasons for consecutive Sentences
- Rigours of Section 375 Cr.P.C. barring Appeal
not strictly applicable in instant case -
Resultantly, Appeal Partly Allowed - Impugned
Judgment of conviction modified, Accordingly
(Para - 17, 18, 19)

Appeal partly allowed. (E-11)

## Text

558 INDIAN LAW REPORTS ALLAHABAD SERIES
committee and was duly aware of the facts
and circumstances of the said report and
accordingly, the argument of learned
counsel for petitioner that there was
absence of subjective satisfaction is clearly
not made out in the peculiar facts of the
present case.

15. Apart from the above, this Court
has examined the fact that the petitioner has
been inflicted with censure entry in 2007
and five annual increments were withheld
in the 2010 and again in the year 2012,
censure entry was awarded in his character
roll. The aforesaid entries clearly indicate
that there was sufficient material before the
screening committee to conclude that the
petitioner
was
a
deadwood
and
accordingly, provision of Regulation 56 of
the Financial Hand Book 2 to 4 were
clearly applicable in the case of the
petitioner.

16. In light of the above, no other
ground
was
urged
in
assailing
the
impugned order, accordingly, the petition
being devoid of merits is hereby dismissed.

17. It has been submitted by learned
counsel for petitioner that due to pendency
of the present writ petition, even admissible
dues of the petitioner of his compulsory
retirement has also not been given by the
State Government.

18. There is no doubt even if the
government servant is compulsory retired,
he is certainly entitled for all service dues
for which he is entitled as per rules.
Accordingly, liberty is given to the
petitioner to move a fresh representation to
respondent no. 3 i.e. Sub Divisional Officer
Mitauli, District Lakhimpur Kheri giving
all the details of the dues to which he is
entitled. Let the representation be given to
the respondent no. 3 within a period of
three weeks. In case such a representation
is given, the respondent no. 3 shall consider
and decide the same by a reasoned and
speaking
order
within
six
weeks
thereafter. In case he finds that the
petitioner is entitled to the claims made by
him in the said representation, he shall
ensure that the same are disbursed to the
petitioner with expedition say within a
period of one month thereafter.
----------
(2024) 11 ILRA 558
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.11.2024

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Appeal (Defective) No. 1431 of 2023

Chandan Mishra @ Shailesh Mishra
 ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
A.T. Pandey

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 173(2) & 375, -
Indian Penal Code, 1860 - Section 354-A -
The Protection of Children from Sexual
Offences Act, 2012 - Sections 11 & 12 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)X - Appeals - against Conviction
and Sentence - written complaint - FIR -
offence of Sexual assault and attempt to rape of
a minor girl Child - Investigation - Final report
u/s 173(2) Cr.P.C. - Cognizance - Summoning
Order - Bail Granted - Charges framed -
Application to plead guilty - Request for
concluding the Trial - conviction - sentencing -
Application for release from custody - Dismissed
11 All. Chandan Mishra @ Shailesh Mishra Vs. State of U.P. & Ors.
559
- on the ground, sentence does not contain
concession for concurrent running of Sentences
- Appeal filed - Court finds that, ordinarily,
Sentences for different offences related to one
Incident run concurrently - if not, Trial Court
must record reasons for consecutive Sentences
- Rigours of Section 375 Cr.P.C. barring Appeal
not strictly applicable in instant case -
Resultantly, Appeal Partly Allowed - Impugned
Judgment of conviction modified, Accordingly
(Para - 17, 18, 19)

Appeal partly allowed. (E-11)

(Delivered by Hon'ble Manoj Bajaj, J.)

1. Appellant-Chandan Mishra @
Shailesh Mishra has filed this appeal to
challenge the judgment of conviction and
order of sentence dated 13th July, 2022
passed by Special Judge (P.O.C.S.O. Act),
Court No. 1, Gorakhpur in Special Sessions
Case No. 32 of 2013, arising out of Case
Crime No. 394 of 2013, under Section
354A IPC, Section 11/12 Protection of
Children from Sexual Offences Act, 2012
and Section 3(1)X Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, registered at Police Station
Shahpur, District Gorakhpur.

2. The facts leading to the above
appeal are that upon a written complaint by
Dinesh
Chaudhary
(complainant),
the
above mentioned FIR was registered with
the
allegations
that
on
29.5.2013,
Wednesday at 4:30 pm, Chandan Mishra,
neighbourer took away his daughter to his
house,
where
he
molested
her
and
attempted to commit rape. On hearing the
screams of the victim, few persons reached
at the place of occurrence, but the accused
managed to escape. As per complainant, the
occurrence was witnessed by Rajesh
Chaudhary, Vishal and others. Broadly on
these allegations, the above noticed case
crime was registered.
3. After registration of the case, the
investigation was carried out and the
statements of the victim and eye-witnesses
were recorded and the site plan of the place
of occurrence was also prepared. Finally,
upon completion of investigation, a final
report under Section 173(2) Cr.P.C. was
filed in the court of competent jurisdiction,
thereby sending the accused-appellant to
face trial for alleged commission of
offences punishable under Section 354A
IPC, Section 11/12 Protection of Children
from Sexual Offences Act, 2012 and
Section 3(1)X Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989.

4. The trial court analyzed the final
report on 26.6.2019 and took cognizance of
the offences, and summoned the accused.
Pursuant to the said order, the accusedappellant appeared, who was released on
bail vide order dated 30th July, 2015.
Thereafter, the trial court framed charges
against the accused for alleged commission
of offences punishable under Section 354A
IPC, Section 11/12 Protection of Children
from Sexual Offences Act, 2012 and
Section 3(1)X Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989, but the accused pleaded not
guilty and chose to face trial.

5. The prosecution examined its
two witnesses PW-1 Dinesh Chaudhary and
PW-2 mother of the victim, however,
during the pendency of the trial, the
accused-appellant moved an application on
28th June, 2022 to plead guilty in respect of
the alleged offences and prayed for
concluding the trial.

6. The trial court vide impugned
judgment dated 13th July, 2022 proceeded
to convict him and imposed sentence of
560 INDIAN LAW REPORTS ALLAHABAD SERIES
two years rigorous imprisonment for
commission of offence punishable under
Section 354A IPC with a fine of Rs. 5000/-,
and in default further ordered him to
undergo simple imprisonment for six
months. Similarly, for offence under
Section 11/12 Protection of Children from
Sexual Offences Act, 2012, the convict was
awarded a sentence of two years rigorous
imprisonment with a fine of Rs. 3000/-, and
in default, he was ordered to undergo
further simple imprisonment for three
months, whereas in respect of offence
punishable under Section 3(1)X Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities)
Act,
1989
rigorous
imprisonment for a period of one year was
awarded with a fine of Rs. 2000/-, and in
default, the convict was ordered to undergo
three months simple imprisonment.

7. Later on, an application was
moved by the appellant-convict in August,
2023 before the trial court, who prayed for
his release from custody as the period of
imprisonment
awarded
vide
judgment
dated 13th July, 2022 stood served.
However,
the
said
application
was
dismissed by the trial court vide order dated
30.8.2023 on the ground that the impugned
order of sentence does not contain the
concession that the sentences awarded to
the convict shall run concurrently, and the
total sentence(s) awarded to the convict
would run consecutively and shall be
completed by July, 2026.

8. Feeling aggrieved against the
said decision dated 30th August, 2023, the
appellant has preferred this appeal to
challenge the impugned judgment of
conviction as well as the order of sentence
dated 13th July, 2022.

9. Alongwith the appeal, a separate
application seeking condonation of delay of
460 days in filing the appeal has also been
moved,
wherein
vide
order
dated
26.2.2024, notice was issued to the
opposite party nos. 2 and 4. As per office
report dated 20th July, 2024, the opposite
party no. 2 had refused to accept notice.

10. Learned counsel for the
appellant has argued that the alleged
occurrence took place in the year 2013 and
after commencement of trial, the accusedappellant
participated
in
the
said
proceedings, who during the pendency of
the trial pleaded guilty and considering the
stand of the accused, the trial court had
convicted him vide judgment dated 13th
July, 2022. Learned counsel has further
referred to the impugned judgment of
conviction and order of sentence to contend
that while sentencing the convict for
commission of different offences, the
respective period of imprisonment awarded
was not ordered to run concurrently,
therefore, the convict having undergone
more
period
of
imprisonment,
than
awarded, is still languishing in jail.

11. Learned counsel further argued
that the order dated 30.8.2023 also suffers
from illegality, as the trial court has failed
to appreciate the background of the case
while refusing to modify the sentence part,
therefore, the appellant has approached this
Court through the above statutory appeal,
which is beyond the period of limitation.
Learned counsel submits that since the
appellant had been pursuing his alternative
remedy, therefore, delay in filing the appeal
be condoned and the sentence awarded by
the trial court vide order dated 13.7.2022 be
modified.
11 All. Chandan Mishra @ Shailesh Mishra Vs. State of U.P. & Ors.
561
12. In response, learned State
Counsel has argued that once the judgment
of
conviction
is
founded
upon
the
confession of the accused, therefore, it is
amply clear that the accused was well
aware
of
the
consequences
of
his
confession. According to the learned State
Counsel, the convict cannot maintain this
appeal, much less to challenge the sentence
part alone. Learned State Counsel has
further drawn the attention of the Court to
the order dated 30th August, 2023 and
argued that the trial court has clearly
observed that the total sentence imposed
upon the convict is five years alongwith
fine, and in default, he has been further
directed to undergo a period of twelve
months simple imprisonment. Thus, it
cannot be said that the sentence awarded to
the convict stands served by him. Learned
State Counsel prays that the appeal be
dismissed as the appellant has also failed to
give a justifiable explanation for filing the
appeal after a long delay of 460 days.

13. Learned counsel for the parties
have been heard and with their assistance,
the case file has been perused.

14. No doubt, the appellantconvict during the trial proceedings had
moved an application to plead guilty and
consequently, he was convicted by the trial
court for commission of the above noticed
offences. But, a perusal of the judgment of
conviction dated 13th July, 2022 reveals
that the trial court had noticed the conduct
of the accused, who pleaded guilty, and
further calculated his undergone period of
two years in custody as an under trial, and
clearly decided to punish him with a
sentence of imprisonment of already
undergone period. In addition, learned trial
court chose to burden him with fine also,
but erroneously in the sentence part, while
imposing the substantive sentence of two
years and one year for different offences,
the trial court omitted to direct that the
sentences awarded to the accused-convict
shall run concurrently.

15. Though the accused had later
on
moved
an
application
seeking
modification, but the same was also
dismissed. Therefore, keeping in view the
above background, this Court does not find
any merit in the objection raised by the
learned State Counsel that the appellant has
failed to explain the delay in filing the
appeal. In the considered opinion of this
Court, the delay in filing the appeal has
been sufficiently explained. Therefore, the
same is hereby condoned. Accordingly, the
application is allowed.

16. During the course of hearing,
the custody certificate dated 29th February,
2024 issued by the Senior Superintendent,
District Jail, Gorakhpur has also been
produced, and according to it, upto 28th
February, 2024, the convict had undergone
actual period of one year, eight months and
seventeen days in custody, therefore, by
now, the convict has undergone a period of
approximately two and half years.

17. Ordinarily, the sentences
awarded to the convict in respect of
commission of different offences are
directed to run concurrently, if, the said
offences relate to one incident/transaction,
but while refusing to exercise such a
discretion in favour of the convict, the trial
court is required to record reasons for
imposing
consecutive
sentences.
The
impugned order dated 13th July, 2022 does
not contain any such reason, whereas on
the contrary, there is a specific observation
by the trial court that the accused deserves
to be punished only with the period already
562 INDIAN LAW REPORTS ALLAHABAD SERIES
undergone by him in prison. Thus, in this
background, the rigours of Section 375
Cr.P.C. barring appeal in cases where
accused pleads guilty would not be strictly
applicable, as the impugned judgment of
conviction and order of sentence dated 13th
July, 2022 contain conflicting findings
relating to the sentence part.

18. As a result, the objection raised
by the learned State Counsel regarding
maintainability of the appeal is also hereby
rejected. In view of the above discussion,
this Court has no hesitation in holding that
the impugned sentence part contained in
the judgment dated 13.7.2022 suffers from
grave illegality and calls for interference by
this
Court
in
exercise
of
appellate
jurisdiction.

19. Resultantly, the appeal is party
allowed
and
while
maintaining
the
judgment of conviction dated 13th July,
2022, the impugned order on sentence is
modified to the extent that all the sentences
imposed upon the appellant-convict for
commission of offences punishable under
Section 354A IPC, Section 11/12 Protection
of Children from Sexual Offences Act,
2012 and Section 3(1)X Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities)
Act,
1989
shall
run
concurrently.
----------
(2024) 11 ILRA 562
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ -C No. 8197 of 2024

Manoj Kumar Sharma ...Petitioner
Versus
U.O.I. & Anr. ...Respondents

Counsel for the Petitioner:
Ram Lal Mishra

Counsel for the Respondents:
A.S.G.I., Anadi Krishna Narayana, Harish Kumar
Yadav, Ishan Shishu, Sandeep Kumar Singh

A. Banking Law - Succession - Banking
Regulation Act, 1949 - Section 45ZA -
Section 45-ZA(2) merely puts the nominee
in the shoes of the depositor after his
death and clothes him with the exclusive
right to receive the money lying in the
account. It gives him all the rights of the
depositor so far as the depositor's account
is concerned. But it by no stretch of
imagination
makes
the
nominee
the
owner of the money lying in the account.
The Banking Regulation Act is enacted to
consolidate and amend the law relating to
banking. It is in no way concerned with the
question of succession. All the monies receivable
by the nominee by virtue of S. 45-ZA(2) would,
therefore, form part of the estate of the
deceased depositor and devolve according to
the rule of succession to which the depositor
may be governed. (Para 8)

The petitioner's main argument is that the
petitioner being the nominee, the petitioner is
entitled to receive the money in the FDRs as per
Section 45ZA. (Para 5)

The petitioner has a right to obtain the money
from the bank as he is a nominee. However, this
money which is received by the petitioner would
be subject to the succession laws and the heirs
of the deceased would have a right to the said
amount in accordance with law. (Para 11)

Writ petition disposed of. (E-4)

Precedent followed:

Ram Chander Talwar & anr. Vs Devender Kumar
Talwar & ors., (2010) 10 SCC 671 (Para 8)

(Delivered by Hon'ble Shekhar B. Saraf, J.
& Hon'ble Vipin Chandra Dixit, J.)