# Mahendra Pal Sharma and others v. State of U.P. and another - **Citation:** (2002) 3 ILRA 862 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-09-25 - **Case number:** Civil Misc. Writ Petition No. 41079 of 2002 - **Bench:** M. Katju, Rakesh Tiwari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pal-sharma-and-others-v-state-of-u-p-and-another-40023 - **Pages:** 2 ## Headnote Code of Criminal Procedure- Section 190 (1) (b) the cognizance of the case was taken under section 190 (1) (b) Cr.P.C. and therefore provisions contained in proviso to Section 202 Cr.P.C. is not applicable in this case. Held in para 19 The learned Magistrate was also not justified while recalling the order dated 8.1.1999 on the ground that since the case was exclusively triable by the Court of Sessions, all the witnesses have to be examined. The above observation was probably in view of proviso to Section 202 Cr.P.C. But the above procedure has to be adopted in complaint case. As held above cognizance of the case was taken under section 190 (1) (b) Cr.P.C. and therefore provisions contained in proviso to Section 202 Cr.P.C. is not applicable in this case. Therefore, the Revisional Court rightly held that the order of the Magistrate dated 23.10.2000 by which he recalled the order dated 8.1.1999 was not in accordance with law. Case law referred: (1995) 6 SCC P. 194 1993 (3) ACC P. 665 ## Text http://www.allahabadhighcourt.nic.in 862 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 the petitioner. There was absolutely no necessity to hold any departmental enquiry and the view to the contrary taken by the Tribunal is wholly erroneous in law. 10. The writ petition accordingly succeeds and is hereby allowed. The impugned order dated 2.4.1998 of the Central Administrative Tribunal is quashed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.9.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE RAKESH TIWARI, J. Civil Misc. Writ Petition No. 41079 of 2002 M/s Hakim JI Brik Industries (eit Udhyog) ...Petitioner Versus The State of U.P. & others ...Respondent Counsel for the Petitioner: Sri S.K. Gaur Counsel for the Respondents: S.C. U.P. Minor Minerals (Concessions) Rules 1963- Bhumidhari right is not proprietary right but tenancy right. No doubt bumidhari right is a very high kind of tenancy right because it is heritable and transferable, never the less it is not proprietary right. Held in para 3 SCC 2000 (8) P. 655 Bhumidari right is not proprietary right but tenancy right. No doubt bhumidhari right is a very high kind of tenancy right because it is heritable and transferable, nevertheless it is not proprietary right. The proprietor of the land is the State in whom the land vests under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act. Thus, there is no force in this writ petition. The writ petition is dismissed. (Delivered by Hon'ble M. Katju, J.) 1. The petitioner is challenging demand of royalty vide notice dated 12.7.2002, Annexure 1 to the petition. The royalty is being charged under the U.P. Minor Minerals (Concessions) Rules, 1963. 2. Learned counsel for the petitioner has submitted that the petitioner is excavating earth from his own bhumidhari land and hence no royalty can be charged. He has relied on the Supreme Court decision in Quarry Owner's Association versus State of Bihar, 2000 (8) SCC 655. 3. The submission of the learned counsel for the petitioner proceeds on a misconception. Buumidari right is not proprietary right but tenancy right. No doubt bhumidhari right is a very high kind of tenancy right because it is heritable and transferable, nevertheless it is not proprietary right. The proprietor of the land is the State in whom the land vests under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act. Thus, there is no force in this writ petition. The writ petition is dismissed. --------- http://www.allahabadhighcourt.nic.in 3 All] Mahendra Pal Sharma and others V. State of U.P. and another 863 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 25.9.2002 BEFORE THE HON'BLE U.S. TRIPATHI, J. Criminal Misc. Application No. 8422 of 2002 Mahendra Pal Sharma and others ...Applicants Versus State of U.P. and another ...Opp. Parties Counsel for the Applicants: Sri Sunil Kumar Counsel for the Opposite Parties: A.G.A. Code of Criminal Procedure- Section 190 (1) (b) the cognizance of the case was taken under section 190 (1) (b) Cr.P.C. and therefore provisions contained in proviso to Section 202 Cr.P.C. is not applicable in this case. Held in para 19 The learned Magistrate was also not justified while recalling the order dated 8.1.1999 on the ground that since the case was exclusively triable by the Court of Sessions, all the witnesses have to be examined. The above observation was probably in view of proviso to Section 202 Cr.P.C. But the above procedure has to be adopted in complaint case. As held above cognizance of the case was taken under section 190 (1) (b) Cr.P.C. and therefore provisions contained in proviso to Section 202 Cr.P.C. is not applicable in this case. Therefore, the Revisional Court rightly held that the order of the Magistrate dated 23.10.2000 by which he recalled the order dated 8.1.1999 was not in accordance with law. Case law referred: (1995) 6 SCC P. 194 1993 (3) ACC P. 665 (Delivered by Hon'ble U.S. Tripathi, J.) 1. This application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 1255 of 2002 Yogendra versus Mahendra and others under Sections 323, 307, 452 and 504 IPC P.S. Pahasu, district Bulandshahr pending in the court of Additional Civil Judge (Junior Division), l Khurja (Bulandshahr) and for setting aside the order dated 2.2.2002 passed by Additional Sessions Judge, Court No. 4, Bulandshahr in Criminal Revision No. 77 of 2001. 2. The facts giving rise to this application, briefly narrated, are that on 2.4.1998 Rakesh Kumar Sharma applicant no. 2 lodged a report against Yogendra opposite party no. 2 and three other persons under Sections 323, 504 and 427 IPC with the allegations that on 1.4.1998 at about 6 p.m. while he was returning to his house from his duties and reached in front of house of Suresh Chandra, the accused of the said case namely Suresh Chandra, Pintoo and Yograj caused injuries on him with lathi danda and also extended threats. During marpit a sum of Rs.6,000/- which he was keeping in his pocket had fallen down and could not be traced. On the basis of above report a non cognizable report under Sections 323, 504, 427 IPC was written at P.S. Pahasu. Subsequently, the case was altered under Section 308 and 325 IPC and registered at crime no. 64 of 1998 on 28.4.1998 and was investigated. The police after investigation submitted charge sheet against Suresh Chandra and Devraj on 13.5.1998 and latter on supplementary charge sheet was submitted against Yogendra opposite party no. 2 and Pintoo on 14.6.1998.