# Chhote Lal Sharma v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-18
- **Case number:** Matters Under Article 227 No. 8439 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhote-lal-sharma-v-state-of-u-p-ors-49345
- **Pages:** 6

## Headnote

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction -
Indian Penal Code, 1860 - 307, 302 and 34
- Supreme Court's verdicts are binding on
other courts and judicial authorities, and
they have the authority of law - If
interpretation is needed, the court can
question policy and determine the real
intention or object behind the words used
in a verdict - known as "mischief rule of
interpretation,"
-
where
the
court
suppresses mischief and adds force and
life to the "cure" -Judges must understand
the object behind the verdict to ensure its
validity.(Para -12)

F.I.R. lodged by respondent no.2 - investigated
and charge-sheet filed - investigation was
handed over to CBCID - contention - despite
stay order of High Court - CBCID filed a chargesheet - Chief Judicial Magistrate took cognizance
and issued non-bailable warrants and process
under sections 82 and 83 Cr.P.C. - applying
judgement
of
Supreme
Court
in
Asian
Resurfacing of Road Agency Pvt. Ltd. vs.
Central Bureau of Investigation. (Para - 2)

HELD:- Judgment (Asian Resurfacing of
Road Agency Pvt. Ltd. ) uses the term
"pending trial" in paragraph 36, but the Apex
Court intended to apply this direction in all civil
and criminal cases, regardless of the stage of
the proceeding. Court's ruling applies wherever
stay is granted, whether during investigation,
inquiry, committal, or after the trial has
commenced in a criminal case. Word "trial" does
not mean the Supreme Court's judgment only
applies when the framing of charge stage has
reached, as such an interpretation would fail the
judgment's purpose. (Para - 13)

Petition
dismissed.
(E-7)
10 All. Chhote Lal Sharma Vs. State of U.P. & Ors.
433
LIST OF CASES CITED:-

## Text

432 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 191, 193, 199, and 209 of the
Indian Penal Code,1860.
DEPONENT
Verification

Verified
at
___on
this
___day
of_____that the contents of the above
affidavit
are
true
to
my
personal
knowledge, no part of it is false and
nothing material has been concealed
therefrom. I further verify that the copies of
the documents filed along with the affidavit
are the copies of the originals.
DEPONENT

Enclosure-III

Sr.
No.
Date of
Order
Brief Description of the
Court Proceedings
1.

2.

3.

4.

Note by the District Judge:

1. Whether guidelines issued from
para 87 to 90 of the judgment, are complied
with or not?,

2. If not, mention the details of such
guidelines which have not been complied
with by the Family Court Judge.

3. Comments, if any in this regard.

*The columns may be added or
deleted as per requirement.
----------
(2023) 10 ILRA 432
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2023
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 8439 of 2023
(Criminal)
Chhote Lal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Singh, Sushma Singh

Counsel for the Respondents:
G.A.

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction -
Indian Penal Code, 1860 - 307, 302 and 34
- Supreme Court's verdicts are binding on
other courts and judicial authorities, and
they have the authority of law - If
interpretation is needed, the court can
question policy and determine the real
intention or object behind the words used
in a verdict - known as "mischief rule of
interpretation,"
-
where
the
court
suppresses mischief and adds force and
life to the "cure" -Judges must understand
the object behind the verdict to ensure its
validity.(Para -12)

F.I.R. lodged by respondent no.2 - investigated
and charge-sheet filed - investigation was
handed over to CBCID - contention - despite
stay order of High Court - CBCID filed a chargesheet - Chief Judicial Magistrate took cognizance
and issued non-bailable warrants and process
under sections 82 and 83 Cr.P.C. - applying
judgement
of
Supreme
Court
in
Asian
Resurfacing of Road Agency Pvt. Ltd. vs.
Central Bureau of Investigation. (Para - 2)

HELD:- Judgment (Asian Resurfacing of
Road Agency Pvt. Ltd. ) uses the term
"pending trial" in paragraph 36, but the Apex
Court intended to apply this direction in all civil
and criminal cases, regardless of the stage of
the proceeding. Court's ruling applies wherever
stay is granted, whether during investigation,
inquiry, committal, or after the trial has
commenced in a criminal case. Word "trial" does
not mean the Supreme Court's judgment only
applies when the framing of charge stage has
reached, as such an interpretation would fail the
judgment's purpose. (Para - 13)

Petition
dismissed.
(E-7)
10 All. Chhote Lal Sharma Vs. State of U.P. & Ors.
433
LIST OF CASES CITED:-

1. Asian Resurfacing of Road Agency Pvt. Ltd.
Vs C.B.I., Criminal Appeal Nos.1375-1376 of
2013

2. Imtiaz Ahmad Vs St. of U.P., (2012) 2 SCC
688

3. Bengal Immunity Co. Ltd. Vs St. of Bihar,
1955-2 SCR 603

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Manish Singh, learned
counsel for the petitioner and learned A.G.A.
for the State.

2. This civil misc. petition under Article
227 of the Constitution of India has been filed
by the petitioner- Chhote Lal Sharma with a
prayer to stay the effect and operation of
order dated 21.11.2022 passed by learned
Chief Judicial Magistrate, Baghpat in Case
No.4065 of 2014 "State vs. Chhote Lal
Sharma), under sections- 307, 302 and 34
I.P.C., Police Station- Kotwali Baghpat,
District- Baghpat.

3. The relevant facts related to this
petition are as below:-

(i) On the basis of an F.I.R. lodged
by respondent no.2- Laxmi Chandra, being
Case Crime No.44 of 2014, under sections-
147, 148, 149, 302, 307/34 I.P.C., the matter
was investigated and a charge-sheet was filed
on 11.04.2014. Later on, investigation was
handed over to CBCID vide order dated
05.05.2014.

(ii) As per contention of the
petitioner, despite the stay order of the High
Court passed in Criminal Misc. Writ Petition
No.12096 of 2014, the CBCID filed a chargesheet under sections- 302, 307 read with
section- 34 I.P.C.

(iii) The Chief Judicial Magistrate,
Baghpat vide order dated 30.07.2014 took
cognizance and issued non-bailable warrants
and process under sections 82 and 83 Cr.P.C.

(iv) The aforesaid order of taking
cognizance dated 30.07.2014 was challenged
by filing an Application (under section 482
Cr.P.C.) No.30842 of 2014, in which the High
Court passed an order on 08.08.2014 staying
the effect and operation of the order dated
30.07.2014, which is as below:-

"Heard learned counsel for the
applicant and leaned A.G.A. for the State.

The present application has been
filed against the charge sheet filed by
C.B.C.I.D. on 26.07.2014 C.B. No. 69 of
2014 in case Crime No. 44 of 2014, under
Sections 302, 307, 34 I.P.C., P.S. Bagpat,
District Bagpat pending before C.J.M.,
Bagpat.

It has been contended by learned
counsel for the applicant that earlier a
writ petition was filed before this Court
being Criminal Misc. Writ Petition No.
12096 of 2014, in which an interim order
was passed which reads as follows:

"In the meantime as local police
has already investigated the matter and
has
already
submitted
charge-sheet
against Mahipal @ Goti and Pradeep @
Pappu and thereafter and it appears that
ignoring the parameter that has been
settled for effectuating transfer, the
transfer order of investigation has been
passed, this Court prima facie finds that in
order to favour accused persons such an
order has been passed, in view of this, till
the next date of listing, operation of the
order dated 05.05.2014 to be kept in
abeyance and no further action be taken
pursuant
thereto
and
the
earlier
Investigating Agency would be free to
proceed the matter."
434 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned
counsel
for
the
applicant submits that in spite of very
specific order passed by this Court, the
C.B.C.I.D. filed a charge sheet on the
basis of which cognizance has been taken
on 30.07.2014 against the applicant and
NBW and proceedings under Sections
82/83 Cr.P.C. have been initiated.

In view of very specific order
passed by this Court in the writ petition,
mentioned above, this Court has been left
with no option but to stay the effect and
operation of the impugned order dated
30.07.2014.

Three weeks time is granted to
opposite party no. 2 as well as learned
A.G.A. to file counter affidavit. Rejoinder
affidavit may be filed within two weeks
thereafter.

List this case on 15.09.2014.

Till
then,
the
effect
and
operation of order dated 30.07.2014 shall
remain stayed."

(v) The Court of Chief Judicial
Magistrate,
Baghpat,
applying
the
judgement of Supreme Court in Asian
Resurfacing of Road Agency Pvt. Ltd. vs.
Central Bureau of Investigation, decided
on
28.03.2018
in
Criminal
Appeal
Nos.1375-1376 of 2013 proceeded with the
case and passed an order in the light of the
above judgment on 21.11.2022, which is as
below:-

"पत्रावली पेश हुई। प्रस्तुत वाि की कायावाही िा०
उच्च न्द्यायालय के आिेशानुसार कई वषों से स्र्थमगत चल रही है।

माननीय सर्वोच्च न्यायालय की वर्ववि व्यर्वस्था
Asian Resurfacing of Road Agency Pvt.
Ltd. & Anr. Vs Central Bureau of
Investigation विवमनल अपील सं०- 13751376/13 में पारित आदेश वदनांवकत 27.03.2018 के
िािले िें िा० उच्चति न्द्यायालय ने यह ित व्यक्त मकया है मक 06
िाह से अमिक मकसी भी अमिक मकसी भी िािले की कायावाही को
स्र्थमगत नहीं मकया जा सकता। 06 िाह उपरािंत कायावाही प्रारम्भ
की जानी चामहए।

इसी सिंबिंि िें िा० उच्च न्द्यायालय द्वारा सरकुलर
जारी कर अिीनस्र्थ न्द्यायालयों को आिेमशत भी मकया गया है। अतः
िाननीय उच्चति न्द्यायालय व उच्च न्द्यायालय के मनिेशों के
आलोक िें वाि की कायावाही आरम्भ की जाती है। अमभयुक्त के
मवरुद्ध BW मनयत मतमर्थ 21.12.2022 के मलए जारी हो।"

4. Now, the petitioner is before this
Court challenging the impugned order
dated 21.11.2022 with a prayer to quash the
same.

5. The main contention of the
petitioner is that the law laid down by the
Supreme Court in Asian Resurfacing of
Road Agency Pvt. Ltd. (supra) shall
apply only to cases, where the trial has
actually commenced, in the sense that
Court has proceeded to frame the charge. It
is argued that the trial cannot be deemed as
commenced unless charge has already been
framed; the law laid down by the Supreme
Court shall not apply at the stage of enquiry
or investigation, which ordinarily preceeds
the stage of trial. In this regard, the
petitioner has referred to para- 36 of the
above judgment of the Supreme Court,
which is as below:-

"36.
...............
Mandate
of
speedy justice applies to the PC Act cases
as well as other cases where at trial stage
proceedings are stayed by the higher court
i.e. the High Court or a court below the
High Court, as the case may be. In all
pending matters before the High Courts or
other courts relating to PC Act or all other
civil or criminal cases, where stay of
proceedings
in
a
pending
trial
is
operating, stay will automatically lapse
after six months from today unless
extended by a speaking order on above
parameters. Same course may also be
adopted
by
civil
and
criminal
appellate/revisional
courts
under
the
jurisdiction of the High Courts. The trial
10 All. Chhote Lal Sharma Vs. State of U.P. & Ors.
435
courts may, on expiry of above period,
resume the proceedings without waiting
for any other intimation unless express
order extending stay is produced."

6. In my opinion, only a short
question arises in this case that, whether the
"six months stay" shall apply to all the
pending proceedings or just to cases where
"trial" in its legal sense has commenced? In
order to thrash out the controversy, it will
be useful to look into ratio decidendi which
compelled the Supreme Court to pass such
an order for general application.

7. The Supreme Court, observed in
para- 28 of the judgment in Asian
Resurfacing of Road Agency Pvt. Ltd.
(supra), as below:-

"28. It is well accepted that delay
in a criminal trial, particularly in the PC
Act cases, has deleterious effect on the
administration of justice in which the
society has a vital interest. Delay in trials
affects the faith in Rule of Law and
efficacy of the legal system. It affects
social welfare and development. Even in
civil or tax cases it has been laid down
that power to grant stay has to be
exercised with restraint. Mere prima facie
case is not enough. Party seeking stay
must be put to terms and stay should not
be incentive to delay. The order granting
stay must show application of mind. The
power to grant stay is coupled with
accountability."

8. The Supreme Court further
observed that wherever stay is granted, a
speaking order must be passed showing
that the case was of exceptional nature and
delay on account of stay will not prejudice
the interest of speedy trial in a corruption
case and once stay is granted, the
proceedings should not be adjourned and
should be concluded within two or three
months. Having said no, the Supreme Court
proceeded to make a very important
observation in para- 31, which is as below:-

"31. The wisdom of legislature
and the object of final and expeditious
disposal of a criminal proceeding cannot
be ignored. In exercise of its power the
High Court is to balance the freedom of
an individual on the one hand and
security of the society on the other. Only
in case of patent illegality or want of
jurisdiction the High Court may exercise
its
jurisdiction.
The
acknowledged
experience is that where challenge to an
order framing charge is entertained, the
matter remains pending for long time
which defeats the interest of justice."

9. Certain other observations of the
Supreme Court appear to be quite material
to enable this Court to arrive at the right
conclusion. In para-34 of the judgement,
the data, as referred to in Imtiaz Ahmad
vs. State of U.P., (2012) 2 SCC 688, was
reproduced by the Supreme Court in its
judgment in Asian Resurfacing of Road
Agency Pvt. Ltd. (supra) as below:-

"(a) As high as 9% of the cases
have completed more than twenty years
since the date of stay order.

(b) Roughly 21% of the cases
have completed more than ten years.

(c) Average pendency per case
(counted from the date of stay order till
26-7-2010) works out to be around 7.4
years.

(d) Charge-sheet was found to be
the most prominent stage where the cases
were stayed with almost 32% of the cases
falling under this category. The next two
prominent
stages
are
found
to
be
436 INDIAN LAW REPORTS ALLAHABAD SERIES
'appearance' and 'summons', with each
comprising 19% of the total number of
cases. If 'appearance' and 'summons' are
considered interchangeable, then they
would
collectively
account
for
the
maximum of stay orders."

After noting the above scenario,
the Court directed :

"55. Certain directions are given
to the High Courts for better maintenance
of
the
rule
of
law
and
better
administration of justice: While analysing
the data in aggregated form, this Court
cannot overlook the most important factor
in the administration of justice. The
authority of the High Court to order stay
of investigation pursuant to lodging of
FIR, or trial in deserving cases is
unquestionable. But this Court is of the
view that the exercise of this authority
carries with it the responsibility to
expeditiously dispose of the case. The
power to grant stay of investigation and
trial is a very extraordinary power given to
the High Courts and the same power is to
be exercised sparingly only to prevent an
abuse of the process and to promote the
ends of justice. It is therefore clear that:

(i) Such an extraordinary power
has to be exercised with due caution and
circumspection.

(ii) Once such a power is
exercised, the High Court should not lose
sight of the case where it has exercised its
extraordinary
power
of
staying
investigation and trial."

10. It cannot be, without any reason
that the Supreme Court found it fit to refer
to the data of the old cases in which the
stay was granted. The Supreme Court, in
my view, definitely took into consideration
the fact that one of the reasons contributing
to inordinate delay in disposal of cases and
therefore likely erosion of the faith of
litigant on legal system, was the grant of
stay of proceedings at various stages of a
case,
which
included
stages
of
investigation,
inquiry
and
trial.
The
Supreme Court noted, probably with
dismay, that as much as 32% of the cases
were stayed at the most initial stage i.e.
filing of charge-sheet, 19% of the cases
were stayed at the stage of appearance of
the accused or issuance of summons. Not
only the above, the Supreme Court noted
down that a number of criminal matters
were stayed even before the charge-sheet
was filed i.e. at the stage of investigation,
pursuant to lodging of F.I.R. After noting
down the above important data, the
Supreme Court cautioned the courts that
once the power of "granting stay" is
exercised, the courts should take the
responsibility to expedite the disposal of
the case. The Court further observed that
grant of stay at the stage of investigation or
at the stage of trial is an extra-ordinary
power, which should be exercised sparingly
with due caution and circumspection. In the
background of aforesaid and the mandate
of speedy justice, the Supreme Court noted
down the adverse affects of "court granted
stays going endless" on the administration
of justice in which the society has vital
stakes. Therefore, the Supreme Court
issued a direction that wherever stay is
granted in a proceeding, it shall be deemed
as having lapsed automatically after six
months, unless of course any specific
speaking order has been passed.

11. In Bengal Immunity Co. Ltd. vs.
State of Bihar, 1955-2 SCR 603 at page-
633, the Court observed that "to decide the
true scope of the present Act, therefore we
must have regard to all such factors as can
legitimately be taken into account in
ascertaining the intention of the legislature,
such as the history of the legislation and the
10 All. Sri Ashok Kumar Singh Vs. C.B.I., Scb Lucknow
437
purposes thereof, the mischief which it
intended to suppress and the other
provisions of the statute, and construe the
language of Section- 2(d) in the light of the
indications furnished by them."

12. Every verdict of the Supreme
Court is binding on all the other courts,
tribunals and the authorities exercising
judicial powers. The pronouncement of the
Supreme Court have the authority of law.
When the law pronounced by the Supreme
Court needs any interpretation, the object
behind the same has to be understood.
When there is any doubt, regarding actual
meanings to be attached to the words used
in a verdict, the Judges are allowed to enter
into question of policy. The Court may go
behind the phrases/words used to find out
the real intention or the object. The Court
has to see that behind giving such a
direction what sort of mischief was
intended to be curbed. This, in legal
parlance is called "the mischief rule of
interpretation". The Judge is expected to
make such a construction as suppresses the
mischief and adds force and life to the
'cure'.

13. In my opinion, though in para- 36
of the judgment words "pending trial" has
been used, but the intention of the Apex
Court was to effectuate such direction, in
all the civil as well as criminal cases
irrespective
of
the
"stage"
of
the
proceeding. The court intended its ruling to
apply wherever stay is granted, whether at
the stage of investigation or at the stage of
inquiry or at the stage of committal or the
stages after the trial has commenced in a
criminal case. The word "trial" has not been
used to signify that the judgment of the
Supreme Court shall only apply, where the
stage of framing of charge has already
reached at. In case such an interpretation is
allowed, the very purpose of the judgment
shall fail. On the basis of above discussion,
I am of a firm opinion that this petition
does not have any force and is liable to be
dismissed.

14. Accordingly, the petition is
dismissed.

15. Copy of the order be immediately
certified to the court concerned.
----------
(2023) 10 ILRA 437
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 2592 of 2023

Sri Ashok Kumar Singh ...Applicant
Versus
C.B.I., Scb Lucknow ...Opposite Party

Counsel for the Applicant:
Rishad Murtaza, Aishwarya Mishra, Syed Ali
Jafar Rizvi

Counsel for the Opposite Party:
Anurag Kumar Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 120B, 420 & 406 - Criminal
Conspiracy
-
essence
of
criminal
conspiracy is an agreement to do an illegal
act - Even if some acts are proved to have
been committed, it must be clear that they
were so committed in pursuance of an
agreement made between the accused
persons who were parties to the alleged
conspiracy - Inferences from such proved
circumstances regarding the guilt may be
drawn only when such circumstances are
incapable
of
any
other
reasonable