# Lala Ram and others v. State of U.P. and another

- **Citation:** (2012) 1 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-01
- **Case number:** Criminal Misc. Application No. 33210 of 2011
- **Bench:** Surendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lala-ram-and-others-v-state-of-u-p-and-another-42266
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section-210trail of two different cases with different
accused persons-against same incidentone
by
taking
cognizance
on
investigation
under
Section
173-the
other
one
by
issuing
process
on
compliant case-can not be consolidated
but can be decided simultaneously on
basis of evidence adduced separatelyheld-impugned
summoning
orderjustified-needs no interference.

Held: Para 13

In the facts and circumstances of this
particular case and the view expressed
by the Hon'ble Apex Court in the cases
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
mentioned hereinabove, I am of the view
that since complaint presents a different
picture altogether and the prosecution
case has set out in the complaint is at
complete variance with that in the police
challan, proper course to adopt is to
direct that two cases should be tried
together by the appropriate court but
not consolidated i.e. the evidence should
be recorded separately in both the cases
one after the other except to the incident
that the witnesses for the prosecution
who are common to both the cases be
examined in one case and their evidence
be read as evidence in the other.
Case law discussed:
2011 (2) CCSC 817 SC; 1985 SCC (crl.) 93;
1981 SCC (Crl.) 438

## Text

1 All] Lala Ram and others V. State of U.P. and another
87
dealership on compassionate ground has
been rejected is that after cancellation of
the fair price shop of husband of the
petitioner on 2.7.1998 he had not filed
any writ petition and as such even though
the fair price shop of the husband of the
petitioner was restored, he would not be
entitled to the benefit of continuance of
such dealership and consequently the
benefit of the Government Order dated
17.8.2002 could not be available to the
petitioner.

4. The respondents do not deny that
the petitioner is a dependent of the
deceased fair price shop dealer. Merely
because after the suspension of the fair
price shop of husband of the petitioner her
husband had not filed the writ petition, the
petitioner cannot be denied the benefit of
the Government Order dated 17.8.2002
specially when the respondent authorities
had themselves restored the dealership of
the husband of the petitioner. The
contention of the petitioner has force that
her husband had no occasion to approach
the High Court when his dealership had
already been restored. It is admitted that
the authorities themselves had withdrawn
the order of suspension and restored the
shop of husband of the petitioner,
meaning thereby that the dealership of the
husband of the petitioner continued till his
death on 1.10.2010. The petitioner had
thereafter on 14.10.2010 applied for the
fair price dealership on compassionate
ground in terms of the Government Order
dated 17.8.2002 which should have been
considered on merits instead of having
been rejected on technical grounds.

5. In view of the aforesaid, we allow
this writ petition and quash the orders
dated 28.4.2010 and 19.5.2010 passed by
the
District
Supply
Officer.
The
respondents are directed to consider the
application
of
the
petitioner
dated
14.10.2011 in terms of the Government
Order dated 17.8.2002 and in the light of
the observations made herein above, as
expeditiously
as
possible,
preferably
within two months from the date of filing
of a certified copy of this order before
respondent no.3.

6. No order as to cost.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2012

BEFORE
THE HON'BLE SURENDRA SINGH,J.

Criminal Misc. Application No. 33210 of 2011

Lala Ram and others

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Vikram D. Chauhan
Sri Anil Kumar Tiwari

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section-210trail of two different cases with different
accused persons-against same incidentone
by
taking
cognizance
on
investigation
under
Section
173-the
other
one
by
issuing
process
on
compliant case-can not be consolidated
but can be decided simultaneously on
basis of evidence adduced separatelyheld-impugned
summoning
orderjustified-needs no interference.

Held: Para 13

In the facts and circumstances of this
particular case and the view expressed
by the Hon'ble Apex Court in the cases
88 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
mentioned hereinabove, I am of the view
that since complaint presents a different
picture altogether and the prosecution
case has set out in the complaint is at
complete variance with that in the police
challan, proper course to adopt is to
direct that two cases should be tried
together by the appropriate court but
not consolidated i.e. the evidence should
be recorded separately in both the cases
one after the other except to the incident
that the witnesses for the prosecution
who are common to both the cases be
examined in one case and their evidence
be read as evidence in the other.
Case law discussed:
2011 (2) CCSC 817 SC; 1985 SCC (crl.) 93;
1981 SCC (Crl.) 438

(Delivered by Hon'ble Surendra Singh,J. )

1 The applicants by way of filing
this application under section 482 Cr.P.C.
have sought to quash the impugned order
dated 06.07.2011 passed in case no.
1167/2010, Brij Lal vs. Lala Ram and
others, under sections 302, 201 and 120B
IPC passed by Chief Judicial Magistrate,
Shahjahanpur.

2. Shorn of unnecessary details, the
fact leading to the filing of this
application, in brief, are:

3. On 18.02.2010 the opposite party
no.2 Brij Lal lodged the first information
report at police station Mirzapur, District
Shahjahanpur under section 304A IPC in
regard to the offence alleged to have
committed by applicant no.1 Lala Ram on
17.02.2010 at 12.00 in the mid night when
wedding ceremony was alleged to be
going on the applicant no.1 is said to have
taken out his revolver and fired which
incidently hit the son of opposite party
no.2 Megh Pal as a result of which son of
opposite party no.2 died.

4. The opposite party no.2 on
11.03.2010 moved an application under
section 156(3) Cr.P.C. for the issuance of
direction to the police concerned to
register the offence under sections 302,
201, 120B IPC before the Chief Judicial
Magistrate, Shahjahanpur but the same
was dismissed for want of prosecution by
order dated 11.08.2010. In the meantime
the prosecuting agency submitted the
charge sheet dated 17.03.2010 under
section 304 IPC and section 27 of Arms
Act against accused Lala Ram applicant
no.1 in respect of first information report
lodged against him at crime no. 62/2010.
The cognizance was also taken by the
learned Magistrate vide order dated
24.04.2010. The opposite party no.2 Brij
Pal thereafter instituted a complaint dated
07.04.2010 before the Chief Judicial
Magistrate, Shahjahanpur in respect of the
same incident dated 17.02.2010 against
four persons on materially different,
contradictory and mutually exclusive
version what was alleged in the FIR.

5. The statement of the complainant
Brij Pal, opposite party no.2 as well as
Dhermendra and one Satendra were
recorded under sections 200, 202 Cr.P.C.
respectively by the court below in the
above mentioned complaint case. In the
meantime, the applicant no.1 Lala Ram
was released on bail by this Hon'ble Court
by order dated 26.05.2010 under section
304 IPC. The Chief Judicial Magistrate
having
considered
the
allegation
contained in the complaint as well as
statements of the witnesses recorded
under sections 200 and 202 Cr.P.C. took
cognizance and issued process against the
applicants under section 302, 201, 120B
IPC. The order dated 06.07.2011 taking of
cognizance and summoning the applicants
is the subject matter of challenge before
1 All] Lala Ram and others V. State of U.P. and another
89
this Court in the present application under
section 482 Cr.P.C.

6. It is submitted by the learned
counsel for the applicants that learned
Magistrate while passing the impugned
order dated 06.07.2011 has completely
failed to apply his judicial mind to the
materials before him and issued process in
an arbitrary and routine manner. It was
further submitted that under the law the
duty imposed on the magistrate concerned
to record his opinion on the basis of the
facts and material on record showing the
sufficiency of grounds for proceeding
against the applicants.

7. It is submitted that section 210(2)
Cr.P.C. makes it clear that if the
magistrate takes cognizance of an offence
on a report filed by the investigating
officer under section 173 Cr.P.C. against
any person, who is also an accused in a
complaint case, the magistrate shall
inquire into or try the two cases together,
as if both the case had been instituted on a
police report. It was further alleged that
sub-section 3 of section 210 Cr.P.C. was
not attracted to the facts of this case since
it deals with a procedure where, if the
police report did not relate to any accused
in the complaint case or the magistrate did
not take cognizance of any offence on the
police report he would proceed with the
inquiry or trial, which might have been
stayed by him under sub-section (1) in
accordance with the provisions of the
code. According to the counsel for the
applicants both the cases have to be
clubbed
and
consolidated
and
the
evidence recorded in one be read as
evidence in other case.

8. Per contra, learned AGA has
opposed this application and submitted
that the fact situation does not attract the
provisions contemplated in section 210
Cr.P.C. Since the accused are different in
the two separate proceedings and the
situation has, in fact, arisen where
prejudice in all possibility is likely to be
caused in a single trial. Hence this is a
case where two trials should be held
simultaneously but not as single trial. The
facts of the case also warrant that the
trials should be conducted by the same
presiding officer in order to avoid a
conflict of decisions.

9. Taking note of the submissions
made by counsel for the parties and
having perused the material placed on
record, I am of the view that since the
version in the police challan case and the
complaint case were in conflict and the
number of accused and prosecution
witnesses were also different the trial of
the two cases should not be held together.
Both the cases cannot be clubbed and
consolidated,
particularly
when
the
prosecution version in the police challan
case and the complaint case are materially
different and the accused persons are also
not the same.

10. Section 210 Cr.P.C. provides
that procedure to be followed when there
is
a
complaint
case
and
police
investigation in respect of the same
offence. Sub-section (1) of section 210
Cr.P.C. provides that when in a case
instituted otherwise than on a police
report namely a complaint case the
magistrate is informed during the course
of inquiry or trial that a investigation by
the police is in progress in relation to the
offence which is the subject matter of
inquiry or trial held by him the magistrate
is required to stay the proceeding of such
inquiry or trial and to call for report on
90 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the matter from the police officer
conducting the investigation. Sub-section
(2) provides that if a report is made by the
investigating officer under section 173
Cr.P.C. and on such report cognizance of
any offence is taken by the magistrate
against any person, who is an accused in a
complaint case the magistrate shall
inquire into or try the two cases together
as if both the cases had been instituted on
a police report. Sub-section (3) further
provides that if police report does not
relate to any accused in the complaint
case or if the magistrate does not take
cognizance of any offence on a police
report he shall proceed with the inquiry or
trial which was stayed by him in
accordance with the provisions of the
code. Thus in view of section 210 Cr.P.C.
both the cases arising out of the police
report and private complaint can be tried
together provide the fact and cases are not
materially different, by a magistrate when
the cognizance of an offence in respect of
an accused in a complaint case as well as
in the police investigation such a person is
already made an accused then only the
magistrate may inquire into or try together
the complaint case and the case arising
out of the police report as both the cases
were instituted on a police report, but in
the present case the situation is different
as the prosecution version in the police
challan case and the complaint case were
materially different and the number of
accused and prosecution witnesses were
also different the trial of the two cases
cannot be consolidated and held together.
Therefore the version in the complaint
case and the police report are totally since
materially different though arising out of
the same incident cannot be consolidated
or clubbed together and the provisions of
sub-section (2) of section 210 Cr.P.C.
would not come into play.

11. In my view, this is a case where
the
two
trials
should
be
held
simultaneously but not as a single trial by
the appropriate court. This view has been
highlighted in the recent pronouncement
of the Hon'ble Apex Court in the case of
Pal @ Palla vs. State of U.P., 2011 (2)
CCSC 817 SC and in the case of
Harjinder Singh vs. State of Punjab and
others, 1985 SCC (crl.) 93, it was
observed by the Hon'ble Apex Court in
the case mentioned hereinabove that
clubbing and consolidating the cases one
on a police challan and the other on a
complaint if the prosecution version in the
two
cases
are
materially
different,
contradictory and mutually exclusive,
then both the cases should not be
consolidated but should be tried together
with the evidence in the two cases being
recorded separately so that both the cases
could be disposed of simultaneously. It
was further observed that in such an
unusual situation and facts of the case the
trial court is required to hear the two cases
together though separately and take
evidence separately except in respect of
all the witnesses who would not affect
either by the provision of Article 20(2) of
the Constitution or section 300 Cr.P.C.

12. The Hon'ble Apex Court in the
case of Kewal Krishan, 1981 SCC(Crl.)
438 had dealt with a similar situation as
the present, where two cases exclusively
triable by the court of sessions one
instituted on a police report under section
173 Cr.P.C. and the other on a criminal
complaint
arose
out
of
the
same
transaction. The Hon'ble Apex Court
observed that to obviate the risk of two
courts coming to conflicting findings it
was desirable that the two cases should be
tried separately but by the same court.
1 All] Smt. Geeta Varshney V. Allabahad Bank Thru' M.D. H.O. Calcutta and others
91

13. In the facts and circumstances of
this
particular
case
and
the
view
expressed by the Hon'ble Apex Court in
the cases mentioned hereinabove, I am of
the view that since complaint presents a
different picture altogether and the
prosecution case has set out in the
complaint is at complete variance with
that in the police challan, proper course to
adopt is to direct that two cases should be
tried together by the appropriate court but
not consolidated i.e. the evidence should
be recorded separately in both the cases
one after the other except to the incident
that the witnesses for the prosecution who
are common to both the cases be
examined in one case and their evidence
be read as evidence in the other.

14. In view of the matter, the
impugned order dated 06.07.2011 passed
by the learned Magistrate issuing process
and summoning the applicants under
sections 302, 201, 120B IPC is well in
conformity in law and does not suffer
from any material illegality or irregularity
and therefore does not warrant any
interference in this application.

15. This application is finally
disposed
of
with
the
observation
mentioned hereinabove.

16. Let a copy of this order be send
to
the
Chief
Judicial
Magistrate,
Shahjahanpur for its communication and
necessary compliance.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2012

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE DINESH GUPTA,J.

Civil Misc. Writ Petition No. 33410 of 2002

Smt. Geeta Varshney

 ...Petitioner
Versus
Allabahad Bank Thru' M.D. H.O. Calcutta
and others

 ...Respondents

Counsel for he Petitioner:
Sri G.S. Srivastava
Sri Sharad Kumar
Sri V.P. Varshney

Counsel for the Respondents:
Sri Himanshu Tiwari
C.S.C.

Allahabad Bank Employees (Pension)
Regulation
1993-Regulation-3-Family
Pension
Scheme
introduced
w.e.f.06.09.1994-husband of petitioner
died on 09.07.1991in accident-after 20
years
continuous
services-petitioner
applied for pension on 27.11.1997rejected on ground of delay-and not
applied in prescribed format within 120
days-admittedly such format or scheme
never supplied by Bank-held-entitled for
family pension in view of Smt. Shushila
Rai case.

Held: Para 17

In the present case also the facts are
similar to the above case and even on a
better footing. If the argument of the
Bank is also accepted that no application
was moved by the petitioner as alleged
in the writ petition on 16.11.1995 or in
December,
1995,
moving
of
an
application
along
with
form
on
27.11.1997 is not denied. In the case of
Smt. Sushila Rai (supra) the application
was moved on 16.06.1998 after lapse of