# Deena Nath Arora & others v. State of U.P. and another

- **Citation:** (2005) 4 ILRA 1136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-11
- **Case number:** Criminal Misc. Application No. 5372 of 2000
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deena-nath-arora-others-v-state-of-u-p-and-another-40559
- **Pages:** 5

## Headnote

Code
of
Criminal
Procedure-S-482Summoning
Order-for
offence
under
Section
323
I.P.C.-complaint
case
Summoning Order passed after 8 yearsabsolutely no explanation for delaycomplaint
on
the
basis
of
certain
apprehensions-nothing
happened
between 15 years-impugned complaint
amounts to abuse of the process of
court-hence-Quashed.

Held: Para 6

A bare reading of the complaint in the
present case makes it clear that only
certain
apprehensions
against
the
applicants have been voiced by the
complainant for the reason that his son
and daughter-in-law had left his house
and started living separately. After lapse
of 15 years nothing has happened in
between
and
it
is
apparent
that
continuation of the criminal proceedings
on the basis of impugned complaint will
only amount to an abuse of the process
of the court and therefore, I therefore
quash the complaint which is registered
as Complaint Case No. 1007 of 1990-V.K.
Taneja Vs. Deena Nath Arora and others,
pending in the court of Chief Judicial
Magistrate, Bareilly. This application is
accordingly allowed.
Case law discussed:
AIR 1973 SC-494 (SC)
1997 JIC-212 (SC)
AIR 1994 SC-1229
2004 (50) ACC-924

## Text

1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
incorporated in the order of punishment.
As the same has not been done, therefore,
in view of the judgment reported in 1997
(77) F.L.R. Page 863, the Labour Court
was justified in modifying the punishment
of dismissal into stoppage of two
increments.

10. Regarding the contention raised
by the petitioner that the 50% back wages
which has been given to the petitioner is
not permissible in view of the Apex Court
judgment in the case of Hindustan
Motors
Ltd.
Vs.
Tapan
Kumar
Bhattachara 2002 Vol. (6) S.C.C. Page
41 and has submitted that the Apex Court
has clearly held that unless and until it is
proved by adducting the evidence that the
employee
concerned
remained
unemployed in interregnum between the
dismissal and reinstatement. I have
considered the submission made on behalf
of the petitioner regarding awarding 50%
back wages. The workman has submitted
an application that he was not financially
employed anywhere during the aforesaid
period and has proved it, though there was
denial by the employer and the Labour
Court has clearly considered the Apex
Court judgment and on that basis has only
awarded 50% back wages, therefore, it
cannot be said that the judgment and
order passed by the Labour Court suffers
from illegality in awarding back wages up
50%. In Apex Court judgment reported in
2005 S.C.C. (L & S) 631, Allahabad Jal
Sansthan Vs. Daya Shanker Rai and
others the Apex Court has observe that
"A law in absolute terms cannot be laid
down as to in which cases, and under
what circumstances, full back wages can
be granted or dinied. The Labour Court
and/or Industrial Tribunal, before which
the industrial dispute has been raised,
would be entitled to grant the relief
having
regard
to
the
facts
and
circumstances of each case. For the said
purpose, several factors are required to be
taken into consideration. Inter alia, a
pleading to the effect that he been sitting
idle or had not obtained any other
employment in the interregnum, must be
raised by the workman seeking back
wages."

11. In the Apex Court judgment
2005 SCC (L & R) 270 Kendriya
Vidyalaya Sansthan and others Vs. S.C.
Sharma, the Apex Court has held that for
determination of question of back wages,
burden of proof is on the employee. He
has to show that he was not gainfully
employed and if the same has been
proved, the employee is entitled for the
back wages.

12. In view of the aforesaid finding
recorded by the Labour Court, in my
opinion, it needs no interference under the
discretionary jurisdiction of this Court
under Article 226 of the Constitution of
India. The award given by the Labour
Court is just and proper; therefore the writ
petition is devoid of merit and is hereby
dismissed. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM
SRIVASTAVA, J.

Criminal Misc. Application No. 5372 of
2000

Deena Nath Arora & others ...Applicants
Versus
State of U.P. and another
 ...Opposite Parties
4 All] Deena Nath Arora V. State of U.P. and another
1137
Counsel for the Applicants:
Sri R.L. Shukla
Sri J.C. Bhardwaj
Sri S.S. Pal

Counsel for the Opposite Parties:
Sri A.K. Srivastava
A.G.A.

Code
of
Criminal
Procedure-S-482Summoning
Order-for
offence
under
Section
323
I.P.C.-complaint
case
Summoning Order passed after 8 yearsabsolutely no explanation for delaycomplaint
on
the
basis
of
certain
apprehensions-nothing
happened
between 15 years-impugned complaint
amounts to abuse of the process of
court-hence-Quashed.

Held: Para 6

A bare reading of the complaint in the
present case makes it clear that only
certain
apprehensions
against
the
applicants have been voiced by the
complainant for the reason that his son
and daughter-in-law had left his house
and started living separately. After lapse
of 15 years nothing has happened in
between
and
it
is
apparent
that
continuation of the criminal proceedings
on the basis of impugned complaint will
only amount to an abuse of the process
of the court and therefore, I therefore
quash the complaint which is registered
as Complaint Case No. 1007 of 1990-V.K.
Taneja Vs. Deena Nath Arora and others,
pending in the court of Chief Judicial
Magistrate, Bareilly. This application is
accordingly allowed.
Case law discussed:
AIR 1973 SC-494 (SC)
1997 JIC-212 (SC)
AIR 1994 SC-1229
2004 (50) ACC-924

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1. Heard Sri Rajiv Lochan Shukla
and Sri J.C. Bharadwaj Advocates for the
applicants and learned A.G.A. for the
State. Sri Anil Kumar Singh has put in
appearance on behalf of the complainant
and has filed counter affidavit. Rejoinder
affidavit has also been filed on behalf of
the applicants. List is revised.

2. This application under Section
482 Cr.P.C. invoking inherent jurisdiction
has been filed on behalf of the applicants
with prayer to quash the complaint case
No. 1007 of 1990-V.K. Taneja Vs. Deena
Nath Arora and others, pending in the
court
of
Chief
Judicial
Magistrate,
Bareilly and also to quash the order dated
9.10.1998, Annexure-4 to the affidavit.
The facts giving rise to the dispute is that
the applicant no. 9 Sanjeev Kumar Taneja
is the son of opposite party no. 2,
complainant and applicant no. 10 Smt.
Asha Taneja alias Ruchita Taneja is wife
of applicant no. 9 (daughter-in-law of the
complainant). The other applicants are
close relatives of Smt. Asha Taneja. The
complaint is annexed as Annexure-1 to
the affidavit filed in support of this
application which was filed on 31.3.1990
under Sections 147, 148, 149, 406, 420,
452, 504, 506, 323 I.P.C. and the same
was numbered as Criminal Case No. 1007
of 1990. After lapse of 8 years, statements
of Govind Raman Taneja was recorded
under Section 202 Cr.P.C. which is
annexed as Annexure-2 to the affidavit.
Smt. Subodh Kumari Taneja, wife of the
complainant was also examined under
Section 202 Cr.P.C. on the same day i.e.
21.8.98.
The
learned
Magistrate
summoned the applicants vide order dated
9.10.1998 under Sections 147, 148, 149,
504, 506, 452, 323 I.P.C. It is brought to
my notice that while summoning the
applicants the learned Magistrate did not
summon the applicants under Section 406
and 420 I.P.C. The applicants filed a
1138 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
protest
petition
challenging
the
summoning order which was rejected vide
order dated 9.2.1999 by the learned
Sessions Judge, Bareilly stating therein
that in view of the various decisions of the
Apex Court as well as this Court
summoning order is an interlocutory order
and
is
not
maintainable.
In
the
circumstances, the learned Sessions Judge
rejected
the
application
as
not
maintainable without giving any opinion
on merits. This order is also under
challenge. The applicants have filed a
copy of an application given by the
complainant prior to institution of the
complaint case on 26.3.1990 wherein it
has been stated that the family members
of the daughter-in-law, applicant no. 10,
in absence of the complainant somehow
managed to instigate his son (applicant
no. 9) to leave his parent's house and
finally the son and daughter-in-law left
the house of the complainant. The
complainant
alleged
in
the
said
application that he apprehends that the
family members of the applicant no. 10
may lodge false report or implicate them
in some frivolous case. The allegation
made in that application to the extent that
they are likely to be blackmailed by the
complainant and his family members.
This application has been annexed as
Annexure-6 to the affidavit and has not
been denied by the contesting opposite
parties in their counter affidavit. The
applicants have prayed for quashing the
complaint on the ground that; (1) it is
frivolous in nature, (2) the complaint was
registered in the year 1990 whereas the
summoning order has been passed after
lapse of 8 years and (3) the application
dated
26.3.1990
moved
before
the
Additional
District
Judge
(Administration) was prior to the lodging
of
the
complaint
expressing
his
apprehension, only because his son
applicant no. 10 had left his father's house
with his wife and the complaint is only an
abuse of the process of the court.

3. Before I proceed to decide
whether the instant criminal complaint
can be quashed or not, it is necessary to
decide the question as to whether the
order dated 9.2.1999 passed by the
learned Sessions Judge in Criminal
Revision No. 57 of 1999 calls for any
interference. I have gone through the
entire judgment and do not find any
illegality. The learned Sessions Judge
declined to give any opinion on merit but
rejected the revision as not maintainable.
The Apex Court has also ruled in the case
of Adalat Prasad Vs. Roop Lal Jindal
and others, 2004 (50), A.C.C., 924 that
the learned Magistrate could not review
its earlier order as the Criminal Procedure
Code do not contemplate such a situation.
In the instant case the revisional court
declined to interfere for the reason that
the order summoning the accused is an
interlocutory order and not maintainable
placing reliance on a number of decisions.
In the circumstances, I do not find any
illegality in the order dated 9.2.1999
passed by the learned Sessions Judge,
Bareilly.

4. Now the prayer for quashing of
the complaint on the ground that it is only
as a means of harassment and specially in
view of the fact that on 26.3.1990 a
somewhat similar application was filed
before the Additional District Judge and
subsequently the criminal complaint was
filed. Besides, almost forty cases are
going on between the parties, it is to be
examined whether the summoning of the
applicants under Sections 147, 148, 149,
452, 504, 506, 323 I.P.C. warrants
4 All] Deena Nath Arora V. State of U.P. and another
1139
quashing of the proceedings. It is apparent
that the date of occurrence as mentioned
in the criminal complaint is 28.2.1990.
Almost 15 years have gone by and there
has been no outcome of the so called
threat extended to the complainant and his
family members by the applicants. In fact
after filing of the complaint, the matter
was left in cold storage continuously for
the period of 8 years and thereafter
summoning order has been filed after
lapse of very long time. It is apparent that
the complaint was instituted only because
the son and daughter-in-law separated
from the complainant and left the house.
It is only a pressurizing tactics to get back
the son and daughter-in-law. It is also
noteworthy that though the applicants
have been summoned under Section 323
I.P.C. but there appears to be no
allegation of causing physical assault and
in absence of any injury report, there is
apparently nothing in the complaint to
show that they were injured or their
injuries were ever examined. The matter
is pending since the year 1990. Almost 15
years have gone by and continuation of
the criminal proceedings on the basis of
criminal complaint sought to be quashed
is nothing but an abuse of the process of
the
court.
The
Apex
Court
has
categorically ruled that the criminal cases
should be concluded expeditiously and
delay of more than 10-12 years has been
held to be fatal to the trial. In the case of
Santosh De Vs. Archana Guha and
others, A.I.R. 1994 S.C., 1229, the
Supreme Court quashed the proceedings
where the delay was 14 years and there
was no explanation why delay was caused
by the prosecution and it was held that it
infringes the right of the accused to
speedy trial. In the instant case the
complaint was lodged in the year 1990
and the witnesses were examined under
Section 200 and 202 Cr.P.C. after lapse of
8 years i.e. in the year 1998 and thereafter
the summoning order was passed. A bare
reading of the entire paper book, it is
evident that the criminal proceedings
were initiated only as a pressurizing
tactics.
There
is
no
explanation
whatsoever in the summoning order
regarding delay and lapse of 8 years
between the period when the complaint
was lodged and the witnesses were
examined under Sections 200 and 202
Cr.P.C. The Apex Court in the case of
Santosh De (Supra) declined to interfere
in the order of the High Court where the
proceeding was quashed on account of
delay of 8 years. For ready reference
paragraph 12 of the said judgment is
quoted below:-
"We are not satisfied that there are
any valid grounds for interference with
the order of the High Court. The most
glaring circumstance in the case is the
delay in commencing the trial. The case
was committed to sessions court on July
15, 1974 and the charges came to be
framed by the sessions court only on April
13, 1983 i.e., after a lapse of about eight
years. The appellant is not in a position to
explain the reasons for this delay. In the
order under appeal, the High Court has
stated that this delay is entirely on
account of the default of the prosecution.
This is not a case of what is called
'systemic delays'-as explained in A.R.
Antulay, (AIR 1992 SC 1701). In our
opinion, this unexplained delay of eight
years in commencing the trial by itself
infringes the right of the accused to
speedy trial. In absence of any material to
the contrary, we accept the finding of the
High Court that this delay of eight years
is entirely and exclusively on account of
the default of the prosecution. Once that
1140 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
is so there is no occasion for interference
in this appeal. It is accordingly dismissed.

5. Similar view has been voiced by
the Apex Court in the case of State of
U.P. Vs. Kapil Deo Shukla, A.I.R. 1973
S.C. 494 and A.A. Mulla and others Vs.
State of Maharashtra and another,
1997 J.I.C. 212 (S.C.). In the said cases
reliance was placed on a number of
decisions of the Apex Court. A perusal of
the entire paper book shows that the
identical allegations were levelled against
the applicants four days prior to the
lodging of the instant complaint. The
application before the Additional District
Magistrate dated 26.3.1990, Annexure-6
to the affidavit, it is only narration which
has been given out in the instant
complaint which is Annexure-1 to the
affidavit. It is thus evident that repeated
allegations
at
the
instance
of
the
complainant is nothing short of an abuse
of the process of the court, specially when
the complainant has only narrated his
apprehensions on the basis of the so
called threat said to have been extended
by the applicants, such a long period has
gone by and nothing has come out,
therefore, mere threat to cause the injury
to his person and property is sheer
imagination of the complainant. It is not a
case where serious criminal offences are
alleged
in
the
complaint
and
the
applicants have been kept on waiting for
the outcome of the complainant, specially
the summoning order has been passed
after lapse of 8 years which can not be
overlooked by this Court. It is not a case
where inherent powers have been invoked
immediately
after
lodging
of
the
complaint but they have been summoned
after a considerable long span of eight
years.

6. A bare reading of the complaint in
the present case makes it clear that only
certain
apprehensions
against
the
applicants have been voiced by the
complainant for the reason that his son
and daughter-in-law had left his house
and started living separately. After lapse
of 15 years nothing has happened in
between
and
it
is
apparent
that
continuation of the criminal proceedings
on the basis of impugned complaint will
only amount to an abuse of the process of
the court and therefore, I therefore quash
the complaint which is registered as
Complaint Case No. 1007 of 1990-V.K.
Taneja Vs. Deena Nath Arora and others,
pending in the court of Chief Judicial
Magistrate, Bareilly. This application is
accordingly allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 23237 of 2004

Dilip Kumar Singh

...Petitioner
Versus
Bharat Sanchar Nigam Ltd. and others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaubey
Sri R.K.S. Chauhan

Counsel for the Respondents:
Sri B.N. Singh
Sri G.S. Hajela
S.S.C.

Constitution of India, Art. 226-Right to
promotion-petitioner
qualified
departmental examination for Junior
Accounts Officer-send for training-during