# Hari Bhajan & Ors v. State of U.P

- **Citation:** (2020) 2 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Criminal Appeal No. 783 of 2019
- **Bench:** Anant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-bhajan-ors-v-state-of-u-p-45588
- **Pages:** 4

## Headnote

A. Criminal Law-Indian Penal CodeSection 304 (Part 2)/34, 323/34 - Appeal
against
conviction.
2 All. Hari Bhajan & Ors. Vs. State of U.P. & Ors.
27
Appellant
has
been
granted
bail
by
a
coordinate bench. Now a prayer has been
made that the sentence awarded by the trial
court may be suspended during pendency of
the appeal because of the fact that the
applicant is an old aged person aged about 71
years and is a Loktantra Senani and getting
Loktantra Senani pension from the State
Government and in case the sentence is not
suspended he will not get the Loktantra Senani
pension and his survival will be jeopardized.
(Para 3)

Criminal Appeal allowed. (E-2)

List of cases cited :-

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES

13. From perusal of Section 345 of
the Cr.P.C., it is apparent that where any
offence as is described in section 175,
section 178, section 179, section 180 or
section 228 of the Indian Penal Code is
committed, the Court may cause the
offender to be detained in custody and
may take cognizance of the offence and,
after giving an opportunity may also
impose penalty upon him.

14. Section 175 of the Indian Penal
Code (for short, 'IPC') reads as follows:-

"175.
Omission
to
produce
[document or electronic record] to public
servant by person legally bound to
produce it.--Whoever, being legally bound
to produce or deliver up any [document or
electronic record] of any public servant,
as such, intentionally omits so to produce
or deliver up the same, shall be punished
with simple imprisonment for a term which
may extend to one month, or with fine
which may extend to five hundred rupees,
or with both, or, if the [document or
electronic record] is to be produced or
delivered up to a Court of Justice, with
simple imprisonment for a term which may
extend to six months, or with fine which
may extend to one thousand rupees, or
with both."

15. From perusal of Section 175 of
IPC, it is apparent that omission to
produce document or electronic record by
person legally bound to produce up to a
Court of justice is an offence punishable
with simple imprisonment for a term
which may extend to one month or with
fine which may extend to five hundred
rupees or with both. Thus, in case learned
Magistrate is of the view that the officials
concerned
have
not
produced
the
document/report
deliberately
as
were
directed by him to be produced it is always
open for the learned Magistrate to proceed
against the officials concerned under the
powers vested with him under the
aforesaid provisions of law. However, this
Court records that it has not gone into the
merits of the orders passed by the learned
Magistrate but has only considered as to
whether learned Magistrate has got the
power to have his own orders complied
with whereby not requiring this Court to
interfere and invoke its jurisdiction under
the Act of 1971.

16. Taking into consideration the
aforesaid, no case for entertaining of the
present contempt petition under Section 10
read with Sections 11 and 12 of the Act of
1971 is made out. The contempt petition is
accordingly dismissed. However, it would
be open to the petitioner to pursue other
remedies that are available to her.
----------
(2020)02ILR A26
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.02.2020

BEFORE

THE HON'BLE ANANT KUMAR, J.

Criminal Appeal No. 783 of 2019

Hari Bhajan & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Devendra Pratap

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law-Indian Penal CodeSection 304 (Part 2)/34, 323/34 - Appeal
against
conviction.
2 All. Hari Bhajan & Ors. Vs. State of U.P. & Ors.
27
Appellant
has
been
granted
bail
by
a
coordinate bench. Now a prayer has been
made that the sentence awarded by the trial
court may be suspended during pendency of
the appeal because of the fact that the
applicant is an old aged person aged about 71
years and is a Loktantra Senani and getting
Loktantra Senani pension from the State
Government and in case the sentence is not
suspended he will not get the Loktantra Senani
pension and his survival will be jeopardized.
(Para 3)

Criminal Appeal allowed. (E-2)

List of cases cited :-

1. AIR 2001 Supreme Court 3320; K.C.Sareen
V. C.B.I. Chandigarh;

2. AIR 2008 Supreme Court 35; State of Punjab
v. Deepak Mattu;

3. 2013 (2) ACR 1701; State of Mah. through
CBI, Anti Corruption Branch, Mummbai vs.
Balakrishna Dattatrya Kumbhar;

4. (2003)12 SCC 434:

5. N. Ramamurthy v. State by Central Bureau
of Investigation, A.C.B., Bengaluru in Criminal
Appeal Nos.751- 752/2019 decided on 26th
April, 2019.

(Delivered by Hon'ble Anant Kumar, J.)

(Crl. Misc. Application No.4812 of
2020)

1. Rejoinder affidavit filed today is taken
on record.

2. Appellant No.1/applicant has been
convicted in S.T. No. 258 of 2011, Crime No.
339 of 2011, under Section 304 (Part 2)/34,
323/34 IPC, P.S. Sursa, District Hardoi and has
been sentenced to undergo Five Years' R.I.
with a fine of Rs.10,000/- for the offence under
Section 304 (Part 2)/34 IPC and Six Months'
S.I. with a fine of Rs.500/- for the offence
under Section 323/34 IPC.

3. Appeal of the appellant No.1/applicant
is pending before this Court. Appellant
No.1/applicant has been granted bail by a coordinate bench of this Court vide order dated
06.09.2019. Now a prayer has been made that
the sentence awarded by the trial court may be
suspended during pendency of the appeal
because of the fact that the appellant
No.1/applicant is an old aged person aged
about 71 years and is a Loktantra Senani and
getting Loktantra Senani pension from the
State Government and in case the sentence is
not suspended he will not get the Loktantra
Senani pension and his survival will be
jeopardized.

4. The prayer has been made in reference
to Section 389(1) Cr.P.C., which reads as
under:

"Section 389(1) in The Code Of
Criminal Procedure, 1973

(1) Pending any appeal by a
convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order
that the execution of the sentence or order
appealed against be suspended and, also, if he
is in confinement, that he be released on bail,
or on his own bond."

5. It is stated by learned counsel
for the appellant No.1/applicant that
since the appellant No.1/applicant has
been granted bail, so as a natural
corollary of the order, sentence of the
appellant No.1/applicant has also been
suspended.
This
prayer
has
been
opposed by learned A.G.A.

6. Learned counsel for the
appellant No.1/applicant has cited the
following case laws:
28 INDIAN LAW REPORTS ALLAHABAD SERIES

1. AIR 2001 Supreme Court
3320; K.C.Sareen V. C.B.I. Chandigarh;

2. AIR 2008 Supreme Court 35;
State of Punjab v. Deepak Mattu;

3. 2013 (2) ACR 1701; State of
Maharashtra
through
CBI,
Anti
Corruption
Branch,
Mummbai
vs.
Balakrishna Dattatrya Kumbhar;

4. (2003)12 SCC 434:

7. Learned counsel for the appellant
No.1/applicant has also referred a case law
N. Ramamurthy v. State by Central
Bureau
of
Investigation,
A.C.B.,
Bengaluru in Criminal Appeal Nos.751752/2019 decided on 26th April, 2019. In
Para 8 of the said judgement Hon'ble Apex
Court held as under :

"8.
In
both
the
orders
impugned, the High Court, apart from
the aforesaid error about the length of
imprisonment to be served by the
appellant, has also proceeded on
entirely irrelevant consideration with
reference to the principles related with
the prayer for suspension of the
operation of the order of conviction
that such a suspension could be
granted only in rare and exceptional
cases and for special reason. With
respect, the High Court appears to
have missed out the fact that the prayer
on behalf of the appellant had only
been for suspension of execution of
sentence and not for stay or suspension
of the operation of the order of
conviction. Hence, reference to the
decision
in
Navjot
Singh
Siddhu
(supra) had been obviously inapt on
the facts and in the circumstances of
the present case. In fact, in the other
cited decision in K.C. Sareen v. CBI,
Chandigarh: (2001) 6 SCC 584, this
Court has indicated that ordinarily, the
superior Court should suspend the
sentence
of
imprisonment
in
the
matters relating to the offence under
the PC Act, unless the appeal could be
heard soon after filing. This Court
pointed out the subtle distinction in the
proposition for suspension of an order
of conviction on one hand and that for
suspension of sentence on the other.
This Court explained and laid down as
under:

"11.
The
legal
position,
therefore, is this: though the power to
suspend an order of conviction, apart
from the order of sentence, is not alien
to Section 389(1) of the Code, its
exercise should be limited to very
exceptional cases. Merely because the
convicted person files an appeal in
challenge of the conviction the court
should not suspend the operation of the
order of conviction. The court has a
duty to look at all aspects including the
ramifications
of
keeping
such
conviction in abeyance. It is in the
light of the above legal position that
we have to examine the question as to
what should be the position when a
public servant is convicted of an
offence under the PC Act. No doubt
when the appellate court admits the
appeal filed in challenge of the
conviction and sentence for the offence
under the PC Act, the superior court
should normally suspend the sentence
of imprisonment until disposal of the
appeal, because refusal thereof would
render the very appeal otiose unless
such appeal could be heard soon after
the filing of the appeal. But suspension
of conviction of the offence under the
PC
Act,
dehors
the
sentence
of
imprisonment as a sequel thereto, is a
different matter." 8.1. What we find
2 All. Ajay Rastogi & Anr. Vs. State of U.P. & Anr.
29
 from
the
impugned
order
dated
29.01.2019 is that, even after taking
note of the principles aforesaid, the
High Court has apparently missed out
the substratum and has not applied the
applicable legal principles to the case
at hand."

8.

In
view
of
the
above
circumstances, the application is allowed.
Sentence awarded by the trial court against
the appellant No.1/applicant shall remain
suspended during pendency of the appeal.
----------
(2020)02ILR A29
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.02.2020

BEFORE

THE HON'BLE ANANT KUMAR, J.

Criminal Appeal No. 1422 of 2019

Ajay Rastogi & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Syed Raza Mehdi, Syed Husain Mehdi
[S.H.Me

Counsel for the Respondents:
G.A., Mohd. Mateen

A. Criminal Law-Indian Penal CodeSections 323, 504 and Section 3 (1) (dha) of
SC/ST Act,- Appeal against conviction.

It is submitted by learned counsel for the
appellants that in the F.I.R. it was mentioned
that the complainant was addressed with his
caste but when the statement of complainant
was recorded during course of investigation, it
is stated that abuses were given but it is not
mentioned that he was addressed by caste by
the appellants. Even the eye witnesses also not
stated that the appellants had addressed the
complainant by his caste. Other witnesses also
not confirmed this fact that the complainant
was addressed by caste. (Para 4)

The trial court has not properly appreciated the
material
on
record
while
passing
the
summoning order against the appellants. (Para
9)

Criminal Appeal allowed. (E-2)

List of cases cited:-

 (2009) 1 SCC (Cri) : Gorige Pentaiahi Vs. St. of
A.P. & others

(Delivered by Hon'ble Anant Kumar, J.)

1. Counter affidavit filed on behalf of
the State is taken on record.

2. This criminal appeal under Section
14-A (1) of the Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 has been filed for
setting aside the entire proceedings of
Special Sessions Trial No.115 of 2019,
under Sections 323, 504 IPC and Section 3
(1) (dha) of SC/ST Act, pending before the
Special Judge, SC/ST Act/Additional
Sessions Judge, District Balrampur as well
as the summoning order dated 05.07.2019,
passed
by
Special
Judge,
SC/ST
Act/Additional
Sessions
Judge,
Balrampur.

3. It is submitted by learned counsel
for the appellant that in this case F.I.R.
was lodged by the complainant Shiv Lal to
the effect that on 19.02.2019, he had gone
in the market. At about 6.30 P.M. he was
talking with Om Prakashji. In the
meantime,
present
appellants
started
giving filthy abuses by addressing caste
and started beating. Then anyhow the
complainant
could
be
saved
by