# Laxmi Devi and others v. Mohammad

- **Citation:** (2011) 1 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-03
- **Bench:** Virendra Kumar Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laxmi-devi-and-others-v-mohammad-41869
- **Pages:** 5

## Headnote

280 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Code of Criminal Procedure-Section 482Summoning order in complain case on
basis of affidavits of witnesses without
following
procedure
under
section
202(2)
Cr.P.C.-held-great
procedural
illegality
committed-order
not
sustainable.

Held: Para 11

If the mandatory provision of Section
202
of
Cr.P.C.
requires
that
the
Magistrate shall examine the witnesses
on Oath, the filing of affidavit by the
eye witnesses can not be a substitute.
Therefore, the Magistrate is under
obligation and duty bound to examine
upon oath the complainant and his
witnesses before issuance of process
under Section 204 Cr.P.C. and non
compliance of which would vitiate
further proceedings. Under Section 200
Cr.P.C. the Magistrate has no option
except to examine the complainant and
the witnesses, if any, on oath. Thus in
an inquiry into an offence by the court
of a Magistrate under Section 202
Cr.P.C., the personal examination of
the witnesses is compulsory and legally
binding, filing of affidavit at the stage
of Section of 202, Cr.P.C. is not
permissible
under
the
law.
The
impugned
order
of
the
Magistrate
suffers
from
not
following
the
mandatory provisions of sub-Section
(2) of Section 202 of Cr.P.C.
Case law discussed:
1992 CRI.L.J. 1802.

## Text

1 All] Smt. Ganga Chauhan V. State of U.P. and another
279

"15. In the instant case, keeping in
view the peculiar facts and circumstances
of the case, the Tribunal has awarded a
lump-sum compensation of Rs. 50,000/-
without applying the multiplier and
without taking into consideration the
other factors, like age etc. The deceased
Sri Nanhe Singh was aged about 40 years.
Since no proof of income was submitted,
the notional income will have to be taken
as per the ratio laid down in the case of
Laxmi Devi and others v. Mohammad
Tabbar and another; 2008(2) TAC 394
(SC) where it was observed that the
minimum income even notionally should
not be less than Rs. 3000/- per month.
Accordingly, in case the income of the
deceased is assessed at the rate of Rs.
3000/- per month and 1/3rd is deducted in
lieu of personal expenses, the net income
shall be Rs. 2000/- per month i.e. Rs.
24,000/- per year. Since the deceased was
aged about 40 years, multiplier of 15 will
apply under Schedule II of Motor Vehicles
Act. Thus, the compensation will come to
Rs. 3,60,000/-. In addition, the claimants
are also entitled for Rs. 2000/- as funeral
expenses; Rs. 2500/- for loss of Estate and
Rs. 5000/- as loss of consortium. Thus,
total
compensation
comes
to
Rs.
3,69,500/- (Three lacs sixty nine thousand
and five hundred)."

10. In view of above, we are of the
view that even notional income should not
be less than Rs. 3000/- per month.
Accordingly, in case the income of
deceased is assessed at the rate of Rs.
3,000/- per month and 1/3rd is deducted
in lieu of personal expenses, the net
income shall be Rs. 2000/- per month, i.e.,
Rs. 24,000/- per year. Since the deceased
was aged about 21 years, the multiplier of
17 should be applied while assessing the
income. The total compensation should be
come to Rs. 4,08,000/-, loss of estate Rs.
5,000/- and funeral expenses Rs. 2,500/-.
The total compensation now is 4,15,500/-.
Interest awarded by the Tribunal is also
too less to approve and enhanced to 8%.

11. In view of above, we are of the
view that appellants shall be entitled for
compensation to the tune of Rs. 4,15,5000/-.
The impugned judgment and award dated
03.09.2003 passed by Tribunal stands
modified accordingly. The appeal is
accordingly allowed with the finding that
appellants
shall
be
entitled
for
compensation to the tune of Rs. 4,15,500/-
(four lacs, fifteen thousand, fine hundred
only), as calculated above, with simple
interest at the rate of 8% per annum. The
aforesaid amount shall be deposited in the
Tribunal within two months from today and
Tribunal shall proceed in terms of modified
word (supra) expeditiously. The amount
already paid to appellants shall be adjusted
from the compensation enhanced by this
Court. Appeal allowed accordingly. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2011

BEFORE
THE HON'BLE VIRENDRA KUMAR DIXIT, J.

U/S 482/378/407 No. - 919 of 2011

Smt. Ganga Chauhan @ Guga Chauhan
and another

 ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner:
Rajiva Dubey
Mahendra Pratap Singh

Counsel for the Respondent:
Govt. Advocate
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Code of Criminal Procedure-Section 482Summoning order in complain case on
basis of affidavits of witnesses without
following
procedure
under
section
202(2)
Cr.P.C.-held-great
procedural
illegality
committed-order
not
sustainable.

Held: Para 11

If the mandatory provision of Section
202
of
Cr.P.C.
requires
that
the
Magistrate shall examine the witnesses
on Oath, the filing of affidavit by the
eye witnesses can not be a substitute.
Therefore, the Magistrate is under
obligation and duty bound to examine
upon oath the complainant and his
witnesses before issuance of process
under Section 204 Cr.P.C. and non
compliance of which would vitiate
further proceedings. Under Section 200
Cr.P.C. the Magistrate has no option
except to examine the complainant and
the witnesses, if any, on oath. Thus in
an inquiry into an offence by the court
of a Magistrate under Section 202
Cr.P.C., the personal examination of
the witnesses is compulsory and legally
binding, filing of affidavit at the stage
of Section of 202, Cr.P.C. is not
permissible
under
the
law.
The
impugned
order
of
the
Magistrate
suffers
from
not
following
the
mandatory provisions of sub-Section
(2) of Section 202 of Cr.P.C.
Case law discussed:
1992 CRI.L.J. 1802.

(Delivered by Hon'ble Virendra Kumar Dixit, J.)

1. Heard learned counsel for the
petitioners, learned A.G.A. for the State
and perused the relevant papers on record.

2. Since the issue involved is based
on legal premise which can be decided at
this juncture hence the notice to the
opposite party no.2 is dispensed with.

3. This application under Section
482 Cr.P.C. has been filed for quashing
the impugned summoning order dated
02.02.2011
passed
by
the
learned
A.C.J.M., Court No. 30, Lucknow in
Complaint Case No. 144 of 2010, under
Sections 379,452,504 and 506 I.P.C.,
Police
Station
Hasanganj,
District
Lucknow.

4.

Learned
counsel
for
the
petitioners
submits
that
learned
Magistrate did not record the statements
of the witnesses under Section 202
Cr.P.C. and in lieu thereof he accepted the
affidavits of witnesses Sunil Kumar and
Onkar Nath Shukla under Section 202(2)
Cr.P.C. which is not permissible under
law. It is further submitted that it is no
where provided under the Code of
Criminal
Procedure
1973
that
the
witnesses may file their affidavits in place
of their statements under Section 202(2)
Cr.P.C. It is further submitted that the
Magistrate has committed gross illegality
and procedural mistake and the impugned
summoning order is liable to be quashed.

5. Learned A.G.A. has not raised
any objection against the legal position
submitted by learned counsel for the
petitioner.

6. In order to appreciate the
arguments of the learned counsel for the
parties, the provisions of Section 202
Criminal
Procedure
Code
1973(hereinafter referred as Cr.P.C.) is
reproduced as under:

202 (1) Any Magistrate, on receipt
of a complaint of an offence of which he
is authorized to take cognizance or
which has been made over to him under
Section 192, may, if he thinks fit [and
1 All] Smt. Ganga Chauhan V. State of U.P. and another
281
shall, in a case where the accused is
residing at a place beyond the area in
which he exercises his jurisdiction]
postpone the issue of process against
the accused, and either inquire into the
case himself or direct an investigation
to be made by a police officer or by
such other person as he thinks fit, for
the purpose of deciding whether or not
there
is
sufficient
ground
for
proceeding:

Provided that no such direction for
investigation shall be made,-

(a)
where
it
appears
to
the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session; or

(b) where the complaint has not been
made by a Court, unless the complaint
and the witnesses present (if any) have
been examined on oath under Section
200.

(2) In an inquiry under sub-Section
(1), the Magistrate may, if he thinks fit,
take evidence of witnesses on oath:

Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session,
he
shall
call
upon
the
complainant to produce all his witnesses
and examine them on oath.

(3)If an investigation under subsection (1) is made by a person not being
police officer, he shall have for that
investigation all the powers conferred by
this Code on an officer in charge of a
police station except the power to arrest
without warrant.

7. As stated in sub Section (1) of
Section 202 Cr.P.C., itself, the object of
the enquiry is to ascertain the truth or
falsehood of the complainant, but the
magistrate making the enquiry has to do
this only with reference to the inherent
quality of statements on oath made by the
complainant and the statements made
before him by witnesses examined at the
instance of the complainant. To say in
other words, during the course of the
enquiry under the section, the Magistrate
has to satisfy himself simply on the
evidence adduced by the complainant
whether prima facie case has been made
out so as to put the proposed accused on a
regular trial.

8. The language used in sub-Section
(2) of Section 202 Cr.P.C. carries a
mandate for the Magistrate which has to
be obeyed by him before the issues
process.

9. A perusal of the Section 202 sub
Section (2) Cr.P.C. makes it clear that the
Magistrate has to take evidence of
witnesses on oath. In sub Section (2) in an
enquiry under sub Section (1), the words
'the Magistrate may, if he thinks fit, take
evidence
of
witnesses
on
oath'
contemplates that the Magistrate shall
take the evidence of the witnesses on oath
before the court. The basic purpose of the
criminal law is that the person who is to
be prosecuted should be summoned only
if the Magistrate in an enquiry, finds
substance in the allegation of the
complainant which is duly supported by
the witnesses who have given the
statement on oath before the Magistrate.
The provision of Section 202 Cr.P.C. is to
enable the Magistrate to form a opinion
whether the process should be issued or
not. The issue of process is a matter for
282 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
judicial determination. As required under
Section 200 Cr.P.C. which makes it
obligatory
for
a
Magistrate
taking
cognizance of an offence on complaint
shall examine upon oath the complainant
and the witnesses present, if any, and the
substance of such examination shall be
reduced in writing and shall be signed by
the complainant and the witnesses, and
also by the Magistrate. The enquiry under
Section 202 Cr.P.C. is one sided as the
proposed accused is not in the picture.
The complainant has given his statement
on oath and the witnesses have also given
their statement on oath the enquiry can be
said to be based on a reasonable and
justified conclusion of the Magistrate
when he passes an order either under
Section 203 Cr.P.C. dismissing the
complaint or under Section 204 Cr.P.C.
issuing process against the accused after
going through the statements of the
complainant as well as of the witnesses.
Thus it is incumbent upon the learned
Magistrate taking cognizance of an
offence to examine the complainant and
witnesses present on oath except in the
case of where the complaint is made by a
public servant in discharge of his official
duties.

10. In the case of Hari Singh and
another vs. State of U.P. and others
reported in 1992 CRI.L.J. 1802 it was
held by this Court that in an enquiry into
an offences by the Court of a magistrate
under Section 202 Cr.P.C. the personal
examination of witnesses is imperative.
The words 'take evidence of witnesses on
oath' in Section 202(2) will have to be
read along with Section 274 or 275,
Cr.P.C. as the case may be. Memorandum
containing sustance of evidence or taking
down of evidence of witnesses would be
possible only when they are personally
examined by the Court. Therefore, filing
of affidavit at the stage of Section 202,
Cr.P.C. is not permissible under the law.

11. If the mandatory provision of
Section 202 of Cr.P.C. requires that the
Magistrate shall examine the witnesses on
Oath, the filing of affidavit by the eye
witnesses can not be a substitute.
Therefore,
the
Magistrate
is
under
obligation and duty bound to examine
upon oath the complainant and his
witnesses before issuance of process
under Section 204 Cr.P.C. and non
compliance of which would vitiate further
proceedings. Under Section 200 Cr.P.C.
the Magistrate has no option except to
examine
the
complainant
and
the
witnesses, if any, on oath. Thus in an
inquiry into an offence by the court of a
Magistrate under Section 202 Cr.P.C., the
personal examination of the witnesses is
compulsory and legally binding, filing of
affidavit at the stage of Section of 202,
Cr.P.C. is not permissible under the law.
The impugned order of the Magistrate
suffers from not following the mandatory
provisions of sub-Section (2) of Section
202 of Cr.P.C.

12. As discussed in view of the
specific provision under sub Section 202
(2) of Cr.P.C. the Magistrate has
committed
illegality
and
procedural
mistake and the impugned summoning
order is not in consonance with the
provisions of law and is liable to be
quashed.

13. Accordingly, the application
under Section 482 Cr.P.C. is allowed. The
impugned order dated 02.02.2011 passed
by the learned Magistrate in complaint
Case No. 144 of 2010, under Sections
379,452,504,506 I.P.C., Police Station
1 All] Smt. Sadhana Singh V. State of U.P. and others
283
Hasanganj District Lucknow is hereby
quashed and the matter is remanded back
to
the
concerned
learned
Judicial
Magistrate to proceed with the case in
accordance with the provisions of law.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K.N. PANDEY, J.

Special Appeal No. 1323 D of 2009

Smt. Sadhana Singh ...Appellant-Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Abhishek Srivastava

Counsel for the Respondents:
Sri R.A. Akhtar
Sri S.G. Hasnain
Sri Ram Krishna

Constitution of India, Art. 14 and Art.
226-Special
B.T.C.
Training
Coursepetitioner obtained decree from State of
Jammu Kashmir-denied admission-helddiscriminatly-can not be denied-view
taken by Single Judge Contrary to full
Bench
decision-not
sustainableCandidature
can
not
be
cancelled
provided on merit she stand in merit list.

Held: Para 13 & 14

Special BTC training course is designed
to equip those candidates, who have
B.Ed. degrees to take teachers training
for primary classes for the purposes of
employment.
It
is
an
employment
oriented course. It is not denied that all
the successful candidates, who have
passed BTC examination are employed in
Primary Schools funded by the Central
Government
under
Serv
Shiksha
Abhiyan. The exclusion of some of the
candidates, who have taken degrees
from the universities situate in the State
to which NCTE Act does not apply would
be a hostile and invidious discrimination
to them. Such students cannot be put at
fault on account of special status given
to the State of Jammu and Kashmir.

The reasoning given by the Full Bench in
Bhupendra Nath Triapthi is squarely
applicable to the case. If the students
having obtained B.Ed. degrees in the
period, when NCTE Act was not enforced
or where institutions have applied but
the recognition was not given can be
considered for selection in Special BTC
course,
the
exclusion
of
those
candidates, who have obtained degrees
from the States to which NCTE Act does
not apply, would be discriminatory and
violative of right to equality under Art.14
and 16 of the Constitution of India.
Case law discussed:
Special Appeal No.858 of 2008, Bhupendra
Nath Tripathi & others Vs. State of U.P. & Ors,
Kamlesh Kumar & Others Vs. State of U.P. &
Ors., Writ-A No.25186 of 2008, 2005 (2)
Western Law Cases (Raj.) 358.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Abhishek
Srivastava,
learned
counsel
for the
petitioner-appellant. Shri R.A. Akhtar
appears for the National Council for
Teachers' Education (NCTE)-respondent
No.3. Shri S.G. Hasnain, AAG has
appeared for the State of U.P.

2.. Cause shown for condonation of
delay is sufficient. The delay condonation
application is allowed.

3. The petitioner has obtained
degree of B.Ed. from the Jammu and
Kashmir University. They applied in the
selections for Special BTC Training