# Kamal-Ud-Din @ Babu v. State of U.P. And Another

- **Citation:** (2010) 2 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-11
- **Case number:** Criminal Application No. 1882 of 2010
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-ud-din-babu-v-state-of-u-p-and-another-41584
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section-397Criminal
Revision-against
summoning
order-offense v/s 406, 409, 411 I.P.C.-
dismissed on ground of interlocutory
order-revision
not
maintainable-heldLearned
Revisional
Court
committed
manifest error of law- order Quashed-
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Test for consideration of final and
interlocutory order given.

Held: Para 5

Whenever it is contended that any
particular order is an୲ interlocutory
order
and
the
revision
is
not
maintainable under section 397 CrPC,
the
proper
test
to
appreciate
the
submission is whether the proceeding
would
culminate
in
the
event
of
acceptance
of
the
objection
raised
against the order. If the proceeding
would continue even after acceptance of
the
objection,
the
order
would
be
interlocutory
but
in
the
event
of
acceptance
of
the
objection
if
the
proceedings of the case culminate, the
order will not be an interlocutory order.
If this test is applied in the present case,
the summoning order can not be said to
be an interlocutory order because if the
revision filed by the petitioner had been
allowed and the summoning order had
been quashed, the proceedings initiated
on complaint filed by the respondent
no.2 would have culminated. Therefore,
the learned Special Judge has committed
manifest error of law in treating the
summoning order as interlocutory order
and dismissing the revision as not
maintainable.
Case law discussed:
2005 (1) LP 58 (S.C.), 2004 (6) SCC page 662,
SCC page 338.

## Text

2 All] Shrimati Anjuman V. Sri Shabbir
455
2009 under sections 452,323, 504 and
506 IPC and 3(1)(X) of the Scheduled
Castes & Scheduled Tribes (Prevention of
Atrocities) Act, P.S. Lonar, District Hardoi
pending before the Additional Chief
Judicial Magistrate, Court No. 5, Hardoi
appear before the courts below and
apply for bail within one month, their
bail prayer shall be considered and
disposed of by the courts below on the
same day in the light of the principles
laid down in the case of Lal Kamlendra
Pratap Singh versus State of U.P. &
others (2009) 4 SCC 437.

(Delivered By Hon'ble Shri Kant Tripathi, J.)

1. Heard the learned counsel for the
applicants and the learned AGA and
perused the record.

2. The learned Magistrate, keeping
in view the materials on record, arrived at
the conclusion that there were sufficient
material on record to summon the
accused. The finding of the learned
Magistrate is based on proper appraisal of
the relevant material. The petition has no
merit and is liable to be dismissed.

3. The learned counsel for the
applicants further submitted that the
applicants, being law abiding citizen,
want to appear before the courts below to
seek bail, therefore, he may be provided
some interim protection.

4. It is, however, provided that if the
applicants Sudhakar Singh alias Bhannu
Singh Pradhan, Laxman, Shri Chand alias
Lala Chauhan, Bhannu Singh alias
Satyapal Singh, Ramendra alias Vinda
Singh in Complaint Case No. 2081 of
2009 under sections 452,323, 504 and 506
IPC and 3(1)(X) of the Scheduled Castes
& Scheduled Tribes (Prevention of
Atrocities) Act, P.S. Lonar, District
Hardoi pending before the Additional
Chief Judicial Magistrate, Court No. 5,
Hardoi appear before the courts below
and apply for bail within one month, their
bail prayer shall be considered and
disposed of by the courts below on the
same day in the light of the principles laid
down in the case of Lal Kamlendra
Pratap Singh versus State of U.P. &
others (2009) 4 SCC 437.

5. Till the surrender of the applicants
before the Court or expiry of the aforesaid
period of one month, whichever is earlier,
the applicants shall not be arrested.

6. With the aforesaid observations
the petition under section 482 CrPC is
disposed of.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED LUCKNOW 11.05.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 1882 of 2010
Case: U/S 482/378/407

Kamal-Ud-Din @ Babu
 ...Petitioner
Versus
State of U.P. And Another ...Respondent

Counsel for the Petitioner:
Abhishek Ranjan

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section-397Criminal
Revision-against
summoning
order-offense v/s 406, 409, 411 I.P.C.-
dismissed on ground of interlocutory
order-revision
not
maintainable-heldLearned
Revisional
Court
committed
manifest error of law- order Quashed-
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Test for consideration of final and
interlocutory order given.

Held: Para 5

Whenever it is contended that any
particular order is an୲ interlocutory
order
and
the
revision
is
not
maintainable under section 397 CrPC,
the
proper
test
to
appreciate
the
submission is whether the proceeding
would
culminate
in
the
event
of
acceptance
of
the
objection
raised
against the order. If the proceeding
would continue even after acceptance of
the
objection,
the
order
would
be
interlocutory
but
in
the
event
of
acceptance
of
the
objection
if
the
proceedings of the case culminate, the
order will not be an interlocutory order.
If this test is applied in the present case,
the summoning order can not be said to
be an interlocutory order because if the
revision filed by the petitioner had been
allowed and the summoning order had
been quashed, the proceedings initiated
on complaint filed by the respondent
no.2 would have culminated. Therefore,
the learned Special Judge has committed
manifest error of law in treating the
summoning order as interlocutory order
and dismissing the revision as not
maintainable.
Case law discussed:
2005 (1) LP 58 (S.C.), 2004 (6) SCC page 662,
SCC page 338.

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard the learned counsel for the
applicant Kamal-ud-din @ Babu and the
learned AGA and perused the impugned
judgment.

2. With the consent of the learned
counsels for the parties, this petition is
being disposed of finally at the stage of
admission.

3. It appears that the police
submitted a final report in the case crime
no. 9 of 2004 under sections 406, 409,
411 IPC, police station Risiya, district
Bahraich. The Ist Additional Civil Judge
(Junior Division)/ J.M., Bahraich treated
the
final
report
as
complaint
and
proceeded with the same and ultimately
passed the summoning order dated
11.7.2006, against which the applicant
preferred criminal revision no. 541 of
2006, which was dismissed on 20.2.2009
by the Special Judge (SC/ST Act),
Bahraich on the ground that the revision
was not maintainable in view of the
principles of law laid down by the Apex
Court in the cases of (1) Poonam Chand
Jain vs. Fazaroo 2005 (1) LP 58(S.C.),
(2) Subrahmaniyam Sethuraman vs.
State of Maharashtra & others 2004 (6)
SCC page 662, and (3) Adalat Prasad vs.
Roop Lal Jindal & others 2004 (7) SCC
page 338 (Three Judge Bench), and held
that the only remedy, which could be
available to the applicant, was to file a
petition under section 482 CrPC. The
aforesaid cases relied on by the learned
Additional Sessions Judge have not dealt
with the jurisdiction of the Sessions Judge
to hear a revision against the summoning
order.

4. The question whether or not the
summoning order is an interlocutory order
within the meaning of section 397 (2)
CrPC was neither raised nor decided in
the aforesaid cases. Therefore, the learned
Special Judge can not be said to be
justified in dismissing the revision as not
maintainable.

5. Whenever it is contended that any
particular order is an interlocutory order
and the revision is not maintainable under
section 397 CrPC, the proper test to
2 All] Sudhakar Singh @ Bhannu Singh Pradhan V. State of U.P. and another
457
appreciate the submission is whether the
proceeding would culminate in the event
of acceptance of the objection raised
against the order. If the proceeding would
continue even after acceptance of the
objection,
the
order
would
be
interlocutory
but
in
the
event
of
acceptance of the objection if the
proceedings of the case culminate, the
order will not be an interlocutory order. If
this test is applied in the present case, the
summoning order can not be said to be an
interlocutory order because if the revision
filed by the petitioner had been allowed
and the summoning order had been
quashed, the proceedings initiated on
complaint filed by the respondent no.2
would have culminated. Therefore, the
learned Special Judge has committed
manifest error of law in treating the
summoning order as interlocutory order
and dismissing the revision as not
maintainable.

6. The petition under section 482
CrPC is allowed. The impugned order
dated 20.2.2009 passed by the revisional
court is set aside and the matter is
remanded to the learned Special Judge for
a fresh decision in accordance with law.

7. The revisional court is directed to
dispose of the revision expeditiously. The
learned
counsel
for
the
petitioner,
however, submitted that the trial court
may be directed not to proceed with the
criminal case till the disposal of the
revision by the learned Special Judge. It is
not necessary to pass any order in this
regard. The petitioner may move an
application for stay before the revisional
court and if any such application is
moved, the same may be considered and
disposed of in accordance with law.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.05.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 1895 of 2010
Case: U/S 482/378/407

Ram Rang Bharti

 ...Petitioner
Versus
State of U.P. And Another ...Respondent

Counsel for the Petitioner:
Surya Narayan Mishra

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure, Section 319
Summoning order-offence under Section
307 I.P.C.-on basis of statement made by
three prosecution witnesses-Trials Judge
not
recorded
basis
of
satisfaction
regarding conviction of applicant-and
the
evidence
adduced
remains
uncontroverted-absence
of
such
findings-Summoning
order-can
not
Sustainble.

Held: Para 23

In the instant case the court below while
passing the order under section 319
CrPC, has not recorded any specific
finding as to whether or not the evidence
adduced under section 319 CrPC if
unrebutted, would be sufficient to record
a conviction against the petitioner. In
absence of such finding, the impugned
order can not be sustained
Case law discussed:
(1983 (1) SCC 1), 2001 SCC (Crl) 1090,
(2007) 4 SCR 1023, 2008 (16) SCALE 276,
(2007) 4 SCC 773, 2009 (66) ACC 32,