# M/s Parsadi Lal Tulsiram Cold Agra Road, Bisana, Hathras & Anr v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 740
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Application U/S 482. No. 16831 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-parsadi-lal-tulsiram-cold-agra-road-bisana-hathras-anr-v-state-of-u-p-anr-50014
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 311-Alleged
meter taken from premise of the Applicant no.1sent for examination-examiner (private agency)
not examined as witness-during the St.ment of
PW-4-he admitted that report was not receivedbut complainant's counsel St.d in argument that
report was produced in the court-examiner of
the meter is necessary witness-application u/s
311 Cr.P.C. moved for calling the examiner for
recording
its
evidence-rejected-duty
of
prosecution to prove such report -u/s 311
Cr.P.C.- Application be allowed at any stage
before pronouncement of judgment-impugned
order set aside.

Application allowed. (E-9)

List of Cases cited:

V.N. Patil Vs Niranjan Kumar & ors., (2021) 3
SCC 661

## Text

740 INDIAN LAW REPORTS ALLAHABAD SERIES
मर्िला िले िी बलात्कार की सुर्ििा प्रदान करती िो, िि र्ैंर्रेप
की अर्ियुक्ता निीं िो सकती जैसा र्क िारा 376(2)(1)
िा०दं०सं० से स्पष्ट िै र्क कोई मर्िला बलात्कार की अर्ियुक्त निीं
िो सकती िै। िारा 375/376 िा०दं०सं० से िी स्पष्ट िै र्क एक
मर्िला का बलात्कार माि पुरुर् द्वारा िी काररत र्कया जा सकता िै।
इस मामले में यि िी प्रश्न उठा र्क क्या र्कसी मर्िला को बलात्कार
काररत करने के र्लए उत्प्रेररत करने का दोर्ी माना जा सकता िै,
माननीय उच्चतम न्यायालय ने इस पर कोई मत व्यक्त करने के
बजाय यि अििाररत र्कया र्क यर्द र्िर्ि में यि अनुमन्य िै
तथा तथ्यों के आिार पर ऐसी कायिािी की जा सकती िो तो
र्िचारर् न्यायालय को र्िर्ि अनुसार ऐसी दशा में कायि करना
चार्िए।

१२. र्दलली उच्च न्यायालय की एकल पीठ ने िण्ड
अपील संख्या 64/2006 सरला दवरुद्ध राज्य में दिनााँक
06.02.2014 के र्नर्िय में यि अििाररत र्कया िै र्क पीऱ्िता
के बलात्कार के आरोप की सियोर्ी मर्िला को िारा 120
िा०दं०सं० के अन्तर्ित दोर्र्सद्ध र्कया जा सकता िै।

१३. प्रार्थिनी के र्िद्वान अर्ििक्ता की तरफ से उक्त के
अर्तररक्त अन्य कोई तकि प्रस्तुत निीं र्कया र्या िै। उपरोक्त र्ििेचना
के आिार पर इस न्यायालय का यि र्नष्कर्ि िै र्क िारा 482
दं०प्र०सं० के अन्तर्ित प्रस्तुत यि यार्चका र्ुर्िीन िै तथा र्नरस्त
र्कये जाने योग्य िै।

आिेश

१४. यि यार्चका प्रस्तुत अन्तर्ित िारा 482दं०प्र०सं०
उपरोक्तानुसार खर्ण्डत की जाती िै।
----------
(2023) 4 ILRA 740
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 16831 of 2022

M/s Parsadi Lal Tulsiram Cold Agra Road,
Bisana, Hathras & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Sanjay Kumar Dubey

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 311-Alleged
meter taken from premise of the Applicant no.1sent for examination-examiner (private agency)
not examined as witness-during the St.ment of
PW-4-he admitted that report was not receivedbut complainant's counsel St.d in argument that
report was produced in the court-examiner of
the meter is necessary witness-application u/s
311 Cr.P.C. moved for calling the examiner for
recording
its
evidence-rejected-duty
of
prosecution to prove such report -u/s 311
Cr.P.C.- Application be allowed at any stage
before pronouncement of judgment-impugned
order set aside.

Application allowed. (E-9)

List of Cases cited:

V.N. Patil Vs Niranjan Kumar & ors., (2021) 3
SCC 661

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Sanjay Kumar Dubey,
learned counsel for the applicants, Sri
Pankaj Kumar Tripathi, learned Additional
Government Advocate, learned counsel for
opposite party no.2 and perused the record.

2. This application under Section 482
CrPC has been filed for quashing the order
dated 26.04.2022 passed by the Additional
Sessions Judge/Special Judge (Electricity
Act), Court No.2, Hathras passed in ST
No.109 of 2006 (H.S. Agrawal Vs. M/S
Parsadi Lal and others), under Section 135
Electricity Act, 2003, Police Station
Chandpa,
District
Hathras
by
which
Application No.218(D) under Section 311
4 All. M/s Parsadi Lal Tulsiram Cold Agra Road, Bisana, Hathras & Anr. Vs. State of U.P. &
 Anr.
741
CrPC moved by the accused persons was
rejected.

3. In brief, facts of the case in brief
are that opposite party no.2 filed a
complaint under Section 135 of the
Electricity Act registered as Complaint
Case No.109 of 2006 (Shri H.S. Agrawal
Vs. M/S Parsadi Lal and others) against the
complainant firm and its director regarding
electricity theft by tampering the electric
meter in which after completion of
formalities, trial began, after completion of
prosecution evidence, statement of the
accused
persons
were
recorded
on
07.03.2013 under Section 311 CrPC,
evidence of DW-1, DW-2 and DW-3 were
recorded in defence and trial court provided
opportunity to the prosecution for their
cross-examinations.

4. The case of the complainant was
that the alleged meter taken from the
premises of applicant no.1, was sent to M/s
Duke Ornex, Hyderabad and the examiner
has not been examined as witness, during
the statement of PW-4, Ramesh Chandra,
the witness admitted that the report of Duke
Ornex, Hyderabad has not been received,
but the learned counsel for the complainant
stated in his argument that the report of
M/S
Duke
Ornext,
Hyderabad
was
produced in the Court and the examiner of
the meter is the necessary witness and he
must be examined in the court to ascertain
the truth.

5. On the above grounds, the
aforesaid application under Section 311
CrPC was moved for calling M/S Duke
Ornex,
Hyderabad
for
recording
its
evidence in respect of report, but the trial
court rejected the application recording
perverse findings stating therein that it is
the duty of the prosecution to set up their
case beyond reasonable doubts and in the
present case, the dispute with regard to the
report of seal received or not, is the case of
prosecution. There is dispute with regard to
theft of electricity by tampering electric
meter and in such circumstances, the
evidence of M/s Duke Ornex, Hyderabad
becomes essential for the just decision of
the case. The order is absolutely illegal,
arbitrary and against the provisions of law
and has been passed without applying the
judicial mind, hence the impugned order be
quashed.

6. The relevant documents relating to
the case have been filed as Annexures to
the counter affidavit filed on behalf of
opposite party nos.2 and 3 stating therein
that M/S Parsadi Lal Tulsiram Cold
Storage had taken electricity connection of
11 K.V. from the U.P. Power Corporation
Ltd. On a sudden check by the team of
power corporation on 18.11.2004, it was
found that the cold storage was functioning
and on suspicion all the seals of cubical
meter were sent to the M/S Duke Ornex,
Hyderabad
for
its
examination
on
20.11.2004. After receiving the report of
said meter, it was found that the reading of
meter was made lesser by the opposite
party through remote and as such bill for
payment has been sent on 27.09.2005 for
Rs.56,79,572/-.
The
applicants
were
summoned, trial started, statement of the
accused persons under Section 311 CrPC
were recorded and the applicants examined
three witnesses in defence. After a long gap
of six years from the recording of
statements under Section 313 CrPC, and at
the verge of conclusion of trial, the
applicants moved an application under
Section 311 CrPC on 27.04.2019. This
application was moved after closing of the
defence evidence on 13.03.2013 only to
delay the trial. The application was rejected
742 INDIAN LAW REPORTS ALLAHABAD SERIES
by the trial court on 26.04.2022 in which
there is no illegality at all. Hence, the
application is not maintainable and is liable
to be quashed.

7. From the perusal of the para-6 of
the impugned complaint, it is very much
clear that the Executive Engineer, Hathras
had sent the alleged tampered sealed meter
to M/S Duke Ornex, Hyderabad for
checking and after due checking, M/S Duke
Ornex Hyderabad sent the report by letter
no.2320 on 20.11.2004 which has also been
clarified through its letter that the firm had
stolen electricity by setting up sub-circuit
in the said meter and running the meter
high and low through remote. PW-4,
Ramesh Chandra deposed that he has read
over the report of the M/S Duke Ornex,
Hyderabad and this is the basis of
complaint.

8. It is not known to this Court as to
whether M/S Duke Ornex, Hyderabad is a
government laboratory or private, however,
if a report has been obtained under Section
292 or under Section 293 CrPC, such
report, being public document, would be
admissible in evidence and would be
accepted automatically and there would not
be any need to examine the scientist who
examined the material and prepared the
report on behalf of the complainant except
on the request of the defence but if any
examination report has been obtained from
any private agency, such report would be
treated to be a private document.

9. In case of report of a private
laboratory, it would be a private document
in view of Section 75 of the Indian
Evidence Act, 1872 and in that case, there
would be need of examination of the
Scientist who examined the subject-matter
and submitted the report.

10. In view of the above discussion,
this Court is of the view that since the
report was obtained from a private agency
i.e. M/S Duke Ornex, Hyderabad, hence it
was the duty of the prosecution to prove
such report in due course.

11. From the perusal of the impugned
order, it does not disclose that whether the
report of M/S Duke Ornex, Hyderabad is
on record of the lower court or not. Since
the alleged report is the basis of the
concerned Criminal Complaint, hence it
was duty of the learned trial court to order
the prosecution to produce the same as in
absence of that, there was no prima facie
evidence to prosecute the applicants.
Before passing the impugned order, it was
duty of the lower court to ascertain as to
whether the report of M/S Duke Ornex,
Hyderabad is on record or not, but he
simply based his conclusion on the
evidence of PW-4, Ramesh Chandra
without examining deeply and properly and
concluded that the burden of proof is upon
the
complainant
and
rejected
the
application moved by the applicants.

12. In this case, if the defence
evidence had been closed on 13.03.2013,
why the concerned complaint could not be
decided earlier, is also a matter of concern.

13. It would be proper to reproduce
Section 311 CrPC which is as under:-

"311. Power to summon material
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 already examined;
and the Court shall summon and examine
4 All. M/s Parsadi Lal Tulsiram Cold Agra Road, Bisana, Hathras & Anr. Vs. State of U.P. &
 Anr.
743
or recall and re- examine any such person
if his evidence appears to it to be essential
to the just decision of the case."

14. Under Section 311 CrPC, for the
ends of justice and just decision of the case,
the Court may entertain and allow the
application at any stage before the
pronouncement of judgement. The second
part of Section 311 CrPC is imperative and
binding upon the Court. Therefore, if the
report of M/S Duke Ornex, Hyderabad is
not on record, it was also duty of the
concerned
trial
court
to
direct
the
prosecution to file the same as in a criminal
case a judge cannot be a silent spectator or
referee and he has to take active part during
the trial. He should order for production of
document or the oral evidence either of the
parties to enable the court for just,
appropriate, full and final adjudication of
the case. Merely saying that it is the duty of
the prosecution to prove the case beyond
reasonable doubt, is not sufficient for the
trial court to commit an omission. If the
view of the trial judge is so, a question
arises as to why this criminal complaint
was not rejected on the date of institution
for the absence of report and evidence
regarding tampering with the seals of the
concerned meter.

15. In V.N. Patil Vs. Niranjan
Kumar and others, (2021) 3 SCC 661, the
Hon'ble Apex Court has held principles
regarding Section 311 CrPC which are as
under:-

"14.
The
object
underlying
Section 311 CrPC is that there may not be
failure of justice on account of mistake of
either party in bringing the valuable
evidence on record or leaving ambiguity in
the statements of the witnesses examined
from either side. The determinative factor
is whether it is essential to the just decision
of the case. The significant expression that
occurs is "at any stage of any inquiry or
trial or other proceeding under this Code".
It is, however, to be borne in mind that the
discretionary
power
conferred
under
Section 311 CrPC has to be exercised
judiciously, as it is always said "wider the
power, greater is the necessity of caution
while exercise of judicious discretion".

15. The principles related to the
exercise of the power under Section 311
CrPC have been well settled by this Court
in Vijay Kumar v. State of U.P., (2011) 8
SCC 136 : (2011) 3 SCC (Cri) 371 : (2012)
1 SCC (L&S) 240 : (SCC p. 141, para 17)

"17. Though Section 311 confers
vast discretion upon the court and is
expressed in the widest possible terms, the
discretionary power under the said section
can be invoked only for the ends of justice.
Discretionary power should be exercised
consistently with the provisions of the Code
and the principles of criminal law. The
discretionary
power
conferred
under
Section 311 has to be exercised judicially
for reasons stated by the court and not
arbitrarily or capriciously. Before directing
the learned Special Judge to examine Smt
Ruchi Saxena as a court witness, the High
Court did not examine the reasons assigned
by the learned Special Judge as to why it
was not necessary to examine her as a
court witness and has given the impugned
direction without assigning any reason."

16. This principle has been
further reiterated in Mannan Shaikh v.
State of W.B., (2014) 13 SCC 59 : (2014) 5
SCC (Cri) 547 and thereafter in Ratanlal v.
Prahlad Jat, (2017) 9 SCC 340 : (2017) 3
SCC (Cri) 729 and Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
744 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019) 4 SCC (Cri) 839 . The relevant
paragraphs of Swapan Kumar Chatterjee v.
CBI, (2019) 14 SCC 328 : (2019) 4 SCC
(Cri) 839 are as under: Swapan Kumar
Chatterjee v. CBI, (2019) 14 SCC 328 :
(2019) 4 SCC (Cri) 839, SCC p. 331, paras
10-11)

"10. The first part of this section
which
is
permissive
gives
purely
discretionary authority to the criminal
court and enables it at any stage of inquiry,
trial or other proceedings under the Code
to act in one of the three ways, namely, (i)
to summon any person as a witness; or (ii)
to examine any person in attendance,
though not summoned as a witness; or (iii)
to recall and re-examine any person
already examined. The second part, which
is mandatory, imposes an obligation on the
court (i) to summon and examine, or (ii) to
recall and re-examine any such person if
his evidence appears to be essential to the
just decision of the case.

11. It is well settled that the
power conferred under Section 311 should
be invoked by the court only to meet the
ends of justice. The power is to be
exercised only for strong and valid reasons
and it should be exercised with great
caution and circumspection. The court has
vide power under this section to even recall
witnesses for re-examination or further
examination, necessary in the interest of
justice, but the same has to be exercised
after taking into consideration the facts and
circumstances of each case. The power
under this provision shall not be exercised
if the court is of the view that the
application has been filed as an abuse of
the process of law."

17. The aim of every court is to
discover the truth. Section 311 CrPC is one
of many such provisions which strengthen
the arms of a court in its effort to unearth
the truth by procedure sanctioned by law.
At the same time, the discretionary power
vested under Section 311 Cr.P.C has to be
exercised judiciously for strong and valid
reasons
and
with
caution
and
circumspection to meet the ends of justice."

16. In the aforesaid case, the appeal
was allowed by the Hon'ble Apex Court
and the order of High Court was set aside
and order of the trial court regarding
summoning
of
the
witnesses
and
production of document was restored.

17. On the basis of above discussion,
this Court is of the view that the impugned
order is not in accordance with law and it is
nothing but avoidance of duty by the trial
court, hence the application deserves to be
allowed.

18. The present application under
Section 482 CrPC is allowed and the
impugned order dated 26.04.2022 passed
by the trial judge is hereby set aside.

19. The trial judge is directed to first
ascertain that the alleged report of M/S
Duke
Ornex
,
Hyderabad
regarding
tampering of seal of the impugned meter is
on record or not and if it is on record
whether the same has been proved in due
course of law by the complainant or not
and if it is on record, the learned trial court
shall provide an opportunity to summon the
concerned Scientist by whom the alleged
report had been prepared. In absence of
such report, the trial court would also think
and act as to whether in absence of the
basis of the complaint whether the present
criminal complaint was liable to be
instituted, the applicants were liable to be
summoned and charged and would pass
4 All. Dr. Mod. Iqbal Gaji Vs. State of U.P. & Anr.
745
appropriate order/judgment in accordance
with law.
----------
(2023) 4 ILRA 745
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No. 20368 of 2017

Dr. Mod. Iqbal Gaji ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Avnish Kumar Srivastava, Sri Anoop
Trivedi

Counsel for the Opposite Parties:
G.A., Sri Brijesh Sahai, Sri Yogesh Kumar
Srivastava, Sri Bhavya Sahai

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482-Applicant
seeks quashing of order declaring the opposite
party as juvenile-All the accused in the case
were given capital punishment-Appeal-order
modified to life imprisonment-one PIL filed for
release of prisoners who may have been below
18 years of age on the date of commission-
directions issued by High Court provide legal aid
to such prisoners-opposite party applied -age
determined by medical board-opposite party
declared juvenile-pressence of remedy of Appeal
will not render the Application u/s 482 non
maintainable-impugned
order
reveals
that
complainant was neither served with notice-no
opportunity of hearing-order quashed.

List of Cases cited:

1. Prabhu Chawla Vs St. of Raj. & anr.(2016) 16
SCC 30

2. Dhariwal Tobacco Products Ltd. & ors. Vs St.
of Mah. & anr., (2009) 2 SSC 370
(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Avnish
Kumar Srivastava, learned counsel for the
applicant and Sri Brijesh Sahai, learned
Senior Advocate assisted by Sri Bhavya
Sahai, learned counsel for the opposite
party no. 2.

2. By moving this application under
Section 482 Cr.P.C. the applicant seeks to
invoke the inherent jurisdiction of this
court to quash the order dated 19.05.2017
passed by the Juvenile Justice Board, Agra
in Misc. Application No. 109 of 2017
(arising out of Crime No. 131 of 2003)
under Sections 147, 148, 149, 307, 302
IPC, Police Station Kotwali, District
Meerut by which the Juvenile Justice
Board, Agra declared the convict/O.P. No.
2 a juvenile.

3. As per facts of the case Sessions
Trial Nos. 668, 669 and 671 of 2003, Case
Crime No. 131 of 2003 and 134 of 2003
respectively under Sections 147, 148, 149,
307, 302 IPC and 25/27 Arms Act, Police
Station Kotwali, District Meerut were
decided by the trial court vide judgement
dated 04.08.2007 and all the four accused
persons were found guilty. The case was
decided into capital punishment. Criminal
Reference No. 21 of 2007 - State Vs.
Khalid and others, was made to this court
to confirm the capital punishment. The
accused persons also filed Criminal Appeal
No. 5169 of 2007 - Khalid and others Vs.
State of U.P. before this court. Both the
reference and criminal appeal were heard
together by the Division Bench of this
court. The reference was dismissed and the
appeal was partly allowed vide judgment
and order dated 05.09.2008. The death