# Manoj Kumar Swami v. State of U.P

- **Citation:** (2006) 2 ILRA 616
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-07
- **Bench:** R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-swami-v-state-of-u-p-40620
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 482application to summon school record-by
defence counsel during Trial of offence
under Section 498-A/304 I.P.C.-on the
ground that in dying declaration the
deceased had made statement about her
illiteracy-actually she had passed High
School examination-Trail Court rejected
on the ground that the statement of the
deceased has been recorded in presence
of Magistrate-cannot be disbelievedheld-deceased has right to summon any
evidence to substantiate his defencerejection-held not-proper.
2 All] Manoj Kumar Swami V. State of U.P.
617
Held: Para 4

Taking into consideration the allegation
of the applicant that the deceased was
an uneducated lady but she had given
statement that she had passed High
School examinati on, it is in the interest
of justice that the application of the
applicant to summon the relevant record
to ascertain this fact whether she had
passed High School examination or not,
should have been granted by the learned
Addl. Sessions Judge. The application,
therefore, deserves to be allowed.

## Text

616 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

10. In the above conspectus, it is
hereby mandated that the Stamp reporter
of the Court/Office shall scrutinize the
Vakalatnama very closely and unless they
are complete in all requisite details as
embodied in Rule 2-A of the Rules of the
Court, he will not allow the petition to be
processed for being presented before the
Court.

11. Similar disquieting, situation
prevails in the subordinate courts where
according to the Bar Council Resolution
dated 10.12.1989, unscrupulous elements
can be seen to be playing tricks with the
Courts bringing disrepute to the judiciary
as well as to the dignity of the lawyers
community. In my considered view there
is compelling need to amend the statutory
Rules pertaining to subordinate courts as
well
on
similar
lines.
Till
such
amendments are effected in the statutory
rules, it would be in the fitness of things
to circulate a copy of this judgment to all
the District Judges/all the Chairmen of the
Tribunals/Chief Secretary, U.P. Shasan
Lucknow for strict compliance with the
resolution of the Bar Council of the State
of U.P.. It may be suggested that the
District
Judges
and
all
authorities
concerned in State of U.P. shall maintain
a register docketing complete details
about the lawyers practicing, which may
be duly prepared upon verification of
original enrolment certificates of an
Advocate and whenever any Vakalatnama
is filed and in case of any suspicion about
the authenticity of registration/enrolment
number may be processed for being
presented before the Courts/Tribunals etc.
It may be quipped here for edification that
so far as High Court is concerned Rules of
the Court have already been amended and
in pursuance thereof list of Advocates is
being processed.

12. Registrar General is directed to
ensure strict compliance with the above
directions henceforth. As stated supra, a
copy of this judgment be circulated to all
authorities including Chairmen of various
Tribunals functioning in the State of U.P.
and
Chief
Secretary,
U.P.
Shasan
Lucknow for onward transmission and
compliance
in
all
courts
including
Revenue as well as consolidation courts
within four months. The matter may be
listed on 7.7.2006 for monitoring the
compliance
with
the
directions
aforestated.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2006

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Application no. 1591 of
2006

Manoj Kumar Swami

...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri S.P. Singh Raghav
Sri Anil Raghav

Counsel for the Opposite Party:
A.G.A.
Code of Criminal Procedure-Section 482application to summon school record-by
defence counsel during Trial of offence
under Section 498-A/304 I.P.C.-on the
ground that in dying declaration the
deceased had made statement about her
illiteracy-actually she had passed High
School examination-Trail Court rejected
on the ground that the statement of the
deceased has been recorded in presence
of Magistrate-cannot be disbelievedheld-deceased has right to summon any
evidence to substantiate his defencerejection-held not-proper.
2 All] Manoj Kumar Swami V. State of U.P.
617
Held: Para 4

Taking into consideration the allegation
of the applicant that the deceased was
an uneducated lady but she had given
statement that she had passed High
School examinati on, it is in the interest
of justice that the application of the
applicant to summon the relevant record
to ascertain this fact whether she had
passed High School examination or not,
should have been granted by the learned
Addl. Sessions Judge. The application,
therefore, deserves to be allowed.

(Delivered by Hon'ble R.K.Rastogi, J.)

1. This is an application under
section 482 Cr.P.C. for quashing the order
dated 18.1.2006 passed by the Addl.
Sessions
Judge-VIth,
Ghaziabad
in
S.T.No. 68 of 2001, State Vs. Manoj
Swami and others, under sections 498-A,
304-B I.P.C. of police station Sihani Gate,
Ghaziabad.

2. The facts relevant for disposal of
this application are that the applicants,
Manoj and other co-accused persons are
facing trial under sections 498-A and 304B I.P.C. in the aforesaid case. It appears
from perusal of the order of the learned
Addl. Sessions Judge that the prosecution
evidence has been recorded and the case
is fixed for defence evidence. The
accused had moved an application for
summoning
the
record
of
Kanya
Vidyalaya
Khurja
for
tenth
class
pertaining to the years from 1997 to 1999.
Their allegation is that the deceased
Shashi had stated in her dying declaration
that
she
had
passed
High
School
examination from the aforesaid school
three years ago. This statement was given
by her on 8.9.2000. The applicant's
allegation is that she was an uneducated
lady and had not studied in any school. So
in view of the statement made in the
dying declaration he wants to summon the
record of the said school. The learned
Sessions
Judge
rejected
the
above
application on the ground that the dying
declaration was recorded by the S.D.M.
and so there was no necessity to summon
the above record.

3. Having heard learned counsel for
the applicant as well as the learned
A.G.A. for the State, I am of the view that
the case is listed for defence evidence;
and at the stage of defence, the accused
has a right to summon any evidence
which may be relevant for proper
appreciation of the prosecution evidence
and to substantiate his defence.

4. Taking into consideration the
allegation of the applicant that the
deceased was an uneducated lady but she
had given statement that she had passed
High School examination, it is in the
interest of justice that the application of
the applicant to summon the relevant
record to ascertain this fact whether she
had passed High School examination or
not, should have been granted by the
learned
Addl.
Sessions
Judge.
The
application, therefore, deserves to be
allowed.

5. The application is allowed and the
Addl. Sessions Judge is directed to
summon the relevant record to ascertain
the fact whether the deceased had actually
passed High School examination or not.

The applicant shall appear before the
trial court on 25.2.2006.
Application Allowed.
---------
618 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 17190 of 2006

Sant Gadge Seva Niketan, U.P. and
another

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

Counsel for the Petitioners:
Sri Rakesh Kumar Shukla

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-Practice
and
Procedure-direction
to
decide
representation-without considering the
merit of case-High Court should not
issue such direction-otherwise a time
barred claim may be decided-without
provision of review.

Held: Para 7

A Division Bench of this Court to which
one of us (Hon. Dr. B.S. Chauhan, J. was
a party) in Writ Petition No. 8642 of
2003 (Rajendra Singh Vs. State of U.P. &
Ors.) decided on 30.7.2003 has also held
that without considering the merit of the
case, the Court should not issue a
direction to decide representation to any
of the authorities for the reason that
under
the
garb
of
getting
the
representation decided, the party may
succeed in getting adjudicated a time
barred claim, may be by an authority
having no competence or by deciding the
representation
an
order
may
be
reviewed though remedy of review is not
provided under the Statute. In the said
case, under the garb of getting the
representation
decided,
the
party
wanted the authority under the U.P.
Motor Vehicles Taxation Act, 1997 to
review its assessment.
Case law discussed:
2000 (6) SCC-293
AIR 2004 SC-510
J.T. 2006 (3) SC-189

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for disbursing the amount under a nonstatutory contract. The Supreme Court has
time and again examined this issue and
observed that a writ petition does not lie
for recovery of an amount under a
contract and even though a Statute may
expressly or impliedly confer power on a
statutory body to enter into contracts in
order to enable it to discharge its
functions but disputes arising out of the
terms of such contracts have to be settled
by the ordinary principles of law of
contract and the fact that one of the
parties to the agreement is a statutory or
public body does not affect the principles
to be applied. It has also been emphasised
that such a contract is not a statutory
contract and the disputes relating to
interpretation of the terms and conditions
of such a contract cannot be agitated in a
writ petition under Article 226 of the
Constitution. Thus, whether any amount
is due or not and refusal to pay it is
justified or not are not matters which can
be agitated and decided in a writ petition.

2. In this connection reference may
be made to the decision of the Supreme
Court in Kerala State Electricity Board &
Anr. Vs. Kurien E. Kalathil & Ors.,
(2000) 6 SCC 293, wherein it was
observed :-

"We find that there is a merit in the
first contention of Mr. Raval. Learned
counsel
has
rightly
questioned
the