# Kamlesh Kumar Gupta v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-29
- **Case number:** Matters U/A 227 (Criminal ) No. 6372 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-gupta-v-state-of-u-p-ors-49002
- **Pages:** 6

## Headnote

G.A., Sri Padmaker Pandey, Sri V.P.
Srivastava (Senior Counsel), Sri Sunil
Kumar Srivastava, Sri Manish Tiwari (Senior
Counsel)

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 311- The
CMM suo-motu recalled the passed by
CMM, Court No. IX, District Kanpur by
which summoned the N.O.C. as well as
other documents from the concerned
department
further
directed
for
obtaining
the
handwriting
expert
against which order-Specific allegation
against the petitioner is that he in
order to grab the company without any
resolution of Board of Directors as well
as without any permission of Registrar
of Companies submitted a renewal
form before the Assistant Director
Factory
(Karkhana),
Uttar
Pradesh,
Kanpur
Division,
Kanpur
alleging
himself to be a proprietor and when
the authority asked for the resolution
passed by Board of Directors, the
petitioner
submitted
a
forged
and
fabricated document along with N.O.C.
alleged to have been issued by the
respondent no.2/complainant, thus to
arrive at a just decision of the case it
was
incumbent
upon
the
learned
Magistrate
to
summon
those
documents
from
the
concerned
authority and therefore, there is no
illegality in the impugned order, which
has been rightly upheld by the learned
Sessions Court.

Settled law that it is mandatory for the court tol
recall and re-examine any person if his evidence
appears to it to be essential to the just decision
of the case, hence no illegality committed in
summoning the documents by the Magistrate.
(Para 8)

Petition rejected. (E-3)

Case law/ Judgements relied upon:-

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 9 ILRA 256
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Matters U/A 227 (Criminal ) No. 6372 of 2021

Kamlesh Kumar Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Tripathi

Counsel for the Respondents:
G.A., Sri Padmaker Pandey, Sri V.P.
Srivastava (Senior Counsel), Sri Sunil
Kumar Srivastava, Sri Manish Tiwari (Senior
Counsel)

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 311- The
CMM suo-motu recalled the passed by
CMM, Court No. IX, District Kanpur by
which summoned the N.O.C. as well as
other documents from the concerned
department
further
directed
for
obtaining
the
handwriting
expert
against which order-Specific allegation
against the petitioner is that he in
order to grab the company without any
resolution of Board of Directors as well
as without any permission of Registrar
of Companies submitted a renewal
form before the Assistant Director
Factory
(Karkhana),
Uttar
Pradesh,
Kanpur
Division,
Kanpur
alleging
himself to be a proprietor and when
the authority asked for the resolution
passed by Board of Directors, the
petitioner
submitted
a
forged
and
fabricated document along with N.O.C.
alleged to have been issued by the
respondent no.2/complainant, thus to
arrive at a just decision of the case it
was
incumbent
upon
the
learned
Magistrate
to
summon
those
documents
from
the
concerned
authority and therefore, there is no
illegality in the impugned order, which
has been rightly upheld by the learned
Sessions Court.

Settled law that it is mandatory for the court tol
recall and re-examine any person if his evidence
appears to it to be essential to the just decision
of the case, hence no illegality committed in
summoning the documents by the Magistrate.
(Para 8)

Petition rejected. (E-3)

Case law/ Judgements relied upon:-

1. Hanuman Ram Vs The St. of Raj. & Ors 2009
(1) ACR 789 (SC)

2. Birla Corp. Ltd. Vs Adventz Investments &
Holdings Ltd. & ors, AIR 2019 Supreme Court
2390

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. The instant petition under Article
227 of the Constitution of India has been
filed for setting aside the order dated
16.11.2019
passed
by
learned
Chief
Metropolitan Magistrate, Kanpur Nagar in
Complaint Case No. 6077 of 2018 (Dinesh
Kumar Gupta Vs. Kamlesh Kumar Gupta
and another) under Sections 420, 467, 468,
471, 504, 506, 120-B I.P.C. Police Station
Kakadeo, District Kanpur Nagar, whereby
the learned Magistrate after exercise its
powers under Sections 311 and 202 Cr.P.C.
to arrive at just decision of the case has
summoned the N.O.C. along with relevant
documents from the concerned department
as well as to set aside the Judgement and
order dated 29.09.2021 passed by learned
Sessions Judge, Kanpur Nagar (Kamlesh
Kumar Gupta Vs. State of U.P. and
another), whereby criminal revision filed
by the petitioner against the order dated
16.11.2019 has been rejected.
9 All. Kamlesh Kumar Gupta Vs. State of U.P. & Ors.
257

2. Brief facts of the case are that the
respondent no.2 lodged a first information
report against the petitioner and his son
namely, Aseem Gupta with the averments that
the petitioner and the respondent no.2 are real
brother. Sri Chunni Lal, the father of the
petitioner as well as of the respondent no.2 had
established a company in the year 1983 in the
name and style of M/s Hazari Lal Laxmi
Narayan Private Limited, of which company,
the father was the Managing Director, on the
other hand, the petitioner and the respondent
no.2 were Directors. In the meantime, the
company purchased another company running
in the name and style of Kannico Cleaners
from its erstwhile owners and since then the
company was running in the name and style of
Kannico. On 30.03.2007, Sri Chunni Lal died.
After his death, the petitioner was looking
after the finance and account of the company
and the petitioner in order to grab the company
without any resolution of Board of Directors
as well as without any permission of Registrar
of Companies submitted a renewal form
before
the
Assistant
Director
Factory
(Karkhana), Uttar Pradesh, Kanpur Division,
Kanpur alleging himself to be a proprietor and
when the authority asked for the resolution
passed by Board of Directors, the petitioner
submitted a forged and fabricated document
along with N.O.C. alleged to have been issued
by the respondent no.2/complainant and Sri
Aseem Gupta, the son of the petitioner also
conspired in the act of the petitioner. Upon
aforesaid averments, a first information report
was lodged in Case Crime No. 0213 of 2018
under Sections 420, 467, 468, 471, 504, 506,
120-B I.P.C. at Police Station Kakadeo,
District Kanpur Nagar. Thereafter, the matter
was entrusted for investigation and on
31.07.2018,
the
Investigating
Officer
submitted charge sheet on the ground that
another Complaint Case No. 4961 of 2016
was filed by the respondent no.2 against the
accused person, wherein the accused persons
are facing trial and thus it is not legally tenable
to initiate another criminal proceedings but on
the protest petition, the learned Magistrate
directed for further investigation pursuant to
which, again final report dated 16.02.2019 was
submitted, again another protest petition was
filed upon which, the learned Magistrate, vide
order dated 22.05.2019 treated the case as a
complaint case. The case was registered as
Complaint Case No. 6077 of 2018 (Dinesh
Kumat Gupta Vs. Kamlesh Kumar Gupta)
under Sections 420, 467, 468, 471, 504, 506,
120-B I.P.C., in which statement of the
respondent no.2 was recorded under Section
200 Cr.P.C. During the pendency of the
proceedings, the respondent no.2 moved an
application under 91 Cr.P.C. for summoning
the N.O.C. as well as other documents from
the concerned department as a documentary
evidence but the same was rejected vide order
dated 19.08.2019, which order was never
challenged before any Court as such the order
dated 19.08.2018 became final. Thereafter, the
statement of son of Shubam Gupta was
recorded under Sections 200 Cr.P.C. and
during the course of trial, the learned Chief
Metropolitan Magistrate suo-motu recalled the
order dated 19.08.2019 passed by Chief
Metropolitan Magistrate Court No. IX, District
Kanpur by which summoned the N.O.C. as
well as other documents from the concerned
department further directed for obtaining the
handwriting expert against which order, the
petitioner preferred a criminal revision no. 580
of 2021 CNR No. UPKN01-006606 of 2021
(Kamlesh Kumar Gupta Vs. State of U.P. and
another) which was also rejected. It is these
two orders which are under challenge before
this Court.

3. Sri Manish Tiwary, learned Senior
Counsel submits that prior to initiation of
the instant proceedings civil suit was filed
by the respondent no.2 as well as his wife
being its Original Suit No. 984 of 2017 for
258 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent injunction whereby restraining the
petitioner to run the dry cleaning business in
the name of Kannico Dry Cleaners as the
trade mark was allocated to them since 2002
and another Original Suit No. 148 of 2017
was filed by the petitioner against the
respondent no.2 being its Original Suit No.
148 of 2017 which suits are pending
consideration. He further submits that apart
from the aforesaid civil suits, the respondent
no.2 in order to cause harm and harassment
had also filed a complaint before the Senior
Superintendent of Police, Kanpur Nagar for
lodging of the F.I.R. against the petitioner
upon which an enquiry was conducted by the
Circle Officer, Swaroop Nagar, District
Kanpur Nagar, stating therein that on the
same set of allegations another Complaint
Case No. 4961 of 2016 was filed by the
respondent no.2 as well as Civil Suit No. 148
of 2018 are also pending consideration. Again
another complaint was filed for registration of
the F.I.R. against the petitioner upon which a
report was submitted stating therein that on
the same set of facts a complaint case no.
4961 of 2016 is pending consideration thus
no further police proceedings is required. The
sole malafide intention of the respondent no.2
to exert pressure and influence upon the
pending suits and lastly the respondent no.2
succeded in getting the F.I.R. lodged against
the petitioner upon which twice final report
was submitted inpsite of the same, the
learned Magistrate has treated the case as a
complaint case. He further submits that once
the application under Section 91 Cr.P.C. filed
by the respondent no.2 itself, for summoning
the N.O.C. as well as other documents from
the Assistant Registrar Director Factory
(Karkhana) has been rejected vide order
dated 19.08.2018, which order was never
challenged
before
any
Court
by
the
respondent no.2, and recording of the
statement of son of the respondent no.2 under
Section 202 Cr.P.C. the respondent himself
has made an endorsement on the order sheet
that he does not want to file any evidence
which was also observed in the order dated
02.11.2019 then there was no occasion for the
learned Magistrate to suo-motu recalled its
order dated 19.08.2018 vide order dated
16.11.2019 and the same is also barred by
Section 362 Cr.P.C. He next submits that
even the handwriting expert came to the
conclusion that disputed signature respondent
no.2 was not executed by petitioner on the
N.O.C. and therefore, the impugned order is
not tenable in the eyes of law.

4. The petitioner being aggrieved by
the order dated 19.08.2018 had preferred a
criminal revisional before the learned
Sessions Court but the learned Sessions
Court instead of setting aside the order
dated 19.08.2018 has rejected the revision
in the illegal and arbitrary manner. Learned
counsel has lastly argued that the learned
Magistrate while exercise its powers under
Sections 311 and 202 Cr.P.C. had passed
the impugned order dated 16.11.2019 suomotu
whereas
Section
311
Cr.P.C.
specifically provides powers that at any
stager of any inquiry or trial or other
proceedings under the Code, the Court may
summon any person as a witeness or
examine any person in atteance, though not
summoned as a witness or recall and reexamine any person already examined and
the Court shall summon and examine or
recall and re-examine any such person if
his evidence appears to it to be essential to
the just decision of the case, while in the
instant case, the learned has not summoned
or recall any witness.

5. Advocate Gaurav Kakkar, appeared
before this Court and expressed his desire
to assist the Court upon which there is no
objection. Sri Kakkar has provided some
material to the court to decide this issue. He
9 All. Kamlesh Kumar Gupta Vs. State of U.P. & Ors.
259
placed the reliance of Hanuman Ram Vs.
The State of Rajasthan and Ors 2009 (1)
ACR 789 (SC). Paragraph Nos.. 5,6 and 9
are mentioned below:

"5. Reference may be made to
Section 311 of the Code which reads as
follows:

311. Power to summon martial
witness, or examine person present,-

Any court may, at any stage of
any inquiry, trial or other proceeding under
this Code, summon any person as a witness
or examine any person in attendance,
though not summoned as a witness or
recall and re-examine any person if his
evidence appears to it to be essential to the
just decision of the case.

6. The section is manifestly in two
parts. Whereas the word used in the first
part is "may", the second part uses "shall".
In consequences, the first part gives purely
discretionary authority to a Criminal Court
and enables it at any stage of an enquiry,
trial or proceeding under the Code (a) to
summon any one as a witness, or (b) to
examine any person present in Court, or (c)
to recall and re- examine any person whose
evidence has already been recorded. On the
other hand, the second part is mandatory
and compels the Court to take any of the
aforementioned steps if the new evidence
appears to it essential to the just decision
of the case. This is a supplementary
provision
enabling,
and
in
certain
circumstances imposing on the Court by
duty of examining a material witness who
would not be brought before it. It is
couched in the widest possible terms and
calls for no limitation, either with regard to
the stage at which the powers of the Court
should be exercised, or with regard to the
manner in which it should be exercised. It
is not only the prerogative but also the
plain duty of a Court to examine such of
those witnesses as it considers absolutely
necessary for doing justice between the
State and the subject. There is a duty cast
upon the Court to arrive at the truth by all
lawful means and one of such means is the
examination of witnesses of its own accord
when for certain obvious reasons either
party is not prepared to call witnesses who
are known to be in a position to speak
important relevant facts.

9. The object of Section 311 is to
bring on record evidence not only from the
point of view of the accused and the
prosecution but also from the point of view
of the orderly society. If a witness called by
Court
gives
evidence
against
the
complainant he should be allowed an
opportunity to cross-examine. The right to
cross-examine a witness who is called by a
Court arises not under the provision of
Section 311, but under the Evidence Act
which gives a party the right to cross-
examine a witness who is not his own
witness. Since a witness summoned by the
Court could not be termed a witness of any
particular party, the Court should give the
right
of
cross-examination
to
the
complainant.
These
aspects
were
highlighted in Jagat Ravi v. State of
Maharashtra (AIR 1968 SC 178), Rama
Paswan and Ors. v. State of Jharkhand
(2007 (11) SCC 191) and Iddar and Ors. v.
Aabida and Anr. (2007 (11) SCC 211)."

6. On the other hand, learned counsel
for the respondent no.2 as well as learned
A.G.A. for the State has vehemently
opposed the contentions as advanced by
learned counsel for the petitioner. Learned
counsel for the respondent no.2 has
submitted that the learned Magistrate has
committed no illegality in recalling the
260 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 19.08.2018 vide order dated
16.11.2019 to arrive at a just decision of the
case. He next submits that Sri Arun Kumar
Assistant Director (Factories) submitted all
the original documents, which were five in
numbers) including the forged NOC filed
by the accused person and on 07.12.2019 ,
the respondent no.2 filed an application
requesting the Court to keep all the original
documents
produced
by
the
Factory
Director under the sealed cover and the
learned trial Court after considering the
evidence under Section 200 and 202 Cr.P.c.
came to the conclusion that the accused
persons has to be summoned and thus has
rightly summoned the petitioner as well as
his son Aseem Gupta under Sections 420,
467, 468, 471, 504, 506, 120-B I.P.C. vide
order dated 13.12.2019 against the said
summoning order, the petitioner filed a
Criminal Revision No.81 of 2020 before
the learned Sessions Court, which too has
been dismissed. He next submits that the
petitioner also preferred a Criminal Misc.
(482) Application No. 9738 of 2021 against
the summoning order as well as order
passed by the revisional Court, before this
Court which was dismissed as withdrawn
vide order dated 22.07.2021. In the
meantime, the petitioner also filed a
Anticipatory Bail Application before the
learned Sessions Judge which was rejected
and the same is under challenge before this
Court and is now pending consideration.
He also submits that the order dated
16.11.2019 by which the learned Magistrate
has summoned the relevant documents in
exercise of powers under Section 200
Cr.P.C. is a fresh order and independent
order, which cannot be said to recalling the
earlier order dated 19.08.2018 .Learned
counsel for the respondent no.2 has placed
reliance upon the Judgement of Hon'ble
Apex Court reported in AIR 2019 Supreme
Court 2390 in the matter of Birla
Corporation
Limited
Vs.
Adventz
Investments and Holdings Limited and
ors, reported in AIR 2019 Supreme Court
2390 wherein it has been held that the order
of the Magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. The application of mind has to be
indicated by disclosure of mind on the
satisfaction. Considering the duties on the
part of the Magistrate for issuance of
summons to accused in a complaint case
and that there must be sufficient indication
as to the application of mind and observing
that the Magistrate is not to act as a post
office
in
taking
cognizance
of
the
complaint, At the stage of issuance of
process to the accused, the Magistrate is
not required to record detailed orders. But
based on the allegations made in the
complaint or the evidence led in support of
the same, the Magistrate is to be prima
facie satisfied that there are sufficient
grounds for proceeding against the accused.
Extensive reference to the case law would
clearly show that the allegations in the
complaint and complainant's statement and
other materials must show that there are
sufficient grounds for proceeding against
the accused..While ordering issuance of
process against the accused, the Magistrate
must take into consideration the averments
in
the
complaint,
statement
of
the
complainant examined on oath and the
statement of witnesses examined. since it is
a process of taking a judicial notice of
certain facts which constitute an offence,
there has to be application of mind whether
the materials brought before the court
would constitute the offence and whether
there are sufficient grounds for proceeding
against the accused. It is not a mechanical
process. the object of an enquiry under
Section 202 Cr.P.C. is for the Magistrate to
scrutinize the material produced by the
9 All. Manjeet Tanwar @ Manjeet Tanker Vs. State of U.P. & Ors.
261
complainant to satisfy himself that the
complaint is not frivolous and that there is
evidence/material which forms sufficient
ground for the Magistrate to proceed to
issue process under Section 204 Cr.P.C. It
is the duty of the Magistrate to elicit every
fact that would establish the bona fides of
the complaint and the complainant. Since
number of accused are residents beyond the
local limits of the trial court, as per
amended provision of Section 202 Cr.P.C.,
it is obligatory upon the Magistrate that
before summoning the accused, he shall
enquire into the case or direct the
investigation to be made by a police officer
or by such other person as he thinks fit for
finding out whether or not there are
sufficient grounds for proceeding against
the accused. In the present case, the learned
Magistrate has opted to hold such enquiry
himself.

7. Heard Sri Manish Tiwari, learned
senior counsel assisted by Sunil Kumar,
learned counsel for the applicant, learned
A.G.A. for the State, Sri V.P.Srivastava,
learned Senior Counsel assisted by Sri
Padmakar Pandey, learned counsel for
respondent no.2 and Sri Gaurav Kakkar,
Advocate and perused the record.

8. After hearing the learned counsel for
the parties and after perusing the material on
record, it is evident that the question before
this Court as to whether the order dated
16.11.2019 has been passed in correct
perspective or not? This Court is of the
opinion that the learned Magistrate in
exercise powers conferred under Section 202
Cr.P.C. the Magistrate may inquire into the
case himself or direct an investigation to be
made by the police officer or by such person
as he thinks fit for the purpose of deciding
whether or not there is sufficient ground for
proceeding. In the instant case, specific
allegation against the petitioner is that he in
order to grab the company without any
resolution of Board of Directors as well as
without any permission of Registrar of
Companies submitted a renewal form before
the Assistant Director Factory (Karkhana),
Uttar Pradesh, Kanpur Division, Kanpur
alleging himself to be a proprietor and when
the authority asked for the resolution passed
by Board of Directors, the petitioner
submitted a forged and fabricated document
along with N.O.C. alleged to have been
issued by the respondent no.2/complainant,
thus to arrive at a just decision of the case it
was incumbent upon the learned Magistrate
to summon those documents from the
concerned authority and therefore, there is no
illegality in the impugned order dated
16.11.2019, which has been rightly upheld by
the learned Sessions Court vide its Judgement
and order dated 29.09,2021.

9. In view of above, the instant petition
lacks merit and is accordingly, dismissed

10. This Court appreciate the assistance
rendered by Sri Gaurav Kakkar, Advocate in
the instant case.
----------
(2022) 9 ILRA 261
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Revision No. 817 of 2022

Manjeet Tanwar @ Manjeet Tanker
 ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Irfan Raza Khan, Sr. Adv.