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

- **Citation:** (2023) 8 ILRA 1215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Application U/S 482. No. 12016 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaypal-anr-v-state-of-u-p-anr-50520
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections
302,
120B
,
fundamental
foundations of criminal justice system in
India - accused of an offence has to be
present during the entire process of the
criminal trial - ex-parte trial is alien to the
Indian legal system - fair trial enshrined in
Article 21 of the Constitution of India -
presence of the accused is necessary both
for the framing of the charge and for
recording of evidence during the trial -
issuance
of
non-bailable
warrants
interferes with personal liberty and the
Courts should be extremely careful before
issuing non-bailable warrants - warrants,
either bailable or non-bailable, should
never be issued without proper scrutiny of
facts
and
complete
application
of
mind.(Para - 11,16)

Summoning order was passed - applicants filed
a criminal revision - rejected by an order -
applicants filed a writ petition under Article 227
challenging revisional order - contention - no
knowledge of summoning order and date for
their appearance - Magistrate has no right to
issue bailable or non-bailable warrants without
sufficient service. (Para -19 )

HELD:-
Applicants
were
aware
of
the
summoning order and non-bailable warrant, and
were dishonestly or fraudulently avoiding court
appearance. Court issued non-bailable warrants,
indicating no illegality or infirmity in the orders
impugned. (Para-20,21)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

8 All. Jaypal & Anr. Vs. State of U.P. & Anr.
1215
manner the applicants were in-charge or
were responsible to the accused Company
for the conduct of its business. Thus, in the
opinion of the Court, as on the face of the
record, participation of the applicants is not
found in the day to day functioning of the
Company, hence, on the basis of the
version that the defence would be seen at
the time of evidence, it would be travesty
of justice to drag the persons to face the
prosecution who are no way connected
with the issuance of the cheque or its being
dishonour thereof.

24. On the basis of above discussion,
the summoning of the applicants to face
trial under Section 138 of Negotiable
Instruments Act is found to be against the
mandate of law laid down by the Apex
Court in above mentioned judgments.

25. The summoning order dated
25.11.2016 passed by the Upper Nyayalaya
Pratham, Ghaziabad and the judgment
dated 22.02.2018 passed by the Additional
Session Judge, Court No.15, Ghaziabad in
criminal revision are quashed.

26. The application under Section 482
Cr.P.C. is, hereby, allowed.
----------
(2023) 8 ILRA 1215
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482. No. 12016 of 2023

Jaypal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rajat Kumar Shukla

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections
302,
120B
,
fundamental
foundations of criminal justice system in
India - accused of an offence has to be
present during the entire process of the
criminal trial - ex-parte trial is alien to the
Indian legal system - fair trial enshrined in
Article 21 of the Constitution of India -
presence of the accused is necessary both
for the framing of the charge and for
recording of evidence during the trial -
issuance
of
non-bailable
warrants
interferes with personal liberty and the
Courts should be extremely careful before
issuing non-bailable warrants - warrants,
either bailable or non-bailable, should
never be issued without proper scrutiny of
facts
and
complete
application
of
mind.(Para - 11,16)

Summoning order was passed - applicants filed
a criminal revision - rejected by an order -
applicants filed a writ petition under Article 227
challenging revisional order - contention - no
knowledge of summoning order and date for
their appearance - Magistrate has no right to
issue bailable or non-bailable warrants without
sufficient service. (Para -19 )

HELD:-
Applicants
were
aware
of
the
summoning order and non-bailable warrant, and
were dishonestly or fraudulently avoiding court
appearance. Court issued non-bailable warrants,
indicating no illegality or infirmity in the orders
impugned. (Para-20,21)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal & ors., 2007 AIR SCW 6679
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Purushottam Chaudhary Vs C.B.I. Thru. The
Superintendent
of
Police
CBI/ACB
Lko
,
Application U/S 482 No. - 1974 of 2023

3. Inder Mohan Goswami Vs St. of Uttaranchal,
(2007) 12 SCC 1

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Rajak Kumar Shukla,
learned counsel for the applicants and Mr.
K.P. Pathak, learned AGA for the State.

2. This application under Section 482
Cr.P.C. has been filed with the prayer to
quash
the
impugned
orders
dated
15.03.2023,
16.02.2023,
16.01.2023,
14.10.2022,
05.09.2022,
25.08.2022,
15.07.2022, 09.06.2022 passed by learned
Chief Judicial Magistrate, Firozabad in
Criminal Case No.2685 of 2019 (State vs.
Jaypal Singh and others), arising out of
Case Crime No.528 of 2017, under
Sections 302, 120B IPC, Police StationShikohabad, District-Firozabad, pending
before
the
Court
of
Chief
Judicial
Magistrate, Firozabad.

3. The factual matrix of the case is
that:-

(i) An FIR was lodged by the
opposite party no.2 on 16.07.2017 at about
13:10 hrs. against the applicants and 5
other accused persons under Section 302
IPC, which came to be registered as Case
Crime
No.0528
of
2017
with
the
allegations that the opposite party no.2,
Geetam Singh was presently residing in the
house of K.K. Yadav alongwith his son
Raghvendra Singh. His son was having
some dispute with his wife Kavita. On
04.06.2017 at about 08:00 a.m., the
informant went to his office and his son
Raghvendra was alone in the house, the
landlord and others had gone to take bath,
at about 11:50 hrs., on the occasion of
Ganga Dussehra, the informant received a
phone call from Kavita (his daughter-inlaw),
who
inquired
whereabouts
of
Raghvendra. She also stated that despite
repeated calls, her phone call was not being
received
by
Raghvendra.
She
also
requested the informant to go there and find
out about the same. On receiving such
information, the informant tried to call
Raghvendra, but his phone call was not
picked up and, thereafter, he with his
government vehicle and other police
personnels, i.e. Constables Anil Kumar,
Virendra Singh and driver Anand went at
his rented house and saw that his son was
lying on his knees on the ground having a
plastic rope around his neck. The informant
and others immediately opened the noose
and he took his son to the government
hospital,
Shikohabad,
where
he
was
declared
dead
by
the
doctors.
The
informant was in a state of shock, filled the
Panchayatnama and the postmortem of the
deceased Raghvendra was conducted. In
the postmortem report, the cause of death
was due to strangulation. Thereafter, the
dead body of the deceased was brought by
the informant to Mathura and after last rites
and other ceremonies were performed,
Jeetu s/o Bachchoo Singh, resident of VillNavali, Mathura told the informant that on
13.04.2017, Jaypal and Naresh came on
motorcycle and took him alongwith them to
in-laws house of Raghvendra. There
Raghvendra's wife, Kavita and his father;
Deshraj, his brother; Monu and Kavita's
brother-in-law; Jeetendra, sister; Meena
were present. Thereafter, Kavita said that
she wants to teach a lesson to Raghvendra
and taking assistance of Jaypal and Naresh,
she will finally succeed in doing so. They
accordingly, planned for the same. Jeetu
requested the aforesaid persons not to do
8 All. Jaypal & Anr. Vs. State of U.P. & Anr.
1217
any such thing as Raghvendra was his
brother-in-law (sala). Jeetu was threatened
for life by Jaypal stating that in case he
informs the aforesaid plan to someone, he
be ready to face dire consequences.

(ii)
On
02.06.2017,
Jaypal
alongwith Pushplata (informant's daughter)
came to village Pali Kheda and on
04.06.2017, Jaypal and Naresh left their
house at 07:00 a.m. in the morning, stating
that they were going to the market for some
work and will come back at 04:00 p.m.
When they came, their face was covered
with clothes and they were terrified. They
told the informant's daughter that his
brother; Raghvendra wants to meet her.
The aforesaid facts were told by Pushplata
to the informant and on the basis of the
aforesaid
information,
he
was
fully
confident that his son Raghvendra has been
murdered by Jaypal, Naresh, Kavita, Monu,
Deshraj, Jeetendra and Meena. Hence, the
present F.I.R. was lodged.

(iii) During investigation, as no
evidence could be collected against the
accused persons including the applicants,
therefore,
the
Investigating
Officer
submitted final report on 29.10.2017, but
the final report was not forwarded to the
court as the Circle Officer directed for
further investigation in the matter. During
further
investigation
on
8.10.2018
respondent no. 2 moved an application to
the investigating officer that the case
lodged by him may be dropped. Thereafter,
the investigating officer investigated the
matter further and approved the final report
dated 29.10.2017 and forwarded the same
to the court concerned.

(iv) Against the aforesaid final
report dated 29.10.2017, the opposite party
no.2 filed a protest petition on 21.10.2019
before the court below. Thereafter, on
07.11.2019 the Chief Judicial Magistrate
concerned rejected the said final report and
summoned the applicants and others, under
Section 302, 120-B I.P.C.

(v) Aggrieved by the aforesaid
summoning order dated 07.11.2019, the
applicants preferred a criminal revision
before the court concerned, which was
dismissed on 10.05.2022. Against the
aforesaid order dated 10.05.2022, the
applicant no.1-Jaypal Singh approached
before this Court by means of filing a
petition
under
Article
227
of
the
Constitution of India bearing No.7505 of
2022, wherein the Co-ordinate Bench of
this Court was pleased to grant interim
protection
to
the
applicant
therein.
However, the applicant no.2; Naresh
Kumar and others have filed a petition
bearing Matters Under Article 227 No.4722
of
2022,
challenging
the
aforesaid
revisional order dated 10.05.2022, which
was dismissed by the Co-ordinate Bench of
this Court vide order dated 29.08.2022
mentioning therein that as there is an eye
witness account, therefore, the court did not
find any illegality in the impugned orders
dated 07.11.2019 and 10.05.2022.

(vi) Subsequently, the applicant
no.1; Jaypal Singh has filed anticipatory
bail application No.7343 of 2022, whereas
applicant no.2; Naresh Kumar and others
have filed anticipatory bail application
no.7503 of 2022, which were dismissed by
the Co-ordinate Bench of this Court vide
order dated 01.11.2022.

(vii) The other accused persons,
namely, Smt. Kavita, Monu @ Rishi,
Deshraj and Meena have filed anticipatory
bail application nos.7287 of 2022, 7304 of
2022, 7286 of 2022 and 7701 of 2022
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
respectively, which were granted by the coordinate Bench of this Court vide orders
dated 01.11.2022 on the ground that eye
witnesses have not taken their names.

(v) As the anticipatory bail
applications of the applicants; Jaypal Singh
and Naresh were rejected on 01.11.2022,
prior to which they have already been
summoned by the court concerned vide
order dated 07.11.2019 and the revision,
filed against the aforesaid summoning
order, has also been dismissed way back in
10.05.2022,
therefore,
the
applicants,
despite having knowledge of the case, are
avoiding appearance before the court
concerned. Hence, the applicants were
again
summoned
vide
order
dated
09.06.2022.

(vi) Subsequently, an application
was moved by the informant on 15.07.2022
for issuing Non-bailable Warrants against
the applicants. Pursuant to the aforesaid
application, the concerned Magistrate has
issued non-bailable warrants against the
applicants vide order dated 15.07.2022.
Thereafter, vide order dated 25.08.2022,
proceedings under Section 82 Cr.P.C. were
initiated
against
the
applicants.
The
applicants preferred an application before
the court concerned alongwith affidavit and
status of the case pending before this Court,
which was rejected by the court below vide
order dated 14.10.2022 issuing process
under Section 82 & 83 Cr.P.C. against the
applicants. Again on 15.03.2023, as the
accused persons including the applicants
were not appearing before the court
concerned, proceedings U/s 82&83 Cr.P.C.
were initiated. Thus, the present case has
been filed challenging the aforesaid orders
dated 15.03.2023, 16.02.2023, 16.01.2023,
14.10.2022,
05.09.2022,
25.08.2022,
15.07.2022 and 09.06.2022.
SUBMISSIONS BY THE
APPLICANTS:-

4. Learned counsel for the applicants
submits that by the order dated 17.05.2022,
the concerned Magistrate has summoned
the applicants. However, summon has not
been served on the applicants in terms of
section 66 Cr.P.C. which provides that
where the persons summoned are in active
service of the Government, the Court
issuing the summons shall ordinarily send
it in duplicate to the head of the office in
which such person is employed; and such
head shall thereupon cause the summons to
be served in the manner provided by
Section 62, and shall return it to the Court
under his signature with the endorsement
required by that section.

5. He further submits that the
concerned court has fixed the next date i.e.
09.06.2022. On that date, straightaway
Non-Bailable Warrant has been issued on
the application moved by the informant,
without verifying the fact as to whether the
applicants have been informed about the
date fixed i.e. 09.06.2022. Thereafter, on
third date 15.07.2022, the learned trial
court again issued N.B.W. against the
applicants
through
S.P.,
Badaun.
Subsequently, on 25.08.2022, the learned
trial court straightaway issued N.B.W. and
proclamation of Section 82 Cr.P.C. again,
without verifying the fact as to whether the
applicant is aware about the N.B.W. being
issued on 15.07.2022.

6. He further submits that the
Magistrate has no right to issue bailable
warrant
or
non-bailable
warrant
or
proclamation and attachment U/s 83&83
Cr.P.C., without sufficient service of
summon. In support of his contention, he
has relied upon the judgment of Apex
8 All. Jaypal & Anr. Vs. State of U.P. & Anr.
1219
Court in the case of Inder Mohan
Goswami
and
Anr.
vs.
State
of
Uttaranchal and Ors., 2007 AIR SCW
6679, wherein the Hon'ble Apex Court has
deprecated such exercise being adopted by
the learned trial court. He has also relied
upon the judgment of this Court in the case
of Purushottam Chaudhary vs. Central
Bureau
of
Investigation
Thru.
The
Superintendent of Police CBI/ACB Lko;
decided
on
27.02.2023
passed
in
Application U/S 482 No. - 1974 of 2023.

7. Learned counsel for the applicants,
therefore, submitted that the aforesaid
impugned orders have been passed by the
concerned
Magistrate
in
illegal
and
arbitrary manner. Therefore, the same are
liable to be set aside by this Court.

SUBISSIONS OF THE LEARNED
A.G.A. FOR THE STATE:-

8. Per contra, learned AGA for the
State submits that there is no illegality or
infirmity in the orders impugned as the
applicants have sufficient knowledge about
the summoning order dated 07.11.2019
against which revision has been filed,
which was also rejected, despite the
aforesaid, the applicants are avoiding
appearance
before
the
court
below.
Therefore, the court concerned had no other
option but to issue Non-bailable warrants
and proclamation U/s 82 & 83 Cr.P.C.

9. On the cumulative strength of the
aforesaid submissions, learned A.G.A.
states that this Court may not exercise its
inherent power under Section 482 Cr.P.C.
in the present case, and hence the present
application is liable to be rejected.

ANALYSIS, REASONING AND
CONCLUSION:-

10. I have considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
application.

11.

One
of
the
fundamental
foundations of criminal justice system in
India is that the accused of an offence has
to be present during the entire process of
the criminal trial. The concept of ex-parte
trial is alien to the Indian legal system as
well as the fundamentals of a fair trial
enshrined in Article 21 of the Constitution
of India. The presence of the accused is
necessary both for the framing of the
charge and for recording of evidence
during the trial. It is imperative, therefore
that the court issues guidelines to ensure
that a proper procedure is put in place with
the use of modern technology to achieve
the above.

12. Chapter VI of the Code of
Criminal Procedure provides for "processes
to compel appearance". Chapter VI of the
Code is divided into four parts:-

"Part A - Summons ( Sections 60
- 69), Part B - Warrant of Arrest (Sections
70-81),
Part
C
-
Proclamation
&
Attachment (Sections 82-86), Part D -
Other rules regarding processes (Sections
87 - 90)".

13. The issuance of Non-bailable
Warrants
involves
interference
with
personal liberty. Arrest and imprisonment
means deprivation of the most precious
right of an individual. Therefore, the courts
have to be extremely careful before issuing
non-bailable warrants.

14. The Court feels that Non-bailable
Warrant should be issued to bring a person
to court when summons or bailable
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
warrants would be unlikely to have the
desired result. This could be when: (a) it is
reasonable to believe that the person will
not voluntarily appear in court; or (b) the
police authorities are unable to find the
person to serve him with a summon; or (c)
it is considered that the person could harm
someone if not placed into custody
immediately.

15. As far as possible, if the court is
of the opinion that a summon will suffice in
getting the appearance of the accused in the
court, the summon or the bailable warrants
should be preferred. The warrants either
bailable or non-bailable should never be
issued without proper scrutiny of facts and
complete application of mind, due to the
extremely
serious
consequences
and
ramifications which ensue on issuance of
warrants. The court must very carefully
examine whether the criminal complaint or
FIR has not been filed with an oblique
motive.

16. In the judgement of Apex court in
the case of Inder Mohan Goswami v. State
of Uttaranchal, reported in (2007) 12 SCC
1, it has been held that issuance of nonbailable warrants interferes with personal
liberty and the Courts should be extremely
careful
before
issuing
non-bailable
warrants. The Apex Court further held that
warrants, either bailable or non-bailable,
should never be issued without proper
scrutiny of facts and complete application
of mind. What has to be ensured is that the
concerned person was made aware about
the legal process pending against him. The
relevant portion of the judgment in Inder
Mohan Goswami (supra) is reproduced
hereinbelow:-

―Personal
liberty
and
the
interest of the State

"50. Civilized countries have
recognized that liberty is the most precious
of all the human rights. The American
Declaration of Independence, 1776, French
Declaration of the Rights of Men and the
Citizen, 1789, Universal Declaration of
Human Rights and the International
Covenant of Civil and Political Rights,
1966 all speak with one voice--liberty is the
natural and inalienable right of every
human being. Similarly, Article 21 of our
Constitution proclaims that no one shall be
deprived of his liberty except in accordance
with procedure prescribed by law.

51. The issuance of non-bailable
warrants
involves
interference
with
personal liberty. Arrest and imprisonment
means deprivation of the most precious
right of an individual. Therefore, the courts
have to be extremely careful before issuing
non-bailable warrants.

52. Just as liberty is precious for
an individual so is the interest of the
society in maintaining law and order. Both
are extremely important for the survival of
a civilised society. Sometimes in the larger
interest of the public and the State it
becomes absolutely imperative to curtail
freedom of an individual for a certain
period, only then the non-bailable warrants
should be issued."

17. For issuance of a proclamation
under Section 82 of the Code, it is
necessary that the Court has to be satisfied
on the basis of material that a person,
despite having knowledge of proceeding, is
avoiding the process issued.

18. The court is empowered under
Section 83 of the Code to order attachment
of
the
movable
and/or
immovable
properties of the Proclaimed person at any
8 All. M/S Bansal Construction, Muzaffarnagar Vs. Yamuna Expressway Industrial Development
 Authority, G.B. Nagar & Ors.
1221
time after the issuance of the proclamation
under Section 82 of the Code.

19. So far as the submission made by
the learned counsel for the applicants
regarding the Magistrate having no right to
issue bailable warrants or non-bailable
warrants or proclamation/attachment U/s
82&83 Cr.P.C. without sufficient service,
the
Court
finds
that
initially,
the
summoning
order
was
passed
on
07.11.2019 against which criminal revision
has been filed by the applicants, which has
been rejected vide order dated 10.5.2022
and,
thereafter,
the
applicants
had
approached this Court by filing the writ
petition under Article 227 challenging the
revisional order dated 10.5.2022, therefore,
it cannot be said that the applicants have no
knowledge about the summoning order or
date fixed for appearance before the court
below.

20. In the present case, the
applicants were well aware of the
summoning
order
and
non-bailable
warrant issued against them, and clearly,
the
applicants
were
dishonestly
or
fraudulently avoiding appearance before
the court below. Therefore, the court
concerned has no other option but to
issue non-bailable warrants along with
the proceedings under sections 82&83
Cr.P.C. Hence, there is no illegality or
infirmity in the orders impugned.

21. For the reasons stated above, this
Court is of the opinion that this is not a fit
case to exercise jurisdiction of this Court
under Section 482 Cr.P.C., therefore,
prayer so made is refused.

22. With the aforesaid observations,
the present application under Section 482
Cr.P.C. is, accordingly, dismissed.
----------
(2023) 8 ILRA 1221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Arbitration & Concili. Appl. U/S 11(4) No. 142 of
2019

M/S Bansal Construction, Muzaffarnagar
 ...Applicant
Versus
Yamuna
Expressway
Industrial
Development Authority, G.B. Nagar & Ors.
 ...Opposite Parties

Counsel for the Applicant:
Sri J.P. Pandey

Counsel for the Opposite Parties:
Sri Aditya Bhushan Singhal, Sri Priyansh
Shukla

Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 11(6) & 12(5) r/w
Seventh
Schedule
-
Request
for
appointment of arbitrator - Clause 33 of
agreement
restricting
arbitration
to
CEO/nominee of YEIDA - Such clause in
conflict with Section 12(5) rendering CEO
ineligible - Whether arbitration clause
survives? - Held, yes. Core intent to refer
dispute to arbitration remains - Procedural
invalidity of appointing authority (i.e.
CEO) can be severed - Neutrality of
arbitrator is the statutory mandate - Court
empowered
to
appoint
independent
arbitrator - Clause ousting arbitration in
absence
of
departmental
nominee
violative
of
public
policy
and
not
enforceable.

Held:
Clause in agreement restricting arbitration to
CEO of YEIDA or his nominee, and ousting
arbitration if such appointment is not possible,
cannot override statutory requirement under