# Manoj Kumar Yadav & Anr v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-11
- **Case number:** Application U/S 482 No. 34275 of 2024
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-yadav-anr-v-state-of-u-p-anr-51008
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 452, 504 & 506 - Against
summoning
order
-
Maintainability
-
Constitution of India, 1950 - Article 227 -
The Code of Criminal Procedure, 1973 -
Sections 156(3), 200, 397(3) - St. raised
objection regarding
maintainability
of
instant application, and submitted that in
view
of
fact
summoning
order
and
revisional order was under challenge,
application was not maintainable since
applicants have alternative remedy of
filing petition u/a 227 - Further taken
recourse to Section 397(3) and bar
contained therein to submit that in cases
where
second
revision
was
not
maintainable,
applicants
cannot
take
recourse proceeding u/s 482 to bye pass
the bar. (Para 5)

Held, neither Article 227 nor Section 482
indicate any aspect ousting jurisdiction of
other - In such circumstances, provisions
of Article 227 and Section 482 operate on
concurrent
basis
providing
option
to
applicant to approach Court under either
provision. (Para 11)

Regarding complaint, complainant admitted
he had taken loan pertaining to moveable
property from Bank, did not repay -
Applicants, official of Finance Company,
initiated proceedings for recovery of loan
amount by arbitration proceedings, award
passed and due to this, complaint lodged
against applicants not to recover loan. (Para
14)

Serious contradiction in averments made in
complaint
regarding
injury
upon
complainant and his family members by
applicants - Till next date of listing,
proceedings shall remain stayed. (Para 15)

Application pending. (E-13)

List of Cases cited:

## Text

11 All. Manoj Kumar Yadav & Anr. Vs. State of U.P. & Anr.
295
----------
(2024) 11 ILRA 295
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Application U/S 482 No. 34275 of 2024

Manoj Kumar Yadav & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Ekansh Varma, Vishnu Kumar Srivastava

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 420, 452, 504 & 506 - Against
summoning
order
-
Maintainability
-
Constitution of India, 1950 - Article 227 -
The Code of Criminal Procedure, 1973 -
Sections 156(3), 200, 397(3) - St. raised
objection regarding
maintainability
of
instant application, and submitted that in
view
of
fact
summoning
order
and
revisional order was under challenge,
application was not maintainable since
applicants have alternative remedy of
filing petition u/a 227 - Further taken
recourse to Section 397(3) and bar
contained therein to submit that in cases
where
second
revision
was
not
maintainable,
applicants
cannot
take
recourse proceeding u/s 482 to bye pass
the bar. (Para 5)

Held, neither Article 227 nor Section 482
indicate any aspect ousting jurisdiction of
other - In such circumstances, provisions
of Article 227 and Section 482 operate on
concurrent
basis
providing
option
to
applicant to approach Court under either
provision. (Para 11)

Regarding complaint, complainant admitted
he had taken loan pertaining to moveable
property from Bank, did not repay -
Applicants, official of Finance Company,
initiated proceedings for recovery of loan
amount by arbitration proceedings, award
passed and due to this, complaint lodged
against applicants not to recover loan. (Para
14)

Serious contradiction in averments made in
complaint
regarding
injury
upon
complainant and his family members by
applicants - Till next date of listing,
proceedings shall remain stayed. (Para 15)

Application pending. (E-13)

List of Cases cited:

1. Madhu Limaye Vs The St. of Mah.; (1977)4
SCC 551, (Para 10)

2. Krishnan & anr. Vs Krishnaveni & anr.; AIR
1997 SC 987, (Para 14)

3. Prabhu Chawla Vs St. of Raj. & anr.; AIR 2016
SC 4245, (Para 6)

4. G. Sagar Suri & anr. Vs St. of U.P. & ors.
reported in (2000)2 SCC 636, (Para 7)
(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
applicants
and
learned
Additional
Government
Advocate
appearing
for
opposite party no.1 State.

2. Issue notice to opposite party
no.2, returnable at an early date.

3. Application under Section 482
Cr.P.C.
has
been
filed
challenging
summoning order dated 16.11.2023 as well
as proceedings of Complaint Case No.326
of 2019; Amjad Khan versus Manoj Yadav
& Ors., under Sections 420, 452, 504 &
506 I.P.C., Police Station Babina, District
Jhansi as well as order dated 29.08.2024
passed in Criminal Revision Case No.42 of
296 INDIAN LAW REPORTS ALLAHABAD SERIES
2024; Manoj Yadav & Ors. versus State of
U.P. & Ors.

4. Also under challenge is the
revisional order dated 29.08.2024 whereby
Criminal
Revision
preferred
by
the
applicants has been rejected.

5. At the very outset, learned
Additional
Government Advocate
has
raised a preliminary objection regarding
maintainability of this application under
Section 482 Cr.P.C. with the submission
that in view of the fact that summoning
order as well as revisional order is under
challenge, the application under Section
482 Cr.P.C. is not maintainable since
applicants have an alternative and equally
efficacious remedy of filing of petition
under Article 227 of the constitution of
India. Learned Additional Government
Advocate has taken recourse to Section
397(3) Cr.P.C. and the Bar contained
therein to submit that in cases where a
second revision is not maintainable, the
applicants
cannot
take
recourse
a
proceeding under Section 482 Cr.P.C. to
bye pass the Bar created in the aforesaid
provision.

6. Learned counsel for applicants
has refuted submissions advanced by
learned Additional Government Advocate
with the submission that proceedings under
Article 227 of the Constitution of India and
Section 482 Cr.P.C. are concurrent in nature
for the purposes of exercising supervisory
control over the trial courts and therefore
one provision will not oust the other. It is
further submitted that since Section 482
Cr.P.C. commences with a non obstante
clause,
it would prevail over other
provisions of Cr.P.C. including the bar of
Section 397(3) Cr.P.C. Learned counsel has
adverted to the following judgements:-
"(i.) Madhu Limaye versus
The
State
of
Maharashtra;
(1977)4 SCC 551,
(ii) Krishnan & Anr. v.
Krishnaveni & Anr.; AIR 1997 SC
987, and
(iii) Prabhu Chawla versus
State of Rajasthan & Anr.; AIR
2016 SC 4245"

7. With regard to submissions of
learned Additional Government Advocate,
Hon'ble the Supreme Court in the cases of
Madhu Limaye versus The State of
Maharashtra; (1977)4 SCC 551, Krishnan
& Anr. v. Krishnaveni & Anr.; AIR 1997
SC 987, and Prabhu Chawla versus State
of Rajasthan & Anr.; AIR 2016 SC 4245
has already held that since provisions of
Section 482 Cr.P.C. commence with a non
obstante clause, it would have primacy over
all the other provisions of the aforesaid
Court including the bar of Section 397(3)
Cr.P.C. Law enunciated in the case of
Madhu Limaye (supra) is as follows:

"10. As pointed out in Amar
Nath's case (supra) the purpose of
putting a bar on the power of
revision
in
relation
to
any
interlocutory order passed in an
appeal, inquiry, trial or other
proceeding, is to bring about
expeditious disposal of the cases
finally. More often than not, the
revisional power of the High Court
was resorted to in relation to
interlocutory orders delaying the
final disposal of the proceedings.
The Legislature in its wisdom
decided to check this delay by
introducing
sub-section
(2)
in
Section 397. On the one hand, a
bar has been put in the way of the
High Court (as also of the Sessions
11 All. Manoj Kumar Yadav & Anr. Vs. State of U.P. & Anr.
297
Judge) for exercise of the revisional
power
in
relation
to
any
interlocutory order, on the other,
the power has been conferred in
almost the same terms as it was in
the 1898 Code. On a plain reading
of Section 482, however, it would
follow that nothing in the Code,
which would include sub-section
(2) of Section 397 also, "shall be
deemed to limit or affect the
inherent
powers
of
the
High
Court", But, if we were to say that
the said bar is not to operate in the
exercise of the inherent power at
all, it will be setting at naught one
of the limitations imposed upon the
exercise of the revisional powers.
In such a situation, what is the
harmonious way out? In our
opinion, a happy solution of this
problem would be to say that the
bar provided in sub-section (2) of
Section 397 operates only in
exercise of the revisional power of
the High Court, meaning thereby
that the High Court will have no
power of revision in relation to any
interlocutory
order.
Then
in
accordance with one of the other
principles enunciated above, the
inherent power will come into play,
there being no other provision in
the Code for the redress of the
grievance of the aggrieved party.
But then, if the order assailed is
purely
of
an
interlocutory
character which could be corrected
in exercise of the revisional power
of the High Court under the 1898
Code, the High Court will refuse to
exercise its inherent power. But in
case the impugned order clearly
brings about a situation which is an
abuse of the process of the Court or
for the purpose of securing the ends
of justice interference by the High
Court is absolutely necessary, then
nothing contained in Section 397(2)
can limit or affect the exercise of
the inherent power by the High
Court. But such cases would be few
and far between. The High Court
must exercise the inherent power
very sparingly. One such case
would be the desirability of the
quashing of a criminal proceeding
initiated illegally, vexatiously or as
being without jurisdiction. Take for
example
a
case
where
a
prosecution is launched under the
Prevention
of
Corruption
Act
without a sanction, then the trial of
the
accused
will
be
without
jurisdiction and even after his
acquittal a second trial, after
proper sanction will not be barred
on the doctrine of autrefois acquit.
Even assuming, although we shall
presently show that it is not so, that
in such a case an order of the
Court taking cognizance or issuing
processes is an interlocutory order,
does it stand to reason to say that
inherent power of the High Court
cannot be exercised for stopping
the criminal proceeding as early as
possible, instead of harassing the
accused up to the end? The answer
is obvious that the bar will not
operate to prevent the abuse of the
process of the Court and/or to
secure the ends of justice. The label
of the petition filed by an aggrieved
party is immaterial. The High
Court can examine the matter in an
appropriate case under its inherent
powers.
The
present
case
undoubtedly falls for exercise of the
power of the High Court in
298 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with Section 482 of the
1973
Code,
even
assuming,
although
not
accepting,
that
invoking the revisional power of the
High Court is impermissible."

8. Similarly relevant paragraph in
the case of Krishnan (supra) is as follows:

"14. ...............under subsection (1) of Section 397 is
prohibited
by
sub-section
(3)
thereof, inherent power of the High
Court is still available under
Section 482 of the Code and as it is
paramount power of continuous
superintendence of the High Court
under Section 483, the High Court
is justified in interfering with the
order leading to miscarriage of
justice and in setting aside the
order
of
the
courts
below.
..............".

9. Similarly, in the case of Prabhu
Chawla (supra) it has already been held
that since provisions of Section 482 Cr.P.C.
commence with a non obstante clause, it
would have primacy over all the other
provisions of the aforesaid Court including
the bar of Section 397(3) Cr.P.C. law
enunciated are as follows:

"6. In our considered view
any attempt to explain the law
further as regards the issue relating
to inherent power of the High
Court under Section 482 CrPC is
unwarranted. We would simply
reiterate that Section 482 begins
with a non obstante clause to state:
"482.Saving
of
inherent
powers of High Court.?Nothing in
this Code shall be deemed to limit
or affect the inherent powers of the
High Court to make such orders as
may be necessary to give effect to
any order under this Code, or to
prevent abuse of the process of any
court or otherwise to secure the
ends of justice."
A fortiori, there can be no
total ban on the exercise of such
wholesome jurisdiction where, in
the words of Krishna Iyer, J.
"abuse of the process of the
court
or
other
extraordinary
situation
excites
the
Court's
jurisdiction. The limitation is selfrestraint,
nothing
more".
(Raj
Kapoor case [Raj Kapoor v. State,
(1980) 1 SCC 43 : 1980 SCC (Cri)
72] , SCC p. 48, para 10)
We venture to add a further
reason in support. Since Section
397 CrPC is attracted against all
orders other than interlocutory, a
contrary view would limit the
availability of inherent powers
under Section 482 CrPC only to
petty
interlocutory
orders!
A
situation wholly unwarranted and
undesirable."

10.

Upon
consideration
of
submissions advanced by learned counsel
for parties and perusal of material on
record,
it
appears
that
against
the
summoning
order,
applicants
have
preferred the revision under Section 397(3)
Cr.P.C. and upon its rejection, the present
application under Section 482 Cr.P.C. has
been filed.

11. So far as availability of filing a
petition
under
Article
227
of
the
Constitution of India is concerned, the
wordings
of
the
aforesaid
Article
juxtaposed with the wordings of Section
482 Cr.P.C. clearly indicate that such
11 All. Manoj Kumar Yadav & Anr. Vs. State of U.P. & Anr.
299
jurisdiction is to be exercised by this Court
as a supervisory jurisdiction in order to
prevent abuse of process of law. Neither
Article 227 of the Constitution of India nor
Section 482 Cr.P.C. indicate any aspect
ousting jurisdiction of the other. In such
circumstances, it can only be held that
provisions
of
Article
227
of
the
Constitution of India as well as Section 482
Cr.P.C. operate on a concurrent basis
providing an option to an applicant to
approach this Court under either provision.

12. The said aspect has also been
considered by Hon'ble the Supreme Court
in the G. Sagar Suri & Anr. versus State of
U.P. & Ors. reported in (2000)2 SCC 636
in the following manner:

"7. It was submitted by Mr
Lalit, learned counsel for the
second
respondent
that
the
appellants have already filed an
application
in
the
Court
of
Additional Judicial Magistrate for
their discharge and that this Court
should not interfere in the criminal
proceedings which are at the
threshold. We do not think that on
filing
of
any
application
for
discharge, the High Court cannot
exercise
its
jurisdiction
under
Section 482 of the Code. In this
connection, reference may be made
to two decisions of this Court in
Pepsi Foods Ltd. v. Special Judicial
Magistrate [(1998) 5 SCC 749 :
1998 SCC (Cri) 1400] and Ashok
Chaturvedi v. Shitul H. Chanchani
[(1998) 7 SCC 698 : 1998 SCC
(Cri) 1704] wherein it has been
specifically held that though the
Magistrate trying a case has
jurisdiction
to
discharge
the
accused at any stage of the trial if
he considers the charge to be
groundless but that does not mean
that the accused cannot approach
the High Court under Section 482
of the Code or Article 227 of the
Constitution to have the proceeding
quashed against them when no
offence has been made out against
them and still why must they
undergo the agony of a criminal
trial."

13. In view of aforesaid discussion
and settled law with regard to this
proposition, preliminary objection raised by
learned Additional Government Advocate
is hereby rejected.

14. So far as merits of case are
concerned, leaned counsel for applicants
has adverted to the complaint made under
Section 156(3) Cr.P.C. to submit that the
complainant himself has admitted the fact
that he has availed himself of loan
pertaining to moveable property from the
Bank which he did not repay. It is
submitted that the applicants are official of
the Finance Company who had initiated
proceedings for recovery of the loan
amount
by
means
of
arbitration
proceedings in which an award has also
been passed and it is owing to this fact that
the complaint has been lodged against them
to compel the Finance Company not to
recover the loan. It is submitted that ex
facie contents of the complaint itself
indicate that a criminal colour is being
sought to be given to a purely civil dispute.

15. Learned counsel has also
adverted to statement recorded under
Section 200 Cr.P.C. to submit that there is
serious contradiction in the averments
made in the complaint and the said
statement particularly with regard to
300 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants having inflicted injury upon
complainant and his family members.

16. It is submitted that from a bare
perusal of the complaint and statement of
the complainant, provisions of Sections 420
504, 506 IPC are not made out and is a
factor which was not considered by the trial
court.

17.

Learned
Additional
Government Advocate has opposed the
application with the submission that at the
stage of taking cognizance of a complaint,
the aspects required to be considered by the
trial court have been adverted to.

18. Prima facie submissions
advanced by learned counsel for applicants
have force and require consideration for
which opposite parties are granted time to
file counter affidavit.

19. List this case on 18.12.2024,
before appropriate Court along with service
report.

20. Till next date of listing, the
proceedings in Complaint Case No.326 of
2019; Amjad Khan versus Manoj Yadav &
Ors., under Sections 420, 452, 504 & 506
I.P.C., Police Station Babina, District
Jhansi as well as order dated 29.08.2024
passed in Criminal Revision Case No.42 of
2024; Manoj Yadav & Ors. versus State of
U.P. & Ors shall remain stayed.
----------
(2024) 11 ILRA 300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ -A No. 817 of 2024

Dinesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constitution of India,1950Article
226-whether
the
omission
to
disclose pending criminal cases by a
selected candidate in a declaration form
disqualified him from govt. employment,
despite subsequent acquittal and noninvolvement in one of the cases-Nondisclosure of pending or past criminal
cases must be evaluated contextually,
taking into account the nature of offenses,
the outcome of the cases and the intent
behind the omission-The Apex Court laid
down principles in Avtar Singh cases and
subsequent cases, held that suppression
of
trivial
matters
or
unintentional
omissions cannot automatically disqualify
a
candidate-Employers
must
exercise
discretion reasonably and fairly, avoiding
arbitrary decisions in assessing character
verification
and
suitability
for
appointment-Hence, the court quashed
the rejection order issued by the State
and
directed
the
issuance
of
the
appointment
letter
to
the
petitioner
within one month-the court held that the
petitioner's
omission
was
neither
deliberate nor material to his suitability
for the post, given his acquittal and the
District Magistrate's favorable report.

The writ petition is allowed. (E-6)

List of Cases cited:

1. St. of W.B. & ors. Vs Mitul Kr. Jana Civil
Appeal No. 8510 of 2011

2. Commr. Of Police, Delhi & anr. Vs Dhavat
Singh (1999) 1 SCC 246