# Miss Priti Pandya v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** Criminal Misc. Application U/S 482 No. 26024 of 2021
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/miss-priti-pandya-v-state-of-u-p-anr-48755
- **Pages:** 8

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 311 - Negotiable
Instrument
Act,
1881
-
S.
138
-
Production of documents - Applicability of
S. 311 Cr.P.C. to the case relating to S.
138 of NI Act - Just decision of case -
Held, in the cases relating to Section 138
N.I. Act, the Court can entertain an
Application under Section 311 Cr.P.C at
any St. of the inquiry, trial or other
proceedings
suo-moto
or
on
the
application of either party - IInd part of S.
311 of Cr.P.C. casts duty upon the Court to
summon,
examine
and
recall
and
reexamine
any
such
person,
if
his
evidence, appears to be essential for the
just decision of the case - High Court held
the exercise of power u/s 311 Cr.P.C. for
passing impugned order and for producing
the documentary evidence necessary for
just decision of the trial. (Para 16, 17 and
34)
B. Criminal Law - Criminal Procedure
Code,1973 - Section 397(2) & 482 -
Interlocutory order - Maintainability of
application u/s 482 - Nature of order
passed u/s 311 Cr.P.C. - Held, order
summoning
or
refusing
to
summon
witnesses under Section 311 Cr.P.C is an
interlocutory order within the meaning of
Sec. 397 (2) Cr.P.C as it does not decide
any substantive right of litigating parties.
Hence no revision lies against such order -
When Section 397 (2) Cr.P.C prohibits
interference in respect of the interlocutory
orders, Section 482 Cr.P.C cannot be
availed to achieve the same objective.
(Para 36 and 37)
Application dismissed. (E-1)
List of Cases cited:-

## Text

258 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned in terms of the directions issued
by us in the body of this judgment under the
heading "disposal of drugs".

5. After hearing the learned counsel
for the applicant, learned counsel for N.C.B
as well as A.G.As., and after perusing the
order impugned as well as averments made
in the present application, this Court is of
the opinion, that the arguments as raised by
learned counsel for the applicant has
substance that the vehicle shall be released
in order to avoid damage but the applicant
has been wrongly moved before the learned
Magistrate. Such vehicle also could be
seized and disposed of in terms of Section
52A (1) of the Act. However, the proper
remedy available to the applicant to move
application under section 63 of N.D.P.S.
Act before the trial court, which is quoted
below:-

" 63. Procedure in making
confiscations.?

(1) In the trial of offences under
this Act, whether the accused is convicted
or acquitted or discharged, the court shall
decide whether any article or thing seized
under this Act is liable to confiscation
under section 60 or section 61 or section
62 and, if it decides that the article is so
liable,
it
may
order
confiscation
accordingly.

(2) Where any article or thing
seized under this Act appears to be liable to
confiscation under section 60 or section 61
or section 62, but the person who committed
the offence in connection therewith is not
known or cannot be found, the court may
inquire into and decide such liability, and
may
order
confiscation
accordingly:
Provided that no order of confiscation of an
article or thing shall be made until the
expiry of one month from the date of seizure,
or without hearing any person who may
claim any right thereto and the evidence, if
any, which he produces in respect of his
claim: Provided further that if any such
article or thing, other than a narcotic drug,
psychotropic
substance,
1[controlled
substance,] the opium poppy, coca plant or
cannabis plant is liable to speedy and
natural decay, or if the court is of opinion
that its sale would be for the benefit of its
owner, it may at any time direct it to be sold;
and the provisions of this sub-section shall,
as nearly as may be practicable, apply to the
net proceeds of the sale.

6. Accordingly, there is no infirmity in
the
impugned
order.
However,
the
contention advanced by learned counsel for
the applicant is acceptable up to the extent
that to avoid damage of the vehicle, the
release of vehicle is necessary.

7. Considering the aforesaid judgments
and discussions section 52A(1) and Section
63 of the N.D.P.S. Act are attracted.
Therefore, the application is disposed off
with liberty to the applicant to move an
appropriate application under section 52A(1)
and section 63 of the N.D.P.S. Act before
the trial court, the same shall be entertained
by the court below in accordance with law,
as expeditiously as possible.
----------
(2022) 8 ILRA 258
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Misc. Application U/S 482 No. 26024 of
2021

Miss Priti Pandya ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
8 All. Miss Priti Pandya Vs. State of U.P. & Anr.
259
Counsel for the Applicant:
Sri Dheeraj Singh (Bohra)

Counsel for the Opposite Parties:
G.A., Sri Rakesh Kumar Srivastava

A. Criminal Law - Criminal Procedure
Code,1973 - Section 311 - Negotiable
Instrument
Act,
1881
-
S.
138
-
Production of documents - Applicability of
S. 311 Cr.P.C. to the case relating to S.
138 of NI Act - Just decision of case -
Held, in the cases relating to Section 138
N.I. Act, the Court can entertain an
Application under Section 311 Cr.P.C at
any St. of the inquiry, trial or other
proceedings
suo-moto
or
on
the
application of either party - IInd part of S.
311 of Cr.P.C. casts duty upon the Court to
summon,
examine
and
recall
and
reexamine
any
such
person,
if
his
evidence, appears to be essential for the
just decision of the case - High Court held
the exercise of power u/s 311 Cr.P.C. for
passing impugned order and for producing
the documentary evidence necessary for
just decision of the trial. (Para 16, 17 and
34)
B. Criminal Law - Criminal Procedure
Code,1973 - Section 397(2) & 482 -
Interlocutory order - Maintainability of
application u/s 482 - Nature of order
passed u/s 311 Cr.P.C. - Held, order
summoning
or
refusing
to
summon
witnesses under Section 311 Cr.P.C is an
interlocutory order within the meaning of
Sec. 397 (2) Cr.P.C as it does not decide
any substantive right of litigating parties.
Hence no revision lies against such order -
When Section 397 (2) Cr.P.C prohibits
interference in respect of the interlocutory
orders, Section 482 Cr.P.C cannot be
availed to achieve the same objective.
(Para 36 and 37)
Application dismissed. (E-1)
List of Cases cited:-
1. Goal Plast Ltd. Vs Chico Urmila 'D' Souza;
2003 Crl.J. 1723
2. M/s Mohan Lal Khem Chandra Vs Pawan
Kumar Mohanka; 1996 Cr.L.J. 2927
3. Raja Kumarian Vs Subharama Naydu; A.I.R
2005 SC 109
4. N. Rangachari Vs B.S.N.L. Ltd.; A.I.R 2007 SC
1682
5. M.M.T.C Vs Medchal Chemicals & Pharma (P)
Ltd.; A.I.R 2002 SC 182
6. R.B. Mithani Vs St. of Mah.; A.I.R. 1971, SC
1630
7. St. of Har. Vs Ram Prasad; 2006 Cr.L.J. 1001
8. Nira Vs St. of Orissa; 2008 Crl. L.R. 1315
9. St. of Sikkim Vs Thukchuk Lachungpa; 2005
Crl. L.R 201
10. Rama Paswan Vs St. of Jhharkhand; 2007
Crl. L.J. 2750
11. Ismail Baba Saheb Vs A.A. Hulagen; 1997
Crl.L.J. 1804
12. Raju Vs St. of Madhya Pradesh; 2002,
Crl.L.J. 2367
13. Raj Deo Sharma Vs St. of Bihar; A.I.R 1999
SC 3524
14. Mohan Lal Sham Ji Soni Vs U.O.I.; 1991
Cr.L.J. 1521
15. Rajendra Prasad Vs Narcotic Cell Delhi, A.I.R
1999
16. Jamat Raj Vs St. of Mah.; A.I.R 1968 SC 178
17. Popat Lal & Ors. Vs St. of Mah.; 2002
Crl.L.J. 794
18. P. Chagu Lal Daga Vs M. Sanjay Show 2004;
S.C.C (Criminal) 183
19. Chhanda Debi Varma Vs Keshab Banik;
2005, Crl.L.J. 2503
20. Ajai Dikshit Vs St. of U.P. & anr.; 2011 (75)
ACC 388 (All-LB)
21. Sethuraman Vs Rajamanickam; 2009 (65)
ACC 607 (SC)
22. Hanuman Ram Vs St. of Raj. & others; 2009
(64) ACC 895 (SC)
23. Asif Hussain Vs St. of U.P.; 2007 (57) ACC
1036 (All-D.B)
260 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Girish Kumar Suneja Vs C.B.I. A.I.R, 2017;
Supreme Court 3620
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Dheeraj Singh (Bohra),
learned counsel for the applicant, learned
A.G.A for the State and perused the material
available on record.

2. The applicant-accused in Criminal
Complaint under Section 138 N.I. Act has
preferred this application under Section 482
Cr.P.C to quash the order dated 22.10.2021,
passed by Sri Vijay Kumar Agrawal,
Presiding Officer of Additional Court No. 03,
Gautam Budh Nagar, by which he allowed
the complainant's application under Section
311 Cr.P.C and permitted the production of
three documents on record and summoned
the Post Office's Clerk and Advocate Sri Braj
Bhushan Pal for deposition.

3. In brief, facts of the case are that M/s.
Tanya Buildcon (India), Private Limited, has
filed a complaint under Sections 138 & 141
N.I. Act, against M/s. Gujrat Isotop Pvt. Ltd.
and its Director/M.D Miss. Priti Pandya
before the C.J.M, Gautam Budh Nagar,
bearing No. 16712 of 2010, which was
contested by the opposite parties.

4. In this complaint case, evidence were
recorded and documents were already
produced by the complainant. Relevant parts
of the order-sheets of the lower court has
been produced by the applicant, which
discloses that on 14.04.2021, the case was
fixed for argument and the Court below heard
the oral argument and also directed to
produce the written argument.

5. The order-sheet dated 22.09.2021
discloses that the counsel for the accused
raised some preliminary objections regarding
maintainability of the complaint that the
alleged legal notice in not signed by the
concerned advocate and that no receipt
regarding
authorization
for
filing
the
complaint by the Director Sri Deepak
Agrawal has been produced. He also argued
that Sri Deepak Agrawal has produced his
statement under Section 200 Cr.P.C on
affidavit, which is not duly verified.

6. In view of these initial objections of
the opposition, the court fixed a date for their
disposal. Thereafter an Application U/s 311
Cr.P.C was moved to summon the Official of
the Postal Department and the aforesaid
counsel, who had sent the notice. Thereafter
the order in question was passed after taking
up the objections of the opposition and
hearing the parties.

7. The applicant has taken mainly this
ground to quash the impugned order that the
legal notice filed with the affidavit dated
09.08.2010 was not signed by the advocate,
who had dispatched the same to the applicant
and that the Postal Receipt was invisible to
ascertain the post office and year. The
resolution/memorandum
authorizing
Mr.
Deepak Agrawal for filing the complaint was
not filed as primary document with the
complaint. According to him the lower court
perused the record and found that the list of
documents does not contain the receipt of
dispatch of legal notice and resolution of the
Company and the legal notice does not
contain the signature of the advocate.
According to the applicant thus by accepting
the application u/s 311 Cr.P.C, the court has
provided an opportunity to fill up the lacuna
to the complainant, hence the present
application.

8. At the very outset it would be
proper to state something about the
Negotiable Instruments Act, 1881.
8 All. Miss Priti Pandya Vs. State of U.P. & Anr.
261

9. The Negotiable Instruments Act,
1881 was amended with effect from
01.04.1989 and the maximum term of
punishment of one year has been enhanced
up to two years and the period of notice of
dishonor of cheque has been reduced from
30 days to a period of 15 days with effect
from 06th February, 2003. The scheme of
N.I. Act primarily to provide an additional
criminal remedy over and above the civil
remedy available under the Act.

10. Section 138 of the N.I. Act creates
a new offence when a cheque is returned by
the Bank unpaid. Section 139 casts a
rebuttable presumption that a holder of the
cheque has received, the same towards
discharge of liability. The Section 140
precludes the drawer from the pleadings
with that he had no reason to believe that
the cheque would be dishonoured. As per
Section 142, the offence has been made
cognizable
on
the
basis
of
written
complaint. Section 142 (B) prescribes a
period of one month for filing a complaint
from the date when the cause of action
arises. In the case of Goal Plast Limited Vs.
Chico Urmila 'D' Souza 2003 Crl.J. 1723,
Hon'ble Supreme Court has held that the
new
enactment
of
1988
has
been
introduced with intention to discourage
people for not honouring their commitment
by way of payment of cheque. To form an
offence under Section 138 of N.I. Act,
mens-rea is not essential ingredient of a
criminal offence. The partners of the firm
can be prosecuted without impleading firm
as an accused. He can be convicted if he
was In-charge of a responsible Firm for the
conduct of the business of the firm. The
Manager of the Company in whose favour
the cheque was issued can file complaint
for dishonour of the cheque M/s Mohan
Lal Khem Chandra Vs. Pawan Kumar
Mohanka 1996 Cr.L.J. 2927.

11. Under Section 138 (B), the payee
is under the statutory obligation to make a
demand by giving a notice.

12. In the case of Raja Kumarian Vs.
Subharama Naydu A.I.R 2005 Supreme
Court 109, it is held that once the notice is
dispatched, the part of the complainant is
over and next depends what the sendee
does. Once the notice is dispatched by
registered post on correct address of the
sendee, the presumption would arise in
favour of the senders that the notice was
duly served, unless the presumption is
rebutted by the necessary evidence.

13. In the case of N. Rangachari Vs.
B.S.N.L. Limited A.I.R 2007 S.C. 1682, it
is held that if named Directors were InCharge and responsible to the Company for
the conduct of the business, complaint
against the Directors is maintainable and
can not be quashed. The Director of the
Company by courageously liable for acts of
the Company.

14. The Hon'ble the Supreme Court in
the case of M.M.T.C Vs. Medchal
Chemicals & Pharma (P) Ltd. A.I.R 2002
SC 182, held that the complaint filed in the
name and on behalf of the Company by its
employee without necessary authorization
is maintainable. Want of authorization may
be rectified even at a subsequent stage.

15. In this matter the complaint was
filed in the year 2010 and since then the
complaint is pending for disposal. Since the
whole order-sheet has not been produced
before the Court, therefore, this Court can
not say as to which party is responsible for
delaying the complaint, but it is very
strange that when after taking all evidence,
the
learned
lower
trial
court
was
proceedings for deciding the case after
262 INDIAN LAW REPORTS ALLAHABAD SERIES
hearing the oral argument and taking
written arguments of the parties, why the
preliminary objections were raised by the
applicant-accused. The learned lower trial
court was competent enough to decide the
objections raised by the applicant-accused
finally with the judgment of the case. It is
also strange that why these preliminary
objections were not raised at the initial
stage of the case by the applicant-accused.
This Court is of the opinion that the learned
trial court, should have decided the case on
merit taking all the objections of the
accused.

16. There is no doubt that in the
cases relating to Section 138 N.I. Act, the
Court can entertain an Application under
Section 311 Cr.P.C at any state of the
inquiry, trial or other proceedings suomoto or on the application of either party
if
the
recall
of
the
witness
for
examination-in-chief, cross examination
or re-examination or summoning of new
witness
and
taking
additional
documentary evidence appears to be
essential for the just decision of the case.
When
the
complainant
moved
the
Application U/s 311 Cr.P.C, the same
was allowed partly and the impugned
order was passed and the learned Trial
Court permitted for production of all the
three
documents
on
record
and
summoned
Post
Office's
Clerk
and
Advocate Sri Braj Bhushan Pal to adduce
the evidence. The applicant-accused has
only one objection that the learned trial
court has not exercised the jurisdiction
properly, but by allowing the application,
it has provided an opportunity to the
complainant to fill-up the lacuna of the
case. This Court is of the opinion that all
the three documents were necessary to be
summoned and kept on record and if it
was not clarified that from which Post
Office,
the
notice
was
sent
then
summoning of the Post Office's Clerk and
summoning of the aforesaid Advocate Sri
Braj Bhushan Pal, who is alleged to be
sender of the notice appears to be
essential for the just decision of the case.

17. The second part of the Section
311 of C.P.C, casts duty upon the Court
to summon, examine and recall and reexamine any such person, if his evidence,
appears to be essential for the just
decision of the case.

18. In the Case of R.B. Mithani Vs.
State
of
Maharashtra,
A.I.R.
1971,
Supreme Court 1630, the Hon'ble Supreme
Court has held that additional evidence
summoned must be necessary not because,
it would be impossible to pronounce
judgement but also because there would be
failure of justice without it. Though the
power must be exercised sparingly and
only in suitable case but once such action is
justified, there is no restriction on the kinds
of evidence, which may be received. It may
be formal or substantial in nature.

19. In the Case of State of Haryana
Vs. Ram Prasad 2006 Cr.L.J. 1001, the
Punjab & Haryana High Court held that
where the examination and re-examination
of the witness is essential for the just
decision of the case, it is obligatory of the
Court to summon such a witness.

20. The Orissa High Court in the Case
of Nira Vs. State of Orissa, 2008 Crl. L.R.
1315, held that this power can be exercised
by the Court even at the state of preparation
of the judgment.

21. In the Case of State of Sikkim Vs.
Thukchuk Lachungpa 2005, Crl. L.R 201,
the Sikkim High Court has held that this
8 All. Miss Priti Pandya Vs. State of U.P. & Anr.
263
power can be exercised even though at the
earlier stage of the trial, the Court has
rejected such application.

22. In the Case of Rama Paswan Vs.
State of Jhharkhand, 2007 Crl. L.J. 2750,
the Hon'ble Supreme Court has held that it
would not be improper, the exercise of the
power of the Court to summon a witness
under the Section merely because the
evidence
supports
the
case
of
the
prosecution and not that of the accused.
The Section is a general Section, which
applies to all proceedings, inquiries and
trials under the Court and empowers the
Magistrate to issue summons to any
witness at any stage of such proceedings,
trial or inquiry.

23. In the Case of Ismail Baba Saheb
Vs. A.A. Hulagen, 1997 Crl.L.J. 1804, the
Karnataka High Court, has held that where
the production of the document and the
summoning of the witness is necessary for
the just decision of the case, the rejection of
the
application
on
the
ground
that
document has not been produced from
proper custody is not proper.

24. In the Case of Raju Vs. State of
Madhya Pradesh, 2002, Crl.L.J. 2367, the
Madhya Pradesh High Court has held that
where the documents filed with the Chargesheet have not been proved, important
documents relevant for the just decision of
the trial have not been filed, the Court
would direct their production exercising of
power under Section 311 Cr.P.C. and
Section 165 of Evidence Act.

25. In the Case of Raj Deo Sharma
Vs. State of Bihar, A.I.R 1999 Supreme
Court 3524, the Hon'ble Supreme Court
has held that once it is found that the
evidence is essential for the just decision of
the case, the witness can be recalled at any
time
before
pronouncement
of
the
judgment, the time factor would not come
in the way.

26. In the case of Mohan Lal Sham
Ji Soni Vs. Union of India, 1991 Cr.L.J.
1521, Supreme Court, the Hon'ble Supreme
Court has held that an inquiry or trial in a
criminal proceedings comes to an end or
reaches its finality when the order or
judgment is pronounced and until then the
Court has power to use this Section.

27. In the Case of Rajendra Prasad
Vs. Narcotic Cell Delhi, A.I.R 1999,
Supreme Court 2292, the Hon'ble Supreme
Court has held that it can not be laid down
as legal preposition that the Court can not
exercise the power of re-summoning any
witness, if once that power was exercised,
nor can the power be whittled down merely
on the ground that the prosecution
discovered latches only when the defence
highlighted them during final arguments.
The power of the Court is plenary to
summon or even re-call any witness at any
stage of the case, if the Court considers it
necessary for a just decision.

28. As already said that there are two
parts of the Section 311, in this context, the
Hon'ble Supreme Court in the case of
Jamat Raj Vs. State of Maharashtra,
A.I.R 1968, Supreme Court 178 has held
that the user of "May" in first part "Shall"
in second shows, that when the first part is
discretionary, second part is obligatory.

29. In the Case of Mohan Lal
(Supra) the Hon'ble Supreme Court has
also held that the power to summon and
examine any witness may be exercised at
the stage, opportunity however is to be
given to the parties to rebut the evidence.
264 INDIAN LAW REPORTS ALLAHABAD SERIES

30. In this case, the accused-appellant
has certainly power to cross-examine the
witness summoned and file documentary
evidence in rebuttal, which have been
permitted by the Court to keep on record.

31. The applicant-accused is of the
view that by allowing the application under
Section 311 Cr.P.C and by summoning the
witnesses and keeping the documentary
evidence on record, the accused-applicant
have been prejudiced. In this respect a
judgement of Bombay High Court is
relevant, where in the Case of Popat Lal &
Ors. Vs. State of Maharashtra, 2002,
Crl.L.J. 794, the Bombay High Court has
held that Section 311 Cr.P.C. is not granted
only for the benefit of the accused and it
will not be improper exercise of power of
the Court, if the Court summons a witness
only because the evidence will support the
prosecution case and not the defense case.

32. In the Case of P. Chagu Lal Daga
Vs.
M.
Sanjay
Show
2004
S.C.C
(Criminal) 183, the Hon'ble Supreme Court
has held that in a case relating to N.I. Act
that when the prosecution wanted to
produce the Postal Receipt to prove the
service of notice on the accused in a
proceeding under Section 138 of the N.I.
Act, the Trial Court can admit it even after
close of the case.

33. In the case of Chhanda Debi
Varma Vs.Keshab Banik 2005, Crl.L.J.
2503, the Guwahati High Court has held in
a case relating to dishonour of cheque,
wherein the complainant placed two letters
on record issued to him by the accused
after the examination of the prosecution
witness, the letters were necessary to meet
the
ends
of
justice,
therefore,
the
prosecution witnesses were called for to
prove those letters.

34. On the basis of the above
discussions and in view of the judgments of
Hon'ble Supreme Court and other High
Courts, this Court is of the opinion that in
this case exercise of powers by the learned
Trial Court under Section 311, for passing
impugned order and for summoning the
witnesses and to permit the complainant to
produce the documentary evidences as
noted above, was necessary for just
decision of the trial and for the ends of
justice, therefore, so far as the merit of the
case (Application U/s 482 Cr.P.C) is
concerned, it has no merit.

35. It is also a question to be decided
by the Court as to whether the impugned
order can be challenged under Section 482
Cr.P.C or not.

36. In the following cases it is held
that Order summoning or refusing to
summon witnesses under Section 311
Cr.P.C is an interlocutory order within the
meaning of Sec. 397 (2) Cr.P.C as it does
not decide any substantive right of
litigating parties. Hence no revision lies
against such order. See:

(I). Ajai Dikshit Vs. State of U.P.
& another, 2011 (75) ACC 388 (All-LB).

(II).
Sethuraman
Vs.
Rajamanickam, 2009 (65) ACC 607 (SC).

(III). Hanuman Ram Vs. State
of Rajasthan & others, 2009 (64) ACC 895
(SC).

(IV.) Asif Hussain Vs. State of
U.P., 2007 (57) ACC 1036 (All-D.B)."

37. The Hon'ble Supreme Court in the
Case of Girish Kumar Suneja Vs. C.B.I.
A.I.R, 2017, Supreme Court 3620 (three
Hon'ble Judges' Bench), has held that
when the Section 397 (2) Cr.P.C prohibits
interference in respect of the interlocutory
8 All. Siddharth Kappor Vs. State of U.P. & Anr.
265
orders, Section 482 Cr.P.C cannot be
availed to achieve the same objective.

38. On the basis of above discussions,
this Court is of the considered view that the
present petition / application u/s 482 Cr.P.C
filed the accused-applicant against the
impugned order is devoid of merits and is
not maintainable. Hence, the present
Application U/s 482 Cr.P.C is accordingly
dismissed.
----------
(2022) 8 ILRA 265
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Crl. Misc. Anticipatory Bail Application No. 4040
of 2022
(U/s 438 Cr.P.C.)

Siddharth Kappor ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vikrant Rana, Sri Anoop Trivedi (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Vinay Sharma

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 82 & 83 -If
any person has filed any anticipatory bail
application before the learned court below
showing his reasonable apprehension of
arrest in a case where the allegations of
the
prosecution
prima
facie
do
not
corroborate with the material available on
record
and
his/her
anticipatory
bail
application is rejected, he or she has got
a right to approach the High Court for
such
anticipatory
bail
and
if
the
interregnum period any proclamation u/S
82 and 83 Cr.P.C. is issued it may be
considered as a circumventive exercise
being taken by the Investigating Officer.
No one can be restrained from taking
legal course strictly in accordance with
law and such legal right may not be
prevented even if any process is adopted
by any authority which is not permissible
under the law.

B. Indian Penal Code, 1860 - Section
306- Before holding an accused guilty of
an offence u/S 306 IPC the Court must
scrupulously
examine
the
facts
and
circumstances of the case and also assess
the evidence adduced before it in order to
find
out
whether
the
cruelty
and
harassment meted out to the victim had
left the victim with no other alternative
but to put an end to her life. It is also to
be borne in mind that in cases of alleged
abetment of suicide there must be proof
of, direct or indirect, acts of incitement to
the commission of suicide. Merely on the
allegation of harassment without there
being any positive action proximate to the
time of occurrence on the part of the
accused which led or compelled the
person to commit suicide, conviction in
terms
of
Section
306
IPC
is
not
sustainable.

Application allowed. (E-12)

List of Cases cited:-

1. Amalendu Pal @ Jhantu Vs St. of W.B.

2. Chitresh Kumar Chopra Vs State (Govt. of
NCT of Delhi) dercided on 10.08.2009 in
Criminal Appeal No. 1473 of 2009
(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Heard Shri Anoop Trivedi, learned
Senior Counsel assisted by Shri Vikrant
Rana, learned counsel for the applicant, the