# Golu v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-25
- **Case number:** U/S 482/378/407 No. 4047 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/golu-v-state-of-u-p-anr-46232
- **Pages:** 6

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 482, 319 - Indian
Penal Code, 1860-Section 302, 201challenge to-interlocutory order passed
u/s
319-
applicant-Six
prosecution
witnesses named the petitioner as one of
the three persons who were last seen with
the deceased-trial court observed that
initially in the F.I.R. and statements made
before
the
police
showed
that
the
applicant had been named as a coaccused-Trial court rightly summoned the
applicant after recording a prima facie
satisfaction-Hence,
no
interference
requires.(Para 1 to 17)

B. Though only a prima facie case is to be
established from the evidence led before
the court, not necessarily tested on the
anvil of cross-examination, it requires
much
stronger
evidence
than
mere
probability of his complicity. the test that
has to be applied is one which is more
than prima facie case as exercised at the
time of framing of charge, but short of
satisfaction
to
an
extent
that
the
evidence, if goes unrebutted, would lead
to conviction. in the absence of such
satisfaction, the court should refrain from
exercising power u/s 319 Cr.P.C. In
section
319
Cr.P.C.
the
purpose
of
providing if 'it appears from the evidence
that any person not being the accused has
committed any offence' is clear from the
words "for which such person could be
tried together with the accused." The
words used are not 'for which such person
could be convicted.'(Para 10 to 15)

The petition is dismissed. (E-6)

List of Cases cited:

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES

(12) This petition stands disposed of.
----------
(2021)10ILR A162
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.10.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

U/S 482/378/407 No. 4047 of 2021

Golu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Shrikant Mishra

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482, 319 - Indian
Penal Code, 1860-Section 302, 201challenge to-interlocutory order passed
u/s
319-
applicant-Six
prosecution
witnesses named the petitioner as one of
the three persons who were last seen with
the deceased-trial court observed that
initially in the F.I.R. and statements made
before
the
police
showed
that
the
applicant had been named as a coaccused-Trial court rightly summoned the
applicant after recording a prima facie
satisfaction-Hence,
no
interference
requires.(Para 1 to 17)

B. Though only a prima facie case is to be
established from the evidence led before
the court, not necessarily tested on the
anvil of cross-examination, it requires
much
stronger
evidence
than
mere
probability of his complicity. the test that
has to be applied is one which is more
than prima facie case as exercised at the
time of framing of charge, but short of
satisfaction
to
an
extent
that
the
evidence, if goes unrebutted, would lead
to conviction. in the absence of such
satisfaction, the court should refrain from
exercising power u/s 319 Cr.P.C. In
section
319
Cr.P.C.
the
purpose
of
providing if 'it appears from the evidence
that any person not being the accused has
committed any offence' is clear from the
words "for which such person could be
tried together with the accused." The
words used are not 'for which such person
could be convicted.'(Para 10 to 15)

The petition is dismissed. (E-6)

List of Cases cited:

1. Prabhu Chawla Vs St.of Raj. & anr. CRLA No.
842 of 2016

2. Raj Kapoor Vs St. (1980) 1 SCC 43: 1980 SCC
(Cri) 72

3. Madhu Limaye Vs St. of Mah.(1977) 4 SCC
551: 1978 SCC (Cri) 10

4. Ramesh Chandra Srivastava Vs St. of U.P.
CRLA No. 990 of 2021

5. Hardeep Singh Vs St. of Punj. & ors. (2014)
3 SCC 92

(Delivered by Hon'ble Mrs.
Sangeeta Chandra, J.)

1. Heard learned counsel for the
petitioner, Sri Pradeep Tiwari, Advocate,
who has filed power on behalf of opposite
party no.2 and Sri S.P. Tiwari, learned
A.G.A. for the State.

2. This petition under Section 482
Cr.P.C. has been filed with the following
main relief:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court be pleased
to quash the impugned order dated
02/11/2020 passed by the Additional
Session Judge Court No.1, U/S 319 Cr.P.C.
in Session Trial No.277/2013:- State of U.P.
10 All. Golu Vs. State of U.P. & Anr.
163
Vs. Ram Kushal and others related to
Crime No.383/2012, u/s 302, 201 of the
I.P.C., Police Station Kotwali Akbarpur,
District Ambedkar Nagar."

3. This Court had earlier given time to
learned counsel for the petitioner to
produce case laws to the effect that even
where a Criminal Revision is maintainable,
a petition under Section 482 Cr.P.C. can be
filed and entertained by the High Court.

4. Learned counsel for the petitioner
has produced before this Court a copy of
the judgment rendered by Larger Bench of
three Judges in Criminal Appeal No.842 of
2016:
Prabhu Chawla Vs.
State
of
Rajasthan
and
another;
decided
on
05.09.2016. Learned counsel has read out
the judgment cited. It has been submitted
that the appellants therein Prabhu Chawla,
Jagdish Upasane and others had filed a
Criminal Appeal No.24 of 2009 where the
High Court of Rajasthan had dismissed the
petitions preferred by the appellants under
Section 482 Cr.P.c. on the ground that they
were not maintainable as the remedy under
Section 397 Cr.P.C. of filing Criminal
Revision was maintainable. The Division
Bench which initially considered the
Criminal Appeal had expressed prima facie
opinion that the judgment of the High
Court of Rajasthan was against the law
settled by Supreme Court in Dhariwal
Tobacco Products Ltd. and others Vs. State
of Maharashtra and another. The Division
Bench however noticed a later Division
Bench judgment in the case of Mohit Alias
Sonu and another Vs. State of U.P. and
another, wherein apparently contrary view
was taken that when an order under
challenge is not interlocutory in nature and
is amenable to the revisional jurisdiction,
then inherent jurisdiction under Section 482
Cr.P.C. could not be exercised. In view of
such conflict, the matter was placed by the
Chief Justice before the Larger bench of
three judges for fresh consideration on
merits regarding the scope of inherent
powers available to the High Court under
Section 482 Cr.P.C.

5. The Supreme Court observed that
the Appeals had arisen out of Misc. Petition
under Section 482 Cr.P.C. having been filed
by the appellants before the High Court of
Rajasthan
against
the
order
dated
30.11.2006 passed by the learned Judicial
Magistrate, Jodhpur in Complaint Case
no.1669 of 2006, whereby it had taken
cognizance against the appellants under
Section 228A of the I.P.C. and summoned
them through bailable warrants to face
proceedings in the case.

6. The Supreme Court in paragraph-5
of the judgment rendered in Prabhu Chawla
(supra) has referred paragraph-10 of the
judgement rendered in Raj Kapoor Vs.
State, 1980 (1) SCC 43, and observed
thus:-

"5. Mr Goswami also placed
strong reliance upon the judgment of
Krishna Iyer, J. in a Division Bench in Raj
Kapoor v. State [Raj Kapoor v. State,
(1980) 1 SCC 43 : 1980 SCC (Cri) 72] .
Relying upon the judgment of a Bench of
three Judges in Madhu Limaye v. State of
Maharashtra [Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 : 1978
SCC (Cri) 10] and quoting therefrom,
Krishna Iyer, J. in his inimitable style made
the law crystal clear in para 10 which runs
as follows: (Raj Kapoor case [Raj Kapoor
v. State, (1980) 1 SCC 43 : 1980 SCC (Cri)
72] , SCC pp. 47-48)

"10. The first question is as to
whether the inherent power of the High
Court under Section 482 stands repelled
164 INDIAN LAW REPORTS ALLAHABAD SERIES
when the revisional power under Section
397 overlaps. The opening words of Section
482 contradict this contention because
nothing of the Code, not even Section 397,
can affect the amplitude of the inherent
power preserved in so many terms by the
language of Section 482. Even so, a
general principle pervades this branch of
law when a specific provision is made: easy
resort to inherent power is not right except
under compelling circumstances. Not that
there is absence of jurisdiction but that
inherent power should not invade areas set
apart for specific power under the same
Code. In Madhu Limaye v. State of
Maharashtra [Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 : 1978
SCC (Cri) 10] this Court has exhaustively
and, if I may say so with great respect,
correctly discussed and delineated the law
beyond mistake. While it is true that
Section 482 is pervasive it should not
subvert legal interdicts written into the
same Code, such, for instance, in Section
397(2). Apparent conflict may arise in some
situations between the two provisions and a
happy solution

'would be to say that the bar
provided in sub-section (2) of Section 397
operates only in exercise of the revisional
power of the High Court, meaning thereby
that the High Court will have no power of
revision in relation to any interlocutory
order. Then in accordance with one of the
other principles enunciated above, the
inherent power will come into play, there
being no other provision in the Code for the
redress of the grievance of the aggrieved
party. But then, if the order assailed is
purely of an interlocutory character which
could be corrected in exercise of the
revisional power of the High Court under
the 1898 Code, the High Court will refuse
to exercise its inherent power. But in case
the impugned order clearly brings about a
situation which is an abuse of the process
of the court or for the purpose of securing
the ends of justice interference by the High
Court is absolutely necessary, then nothing
contained in Section 397(2) can limit or
affect the exercise of the inherent power by
the High Court. But such cases would be
few and far between. The High Court must
exercise the inherent power very sparingly.
One such case would be the desirability of
the quashing of a criminal proceeding
initiated illegally, vexatiously or as being
without jurisdiction'. (SCC pp. 555-56,
para 10)

In short, there is no total ban on
the exercise of inherent power where abuse
of the process of the court or other
extraordinary situation excites the Court's
jurisdiction. The limitation is self-restraint,
nothing more. The policy of the law is clear
that interlocutory orders, pure and simple,
should not be taken up to the High Court
resulting in unnecessary litigation and
delay. At the other extreme, final orders are
clearly capable of being considered in
exercise of inherent power, if glaring
injustice stares the court in the face. In
between is a tertium quid, as Untwalia, J.
has pointed out as for example, where it is
more than a purely interlocutory order and
less than a final disposal. The present case
falls under that category where the accused
complain of harassment through the court's
process. Can we state that in this third
category the inherent power can be
exercised? In the words of Untwalia, J.:
(SCC p. 556, para 10)

'10. ? The answer is obvious that
the bar will not operate to prevent the
abuse of the process of the court and/or to
secure the ends of justice. The label of the
petition filed by an aggrieved party is
immaterial. The High Court can examine
the matter in an appropriate case under its
inherent
powers.
The
present
case
10 All. Golu Vs. State of U.P. & Anr.
165
undoubtedly falls for exercise of the power
of the High Court in accordance with
Section 482 of the 1973 Code, even
assuming, although not accepting, that
invoking the revisional power of the High
Court is impermissible.'

I am, therefore clear in my mind
that the inherent power is not rebuffed in
the case situation before us. Counsel on
both sides, sensitively responding to our
allergy for legalistics, rightly agreed that
the fanatical insistence on the formal filing
of a copy of the order under cessation need
not take up this Court's time. Our
conclusion concurs with the concession of
counsel on both sides that merely because a
copy of the order has not been produced,
despite its presence in the records in the
court, it is not possible for me to hold that
the entire revisory power stands frustrated
and the inherent power stultified."

7. It has been argued on the basis of
judgement rendered by the Larger Bench
that Section 482 Cr.P.C. starts with a non
obstante clause regarding the plenary
jurisdiction of the High Court which cannot
be curtailed in any manner and even where
remedy in other sections of the Code is
provided for instance, Section 397 of the
Cr.P.C. The Court had observed that there is
no limitation except that of self-restraint.
The policy of law is clear that interlocutory
orders, pure and simple, should not be
taken up to the High Court resulting in
unnecessary litigation and delay. At the
other extreme, final orders are clearly
capable of being considered in exercise of
inherent power, if glaring injustice stares
the court in the face. The Court thereafter
considered the facts of the case and
observed that in the Criminal Appeals the
facts
were
such
that
they
would
undoubtedly call for the exercise of the
power of the High Court in accordance
with Section 482 Cr.P.C., even assuming,
although not accepting that invoking the
revisional power of the High Court is
impermissible.

8. The Larger Bench of the Supreme
Court reiterated the law as enunciated in
Dhariwal Tobacco Products Ltd. and others
(supra) and stated that the judgment
rendered in Mohit Alias Sonu and another
Vs. State of U.P. and another, does not state
the law correctly.

9. In view of the submissions made
by learned counsel for the petitioner, this
Court is of the opinion that this petition
under Section 482 Cr.P.C. is maintainable
against an order summoning the petitioner
under Section 319 Cr.P.C. However, with
regard to the merits of the case, learned
counsel for the petitioner has tried to
convince this Court that in terms of the
observations made by the Supreme Court in
Criminal Appeal NO.990 of 2021: Ramesh
Chandra Srivastava Vs. State of U.P.;
decided
on
13.09.2021,
the
order
summoning the petitioner as an accused to
face trial along with the other accused
could not have been issued by the learned
trial court.

10. It has been submitted that in the
judgment rendered by Ramesh Chandra
Srivastava (supra), the Court observed that
a satisfaction should be recorded by the
learned trial court while summoning the
accused who is not named in the F.I.R. that
during the course of trial the evidence that
was produced if goes unrebutted would
lead to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 Cr.P.C.

11. This Court has carefully perused
the judgement rendered in Ramesh Chandra
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Sirvastava (Supra), but the observations
made by Hon'ble Supreme Court in Larger
Bench decision rendered in Hardeep Singh
Vs. State of Punjab and others 2014 (3)
SCC 92, are more apt and settles the law
undoubtedly. In paragraph-106 of the case
of Hardeep Singh (supra) is quoted in the
judgement of Ramesh Chandra Srivastava
(supra), the Supreme Court made the
following observations:-

"106. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied is
one which is more than prima facie case as
exercised at the time of framing of charge,
but short of satisfaction to an extent that
the evidence, if goes unrebutted, would lead
to conviction. In the absence of such
satisfaction, the court should refrain from
exercising power under Section 319 Cr.P.C.
In Section 319 Cr.P.C. the purpose of
providing if 'it appears from the evidence
that any person not being the accused has
committed any offence' is clear from the
words "for which such person could be
tried together with the accused." The words
used are not 'for which such person could
be convicted'. There is, therefore, no scope
for the court acting under Section 319
Cr.P.C. to form any opinion as to the guilt
of the accused."

12. It is evident from perusal of
observations made hereinabove by the
Supreme Court in Hardeep Singh Vs. State
of Punjab and others, that the Supreme
Court has emphasized the fact that the
words used in section are such that it only
require a satisfaction by the learned trial
court to be recorded to the extent that from
the evidence produced before it during the
trial, such facts had come its knowledge
that "such a person could be tried" together
with the Appeal. The words used are not
"for
which
such
person
could
be
convicted". The Court had observed that
there is no scope for the learned trial court
under Section 319 Cr.P.C. to form any
opinion as to the guilt of the accused.

13. In the case of the petitioner herein
, learned counsel for the petitioner has read
out in detail the statements of father of the
victim and two independent witnesses,
namely, Hansraj and Shri Ram before the
learned trial court to show an apparent
contradiction between such statements.
However, this Court has perused the order
under Section 319 Cr.P.C. passed by
learned trial court. Learned trial court has
observed that initially in the F.I.R., and in
the statements made before the police, the
petitioner Golu s/o Arun Kumar had been
named
as
a
co-accused.
Thereafter
statements of six prosecution witnesses
were also made before the learned trial
court. All of the six prosecution witnesses
had named the petitioner as one of the three
persons who were last seen with the
deceased, the son of informant.

14. After recording the statement of
prosecution witnesses, learned trial court
made the following observations:-

"Is Prakar uprokt sakshigan ke
bayan ke avlokan se pratham drashtya yah
spasht hai ki mritak ko golu, pradeep tatha
jayram ka bhanja pradeep dwara apne sath
le jate hue vaadi ke gaon ke Shri Ram va
Hans Raj ne dekha tha tatha vaadi va uski
patni ko bataya bhi tha. Vaadi dwara
prastut kiye gae tahreer me bhi Golu,
Pradeep va gaon ke Jay Ram ka bhanja
Pradeep dwara uske putra ka apaharan kar
10 All. U.P. State Sugar Corp. Ltd. Lko. & Anr. Vs. Ravi Shankar Mishra &Ors.
167
kahin le jane ka tathya ankit hai. Prastavit
abhiyuktgan pratham suchna report me
naamit kiye gae hain. Is prakar pratham
suchna report tatha nyayalay ke samaksh
saakshi P.W.1 Neeraj Rajbhar va P.W.2
Meena Devi va P.W.5 Sri Ram va P.W. 6
Hans Raj urf Hansu sabhi ke dwara Golu,
Pradeep tatha Jayram ka bhanja Pradeep
ki ghatna me shamil hone ka ullekh kia
gaya hai. Atah Golu putra Arun Kumar,
Pradeep putra Mewalal va Pradeep putra
Sri Ram Yadav ko dhara 302, 201 bhartiya
dand sanhita ke antargat prasangyan lete
hue abhiyuktgan ki haisiyat se vicharan
hetu talab kiye jane ka santoshjanak
aadhar
hai.
Tadanusar
prarthnapatra
kagaj sankhya 17B svikar kiye jane yogya
hai.

Aadesh

Tadanusar
prarthana
patra
antargat dhara 319 Dand Prakriya Sanhita
kaagaj sankhya 17B swikar kiya jata hai.
Golu putra Arun Kumar, Pradeep putra
Mewalal niwasi Gram Bhardha Bhiyura va
Pradeep putra Sri Ram Yadav ko vicharan
hetu abhiyuktgan ki haisiyat se jariye
summon dinank 25.11.2020 ke liye talab
kiya jae. Yah aadesh antrim nirnay ko
prabhavit nahi karega."

15. It is evident that learned trial court
had summoned the petitioner after recording
a prima facie satisfaction that his name being
mentioned in the F.I.R. and in the statements
of prosecution witnesses, there were facts
which had come to the knowledge of the trial
court "for which such person could be tried
together with the accused".

16. This Court therefore does not find
any good ground to show interference in
the order impugned in exercise of inherent
powers under Section 482 Cr.P.C.

17. The petition is accordingly
dismissed.
----------
(2021)10ILR A167
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.10.2021

BEFORE

THE HON'BLE RAJAN ROY, J
THE HON'BLE SURESH KUMAR GUPTA, J.

Special Appeal No. 147 of 2020
with other connected cases

U.P. State Sugar Corp. Ltd. Lko. & Anr.
 ...Appellants
Versus
Ravi Shankar Mishra & Ors.
 ....Respondents

Counsel for the Appellants:
Sudhanshu Chauhan

Counsel for the Respondents:
C.S.C., Gopal Singh Bisht[G.S.Bi, Vijay
Kumar Srivastava

A. Service Law - Voluntary retirement -
It's consequence - Dearness allowance
revised subsequently - Entitlement -
Held, the law with regard to voluntary
retirement is that one who accepts the
Golden Handshake would only be entitled
to the sum promised under the Voluntary
Retirement Scheme and no other amount
- Golden Handshake includes ex-gratia
and other payments which such retiree
would otherwise not get had he continued
in service - Quashing the writ order, the
Division Bench observed that writ court
failed to consider the law on it and posted
the matter before the writ court. (Para 8,
13 and 17)
Appeal allowed in part. (E-1)
Cases relied on :-