# Kamal Kumar Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 10 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Criminal Revision No. 5479 of 2022
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-kumar-revisionist-v-state-of-u-p-anr-49333
- **Pages:** 6

## Headnote

352 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A. Kumar Dhananjay

(A) Criminal Law - Criminal Law - The
Code of Criminal Procedure, 1973
-
Section 397 r. w. Section 401 - revision -
The Negotiable instruments Act, 1981-
Section 138 - Compromise can be made
between the parties even in respect of
certain cognizable and non-compoundable
offences
-
ex
debito
justitiae
-
Encouraging compromises between parties
can
promote
social
harmony
and
happiness.(Para - 7, 14)

Criminal revision - to set aside judgments and orders -
Complaint under Section 138 of NI Act.- compromise
between parties - verified by Court.(Para -3,5)

HELD:- Both parties reached a compromise, verified by
the court, and it would not serve to keep the criminal
proceedings pending, leading to the appellate court's
judgment and Magistrate's conviction of the revisionist.
Parties can compound offences under Section 138 N.I.
Act read with Section 147 of the said Act , and
complainants can pray to the court for release of
accused through jurisdiction under Section 397/401
Cr.P.C.
(Para-8,15)

Criminal Revision allowed. (E-7)

LIST OF CASES CITED:-

## Text

10 All. Kamal Kumar Vs. State of U.P. & Anr.
351
will. He was pressurized by the accused
persons. In reply to the question asked by the
learned trial court, he stated that he was asked by
the accused persons to testify properly.

9. On the basis of above testimony of the
witness the learned trial court opined that the
revisionist has tempered the evidence and has
threatened the witness to testify in their favour.
The accused/ revisionists has violated the
conditions of bail imposed by this court.

10. In P.K. Shaji alias Thammanam Shaji
Vs. State of Kerala AIR 2006 SC 100, the
Hon'ble Apex Court observed that:

"6...It is equally true that the accused
who is on bail, should be heard before an order
of cancellation of bail is passed by the Court.
This Court in Gurdev Singh v. State of Bihar
[(2005) 13 SCC 286 : AIR 2000 SC 3556 (1) :
(2004) 4 Crimes 103] held that the accused must
be given notice and opportunity of hearing
before the bail granted to him is cancelled."

11. In view of above, it transpires that bail
cannot be cancelled without issuing notice to the
applicant and without affording them a reasonable
and sufficient opportunity of being heard. The
impugned order passed by the learned trial Court
is patently wrong. The learned Court below while
passing the impugned order completely ignored
the provision of law and the mandate given by the
Hon'ble Supreme Court. It appears that learned
trial court acted in a hurried manner and merely on
the basis of the statement of PW-3 Manoj Kumar
concluded that the revisionist had influenced the
witness and had also coerced the witness to give
testimony in their favour.

12. It is also observed that vide the
impugned order the learned trial court sent the
revisionists to the judicial custody which was not
in accordance with the law given the facts and
circumstance of the case. If the trial court was of
the opinion that the revisionists had violated any
condition of the bail order passed by this Court or
they had coerced the witness, the trial court was
legally bound to serve a notice to the revisionists
to show them a cause as to why their bail should
not be cancelled. And after hearing the
revisionists, the trial court ought to have passed the
order according to the law.

13. Therefore, the order passed by the
learned trial court suffers with illegality and hence
not sustainable. As a result, the revision deserves
to be allowed.

Order

14. This criminal revision is allowed, and
the impugned order is set aside.

15. Learned trial court is directed to release
the revisionists forthwith against the same bail
bonds filed by them pursuant to bail orders passed
by this court.

16. Registrar (Compliance) is directed to
communicate this order to the court concerned
through the District Judge, Kasganj through email for immediate compliance.
----------
(2023) 10 ILRA 351
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2023
BEFORE
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 5479 of 2022

Kamal Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Vikrant Rana

Counsel for the Opposite Parties:
352 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A. Kumar Dhananjay

(A) Criminal Law - Criminal Law - The
Code of Criminal Procedure, 1973
-
Section 397 r. w. Section 401 - revision -
The Negotiable instruments Act, 1981-
Section 138 - Compromise can be made
between the parties even in respect of
certain cognizable and non-compoundable
offences
-
ex
debito
justitiae
-
Encouraging compromises between parties
can
promote
social
harmony
and
happiness.(Para - 7, 14)

Criminal revision - to set aside judgments and orders -
Complaint under Section 138 of NI Act.- compromise
between parties - verified by Court.(Para -3,5)

HELD:- Both parties reached a compromise, verified by
the court, and it would not serve to keep the criminal
proceedings pending, leading to the appellate court's
judgment and Magistrate's conviction of the revisionist.
Parties can compound offences under Section 138 N.I.
Act read with Section 147 of the said Act , and
complainants can pray to the court for release of
accused through jurisdiction under Section 397/401
Cr.P.C.
(Para-8,15)

Criminal Revision allowed. (E-7)

LIST OF CASES CITED:-

1. B.S. Joshi & ors. Vs St. of Har. & anr., (2003)4 SCC
675

2. Nikhil Merchant Vs C.B.I., (2008) 9 SCC 677

3. Manoj Sharma Vs St. & ors., (2008) 16 SCC 1
4. Gian Singh Vs St. of Punj., (2012); 10 SCC 303

5. Narindra Singh & ors. Vs St. of Punj., ( 2014) 6 SCC
466

6. St. of M.P. Vs Laxmi Narayan & ors., (2019) 5 SCC
688

7. Arun Singh & ors. Vs St. of U.P. & anr., (2020) 3 SCC
376

8. Shaifullah & ors. Vs St. of U.P. & anr., 2013 (83) ACC
278
9. Popular Muthiah Vs St. Represented By Inspector of
Police , (2006) 7 SCC 296

10. Ramgopal & anr. Vs St. of M.P. , 2021 SCC OnLine
834

(Delivered by Hon'ble Shiv Shanker Prasad, J.)

1. Supplementary affidavit filed today on
behalf of the revisionist is taken on record.

2. Heard Mr. Vikrant Rana learned counsel
for the revisionist, the learned Additional
Government Advocate for the State, and learned
counsel for opposite party no.2 as well as perused
the materials on record.

3. This criminal revision has been
filed for setting aside the impugned
judgment and order dated 30.09.2022
passed by learned Additional District and
Session Judge, Court No. 15, Meerut in
Criminal Appeal No. 135 of 2017 (Kamal
Kumar Vs. State of U.P. and Others) and
impugned judgment and order dated
18.10.2017 passed by learned Additional
Chief Judicial Magistrate, Court No. 5,
Meerut in Complaint Case No. 654 of 2008
(Atul Rastogi Vs. M/s Maci Organics
Limited and Others), under Section 138 of
Negotiable Instruments Act.

4. On 25.07.2023, the Court has
passed following order:

"Heard learned counsel for the
revisionist, Sri Kumar Dhananjay, learned
counsel for opposite party no.2 and the
learned A.G.A. for the State.

This revision has been filed for
setting aside the impugned judgment and
order dated 30.09.2022 passed by learned
Additional District and Session Judge,
Court No. 15, Meerut in Criminal Appeal
10 All. Kamal Kumar Vs. State of U.P. & Anr.
353
No. 135 of 2017 (Kamal Kumar Vs. State of
U.P. and Others) and impugned judgment
and order dated 18.10.2017 passed by
learned
Additional
Chief
Judicial
Magistrate, Court No. 5, Meerut in
Complaint Case No. 654 of 2008 (Atul
Rastogi Vs. M/s Maci Organics Limited
and Others), under Section 138 of
Negotiable Instruments Act.

It is submitted on behalf of the
revisionist that both the parties are known
to each other very well and the dispute
between them is due to money. He further
submits that on account of intervention of
well-wishers of the revisionist and opposite
party no.2, they have settled their disputes
and arrived at a compromise. On the basis
of said compromise, an affidavit has been
filed by opposite party no.2 before the court
below that he does not want to press the
criminal proceedings initiated by him
against the revisionist. It is thus contended
to allow this revision and set aside the
impugned judgment and order passed by
the Trial Court on 30.09.2022 as well as
18.10.2017, under Section 138 of N.I. Act
and he be acquitted.

Learned counsel for opposite
party no.2 also does not dispute the
correctness of the submissions made by the
learned counsel for the revisionist.

Whether a compromise has taken
place or not can at best be ascertained by
the court, where the proceedings are
pending, after ensuring the presence of the
parties before it.

Put up this case on 22.08.2023 as
fresh before the appropriate Bench.

Learned counsels for the parties
undertake that they shall make a fresh
compromise application before the court
below within two weeks from today for
verification of the aforesaid compromise.
They further undertake to ensure their
presence before the court below or any
other transferee court, as the case may be,
on 16.08.2023 and the court concerned,
thereafter, shall ascertain the veracity of
the compromise. If the said compromise is
verified, the same shall be made part of the
record and report to that effect, will be
prepared and the parties would be allowed
to obtain certified copy thereof and file the
same before this Court.

Office is directed to send through
FAX a copy of this order within 24 hours.

Parties are also directed to
produce certified copy of this order along
with a fresh compromise application before
the court concerned within a week from
today.

Till the next date of listing, no
coercive steps would be taken against the
revisionist in pursuance of the impugned
judgment and orders dated 30.09.2022 and
18.10.2017."

5. Pursuant to the above order, the
learned
Additional
Chief
Judicial
Magistrate, Court No.5, Meerut vide order
dated
10.08.2023
has
verified
the
compromise so entered into between the
parties. Certified copies of the order of the
learned
Additional
Chief
Judicial
Magistrate, Court No.5, Meerut vide order
dated 10.08.2023 and the compromise have
been brought on record as annexure no.
SA-1 of the supplementary affidavit.

6. Learned counsel for the revisionist
submits that in view of compromise so
entered into between the parties, which has
also been verified by the concerned
Magistrate, the entire proceedings of the
aforesaid case are liable to be quashed.

7. Learned counsel for opposite party
no.2 has also not denied the aforesaid facts.
On instructions received from opposite
party no.2, he submits that he has no
354 INDIAN LAW REPORTS ALLAHABAD SERIES
objection, if the proceedings in the
aforesaid case are quashed.

8. Having considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
criminal revision, this Court is of the
considered opinion that since both the
parties have entered into compromise and
the same has also been verified by the court
below referred to above, no purpose would
be served by keeping the entire criminal
proceedings pending, which culminated
into the judgment and orders of the
appellate court as well as concerned
Magistrate convicting the revisionist.

9. This Court is not unmindful of the
following judgements of the Apex Court:

1. B.S. Joshi and others Vs.
State of Haryana and Another; (2003)4
SCC 675,

2. Nikhil Merchant Vs. Central
Bureau of Investigation; (2008) 9 SCC
677,

3. Manoj Sharma Vs. State and
Others; (2008) 16 SCC 1,

4. Gian Singh Vs. State of
Punjab; (2012); 10 SCC 303,

5. Narindra Singh and others
Vs. State of Punjab; ( 2014) 6 SCC 466,

6. State of Madhya Pradesh Vs.
Laxmi Narayan & Ors.; (2019) 5 SCC
688, and

7. Arun Singh & Others Vs. State
of U.P. & Another; (2020) 3 SCC 376.

10. In the aforesaid judgments, the
Apex Court has categorically held that
compromise can be made between the
parties even in respect of certain cognizable
and non compoundable offences. Reference
may also be made to the decision given by
this Court in Shaifullah and Others Vs.
State of U.P. & Another; 2013 (83) ACC
278. in which the law expounded by the
Apex court in the aforesaid cases has been
explained in detail.

11. However, for quashing the entire
criminal proceedings which have been
initiated by opposite party no.2 against the
revisionist which culminated into the
judgment and orders of the appellate court
as well as concerned Magistrate convicting
the revisionist, an issue is cropped up
before this Court as to whether this Court
while exercising its revisional power under
Section 397/401 of Code of Criminal
Procedure can quash the same or not on the
basis of compromise so entered into
between the parties?.

12. The Apex Court in the case of
Popular Muthiah Vs. State Represented
By Inspector of Police reported in (2006)
7 SCC 296 in paragraph nos. 29 and 30 has
held as follows:

"29. The High Court while, thus,
exercising its revisional or appellate power,
may exercise its inherent powers. Inherent
power of the High Court can be exercised,
it is trite, both in relation to substantive as
also procedural matters.

30. In respect of the incidental or
supplemental power, evidently, the High
Court can exercise its inherent jurisdiction
irrespective
of
the
nature
of
the
proceedings. It is not trammeled by
procedural restrictions in that

(i) power can be exercised suo
motu in the interest of justice. If such a
power is not conceded, it may even lead to
injustice to an accused.

(ii) Such a power can be
exercised concurrently with the appellate
or revisional jurisdiction and no formal
application is required to be filed therefor.
10 All. Kamal Kumar Vs. State of U.P. & Anr.
355

(iii) It is, however, beyond any
doubt that the power under Section 482 of
the Code of Criminal Procedure is not
unlimited. It can inter alia be exercised
where the Code is silent where the power of
the court is not treated as exhaustive, or
there is a specific provision in the Code; or
the statute does not fall within the purview
of the Code because it involves application
of a special law. It acts ex debito justitiae.
It can, thus, do real and substantial justice
for which alone it exists."
(Emphasis supplied)

13. Again in paragraph no.13 of the
judgment of the Apex Court in the case of
Ramgopal & Another Vs. State of
Madhya Pradesh along with connected
case reported 2021 SCC OnLine 834 has
opined as follows:

"13. It appears to us that
criminal
proceedings
involving
nonheinous offences or where the offences are
predominantly of a private nature, can be
annulled irrespective of the fact that trial
has already been concluded or appeal
stands
dismissed
against
conviction.
Handing out punishment is not the sole
form of delivering justice. Societal method
of applying laws evenly is always subject to
lawful exceptions. It goes without saying,
that the cases where compromise is struck
post- conviction, the High Court ought to
exercise such discretion wit rectitude,
keeping
in
view
the
circumstances
surrounding the incident, the fashion in
which the compromise has been arrived at,
and with due regard to the nature and
seriousness of the offence, besides the
conduct of the accused, before and after the
incidence. The touchstone for exercising
the extraordinary power under Section 482
Cr.P.C. would be to secure the ends of
justice. There can be no hard and fast line
constricting the power of the High Court to
do
substantial
justice.
A
restrictive
construction of inherent powers under
Section 482 Cr.P.C. may lead to rigid or
specious justice, which in the given facts
and circumstances of a case, may rather
lead to grave injustice. On the other hand,
in cases where heinous offences have been
proved against perpetrators, no such
benefit ought to be extended, as cautiously
observed by this Court in Narinder Singh &
Ors. Vs. State of Punjab Ors. And and
Laxmi Narayan (Supra)."

14. This Court is of the considered
opinion that the aim and object of law is
not only to punish the culprit, but, the
objective of the law is also to maintain
peace, tranquility, prosperity and harmony
in society as well as in the country. If there
is a compromise between two parties and
they
are
living
happily,
then
such
demeanour should encouraged a it tends to
promote social harmony. Tranquil setting
where there is no conflict or animosity
among the citizens of any country is a vital
part of society, which enables the citizens
to
find
stability
in
life
and
live
harmoniously. But as soon skirmish erupt
between two persons it often assume
serious
proportions,
resulting
in
commission of heinous crimes in which
family members/relativs/neighbours/friends
are also involved with the result that those
who could have counselled and brought
about rapprochement are rendered helpless
on their being arrayed as accused in the
criminal case. There are many other
reasons which need not be mentioned here
for not encouraging the litigation cropped
up due to money so that the parties may
ponder over their defaults and terminate
their
disputes
amicably
by
mutual
agreement instead of fighting it out in a
court of law where it takes years and years
356 INDIAN LAW REPORTS ALLAHABAD SERIES
to conclude and in that process the parties
lose their "young" days in chasing their
"cases" in different courts.

15. In view of the aforesaid
discussion, the parties, in reference to
offence under Section 138 N.I. Act read
with Section 147 of the said Act are at
liberty to compound the matter at any
stage. The complainant i.e. the person or
persons affected can pray to the court that
the accused, on compounding of the
offence may be released by invoking
jurisdiction of this Court under Section
397/401 Cr.P.C.

16. Generally, the powers available
under Section 397/401 Cr.P.C. would not
have been exercised when a statutory
remedy under the law is available, however
considering the peculiar set of facts and
circumstances it would not be in the
interest of justice to relegate the parties to
appellate court. Additionally when both the
parties have invoked the jurisdiction of this
Court and there is no bar on exercise of
powers and then the inherent powers of this
court can always be invoked for imparting
justice and bringing quietus to the issue
between the parties.

17. Accordingly, the present petition
under Section 397/401 Cr.P.C. is allowed in
terms of the compromise arrived at
between the parties to this litigation out of
court. The conviction and sentence under
Section 138 N.I. Act 1981 in Complaint
Case No. 654 of 2008 (Atul Rastogi Vs.
M/s Maci Organics Limited and Others),
under
Section
138
of
Negotiable
Instruments Act stands annulled as this
court intends, otherwise to secure the ends
of justice as provided under Section
397/401 Cr.P.C. The revisionist shall be
treated
as
acquitted
on
account
of
compounding of the offence with the
complainant/person
affected.
The
revisionist shall pay costs of Rs. 5000/-
(Rs. Five thousand Only) to the Opposite
party- State. Further, the amount of Rupees
37,500/-,
if
any
deposited
by
the
revisionist, as awarded, before the court
below while filing the appeal shall be
released in favour of opposite party no.2.
----------
(2023) 10 ILRA 356
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Election Petition No. 14 of 2022

Satyavir Tyagi ...Petitioner
Versus
Shahid Manzoor ...Respondent

Counsel for the Petitioner:
In Person, Sri Bharat Singh Pal, Sri Satyavir
Tyagi

Counsel for the Respondent:
Sri
Tawvab
Ahmed
Khan,
Sri
Syed
Khursheed Anwar Alvi

Civil Law - Representation of the People
Act, 1951 - Sections 80, 80A, 81, 83, 86,
87, 100, 123(8) & 135A - Code of Civil
Procedure, 1908 - Order VI Rule 16, Order
VII Rule 11 - Election Petition - Material
Facts and Particulars - Corrupt Practices -
Booth Capturing - Rejection of Plaint - The
petitioner, Satyavir Tyagi, filed an election
petition under Sections 80, 80A, and 81 of the
Representation of the People Act, 1951,
challenging the election of Shahid Manzoor as a
Member of the U.P. St. Legislative Assembly
from the 46-Kithore Constituency, alleging
corrupt practices and improper vote reception.
The respondent filed an application under Order
VI Rule 16 and Order VII Rule 11 CPC to strike