# M/s Bhopal Sugar Industries Ltd. and others v. State of U.P. and others

- **Citation:** (2002) 1 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-31
- **Case number:** Criminal Misc. Writ Petition No. 5351 of 2000
- **Bench:** J.C. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-bhopal-sugar-industries-ltd-and-others-v-state-of-u-p-and-others-39801
- **Pages:** 4

## Headnote

Cr.P.C. - Section 482-Objection filed by
the accused against Summoning Order
for recalling the same- not maintainablewhen the remedy is already provided to
an accused under Section 245 (2)
Cr.P.C., a parallel remedy can not be
allowed to be availed by him by filing
objections.
Held - Para 8

This Court finds that the objections filed
by the petitioners before the Magistrate
concerned for recalling the summoning
order were not maintainable for two
reasons. Firstly, that this court while
deciding application under section 482
Cr.P.C.
had
already
held
that
the
summoning order was passed by the
Magistrate concerned after application of
judicial mind and had rejected the
contention of the accused persons that
complaint was not maintainable, and
Secondly,
no
such
objections
were
permissible under law in view of Full
Bench decision of Ranjeet Singh (supra).
Case law relied:
2000 Cr.L.J. 2738

## Text

1All] M/s Bhopal Sugar Industries Ltd. and others V. State of U.P. and others
227
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.1.2002

BEFORE
THE HON'BLE J.C. GUPTA, J.

Criminal Misc. Writ Petition No. 5351 of
2000

M/s. Bhopal Sugar Industries Ltd. and
others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri R.S. Shukla
Sri P.K. Sinha
Sri Narul Huda

Counsel for the Respondents:
A.G.A.
Sri D.S. Tewari
Sri H.N. Mehrotra
Sri Shankar Suan

Cr.P.C. - Section 482-Objection filed by
the accused against Summoning Order
for recalling the same- not maintainablewhen the remedy is already provided to
an accused under Section 245 (2)
Cr.P.C., a parallel remedy can not be
allowed to be availed by him by filing
objections.
Held - Para 8

This Court finds that the objections filed
by the petitioners before the Magistrate
concerned for recalling the summoning
order were not maintainable for two
reasons. Firstly, that this court while
deciding application under section 482
Cr.P.C.
had
already
held
that
the
summoning order was passed by the
Magistrate concerned after application of
judicial mind and had rejected the
contention of the accused persons that
complaint was not maintainable, and
Secondly,
no
such
objections
were
permissible under law in view of Full
Bench decision of Ranjeet Singh (supra).
Case law relied:
2000 Cr.L.J. 2738
(Delivered by Hon'ble J.C. Gupta, J.)

1. By means of this writ petition,
petitioners have prayed for quashing the
orders dated 12.5.2000 and 24.8.2000
passed by Judicial Magistrate, Ghaziabad
and Additional Session Judge, Ghaziabad
respectively. A further prayer has been
made for issuing a writ of certiorari
quashing the complaint of case no. 3386
of 1997, Dabur India Ltd. Vs. M/s B.S.I.
Ltd.
And
others
and
the
entire
proceedings initiated on the basis of the
said complaint, which are pending before
I Additional Chief Judicial Magistrate,
Ghaziabad.

2. The court has heard Sri P.K.
Sinha for the petitioners, learned A.G.A.
for the State and S/Sri D.S. Tiwari, H.N.
Mehrotra
and
Shankar
Suan
for
respondents no. 2 and 3.

3. The relevant facts are that
respondents nos. 2 and 3 have filed a
criminal complaint against the petitioners
for proceeding against them under Section
420 I.P.C. and Sections 138/141 of the
Negotiable of Instruments Act. After
recording statement of the complainant
under Section 200 Cr.P.C. and holding
inquiry under Section 202 Cr.P.C., the
concerned Magistrate on 29.11.97 passed
an
order
summoning
petitioners
as
accused persons in respect of the
aforesaid penal offences. The petitioners
challenging the said order and the
maintainability of complaint, filed an
application under Section 482 of the Code
of Criminal Procedure invoking inherent
powers of this court for quashing the
summoning order and for dropping the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
228
proceeding against them which were
pending
in
the
court
below.
This
application was dismissed by a learned
Single Judge of this court, Hon'ble R.K.
Singh, J. by the order dated 24.2.1999.
Against this order the petitioners filed
S.L.P. No. 1063/99 but the same was
dismissed as withdrawn on 13.8.99. It
further
appears
that
thereafter
the
petitioners through their counsel filed
objection before the Magistrate for
recalling the summoning order dated
29.11.97. This objection was dismissed by
the learned Magistrate by the impugned
order dated 12.5.2000. Against this order
the petitioners filed revision before the
Session Judge which too has been
dismissed by the impugned order dated
24.8.2000. Against these two orders the
present writ petition has been filed.

4. At the outset learned counsel for
the contesting respondents raised an
objection regarding maintainability of this
writ petition. It is submitted by them that
when on an earlier occasion this court has
rejected the petitioners application made
under Section 482 Cr.P.C. against the
summoning order and the S.L.P. filed
against the said order has been also
dismissed by the Apex Court, no
objection for recalling the summoning
order
was
maintainable
before
the
Magistrate concerned. It is further urged
that in any view of the matter there is no
provision in the Code of Criminal
Procedure for recalling summoning order
and therefore, in this view of the matter
also objection filed by the petitioners
before the Magistrate concerned, was not
legally maintainable, consequently this
writ petition deserves to be dismissed.

5. Copy of the order whereby
petitioners claim made under Section 482
Cr.P.C. was rejected by this court, has
been annexed as Annexure-13 to the writ
petition. A perusal of this order leaves no
room for doubt that the application was
decided on merit. After noting the various
submissions made by parties counsel, this
court carefully perused the summoning
order dated 29.11.97, the complaint
petition and other annexures which were
placed from the side of the petitioners.
The
Hon'ble
Judge
rejected
the
submissions made on behalf of the
petitioners, and it was observed:-
"The complaint petition is statement
of fact which is to be examined by the
court where the case will be heard
according to the procedure of law under
the Code of Criminal Procedure. The
parties will have ample opportunity to
adduce evidence in support of the
complaint or in defence of the accused.
The cases relied upon by Mr. Chaudhary
noted above have been carefully studied.
Those cases are clearly distinguishable
from the facts of the present case. At this
stage this Court is not inclined to observe
anything which may go against any party
of this case in the trial before the court
below. The facts are there which the court
below will examine in the light of the
evidence adduced by the parties. The
impugned order discloses application of
judicial mind and the argument of Mr.
Chaudhary on this score is rejected."

The operative portion ran as under:
 "This
Criminal
Miscellaneous
Petition is accordingly dismissed. The
matter is left for decision by the court
below. The interim order dated 22nd April,
1998 passed by this Court stands
discharged."

6. Sri Sinha learned counsel for the
petitioners submitted that this court had
1All] M/s Bhopal Sugar Industries Ltd. and others V. State of U.P. and others
229
left the matter open for decision by the
court
below,
therefore,
when
the
petitioners
had
filed
objections
for
recalling the summoning order they
should have been decided on merit. On
the other hand Sri D.S. Tiwari learned
counsel for the respondents submitted that
the expression "the matter is left for
decision by the court below" cannot be
construed narrowly. What this court
meant that the matter was left for decision
in trial by the court below in accordance
with law. He submitted that in view of
Full Bench decision of this court in
Ranjeet Singh and others Vs. State of
U.P. reported in 2000 Crl. L.J. 2738, the
objection filed on behalf of the petitioners
before the Magistrate were not legally
maintainable. In this decision it was held
that the accused cannot be relegated to the
remedy under Section 204 of the Code of
Criminal Procedure to approach the
Magistrate and satisfy him that the
process in the case ought not to have been
issued. Challenging the order of issuing
process before the court issuing the said
process is in fact requiring the arms of the
clock to move anti-clockwise which does
not happen or at least should not happen.
A parallel trial cannot be allowed to
commence before the actual trial begins.

7. When an order of summoning is
passed it is always open for the accused to
appear before the Magistrate concerned in
compliance of the said order and to make
a prayer to discharge him. Under Chapter
XIX a definite procedure has been laid
down in relation to the cases instituted
otherwise than on police report. Section
244 provides that when, in any warrant
case instituted otherwise than on a police
report, the accused appears or is brought
before a Magistrate, the Magistrate shall
proceed to hear the prosecution and take
all such evidence as may be produced in
support of the prosecution. Sub-section
(1) of Section 245 then provides that if,
upon taking all the evidence referred to in
Section 244, the Magistrate considers, for
reasons to be recorded, that no case
against the accused has been made out
which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge
him. Sub-Section (2) of Section 245
however provides that it is open for a
Magistrate to discharge the accused at any
previous stage of the case if, for reasons
to be recoded by Magistrate, he considers
the charge to be groundless. Therefore,
when this remedy is already provided to
an accused under Sub-Section (2) of
Section 245 a parallel remedy cannot be
allowed to be availed of by him by filing
objections against the summoning order
and for recalling the same. This view of
mine is fully supported by the aforesaid
Full Bench decision.

8. For the reasons stated above, this
court finds that the objections filed by the
petitioners
before
the
Magistrate
concerned for recalling the summoning
order were not maintainable for two
reasons. Firstly, that this court while
deciding application under Section 482
Cr.P.C.
had
already
held
that the
summoning order was passed by the
Magistrate concerned after application of
judicial mind and had rejected the
contention of the accused persons that
complaint was not maintainable, and
Secondly
no
such
objections
were
permissible under law in view of Full
Bench decision of Ranjeet Singh (supra).

For the above reasons, this writ
petition fails and is hereby dismissed.
---------
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
230
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.1.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE S.R. SINGH, J.

Civil Misc. Writ Petition No. 16616 of 2001
Anand Kumar

 ...Petitioners
Versus
Union of India, through its Secretary and
others

 ...Respondents

Counsel for the Petitioner:
Sri Somesh Khare

Counsel for the Respondents:
Sri S.N. Srivastava
S.C.

Constitution
of
India-Compassionate
appointment-father died 30.5.94-claim
made after 8 years - Findings about
financial
conditions
recorded
most
soundful. Not entitled for appointment.

Held - Para 2

This
Tribunal
has
held
that
the
petitioner's financial condition is not bad
and hence it is not fit case for granting
compassionate
appointment.
The
Tribunal has referred to the family
pension etc. which the petitioner's family
is getting as well as the rent from
houses, as well as the plots in several
towns.
It
is
settled
law
that
compassionate
appointment
may
be
granted
only
when
the
financial
condition of the family is bad vide Umesh
Kumar Nagpal Vs. State of Haryana
(1994) 4 SCC 138, but in this case the
finding of fact is that it is not bad.
Moreover the petitioner's father died on
30.5.94 i.e., almost 8 years ago and
hence this is not a fit case for passing
any mandamus under Article 226 of the
Constitution since the purpose of giving
compassionate appointment is that there
is an immediate financial crisis in the
family, vide Haryana State Electricity
Board Vs. Naresh J.T. 1996 SC 542. The
writ petition is hence dismissed.
Case law discussed:
1994(4) SCC 138
J.T. 1996 S.C.-542

(Delivered by Hon'ble M. Katju, J.)

Heard learned counsel for the parties.

1. The petitioner's father was a
Senior
Divisional
Manager
in
the
Department of Telecommunication who
died
in
harness
on
30.5.94.
The
petitioner's mother made an application
that her son, the petitioner, should be
given an appointment under Dying in
Harness Rules vide Annexure 1. However
the application was rejected on 26.2.96
vide Annexure 4 in which it was stated
that
the
case
for
compassionate
appointment has been considered by a
High Power Committee and it has been
decided that the case of the petitioner is
not a fit one for appointment in relaxation
of the recruitment rules. Thereafter
representation dated 21.2.97 wa made
vide Annexure 5 but it was rejected on
15.1.98 vide Annexure 6. The petitioner
then
approached
the
Central
Administrative Tribunal which directed
the Chief General Manager to reconsider
the request of the applicant vide its order
Annexure 7. The petitioner subsequently
gave a representation dated 14.10.99 but it
was rejected on 20.1.2002 vide Annexure
8. The petitioner then approached the
Tribunal which dismissed his petition on
15.3.2001 vide Annexure 9. Hence this
writ petition is filed.

2. We have carefully perused the
impugned order of the Tribunal and find
no illegality in the same. The Tribunal has
held
that
the
petitioner's
financial