# Nanhey Singh @ Dinesh Singh v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 882
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-22
- **Bench:** Dharnidhar Jha, Pankaj Naqvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhey-singh-dinesh-singh-v-state-of-u-p-and-ors-42638
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 372-
Appeal
against
acquittal-appeal
by
stranger-neither informant nor appeared
as
witness-merely
on
ground
the
investigation officer not examined-none
of witness could identify the criminalsnone of witness tern hostile-apart from
merit delay of 2400 days-even though no
limitation for filing appeal u/s 372
provided-but
limitation
of
60
days
prescribed for appeal under section 378adopted-accordingly-appeal
dismissed
with cost of rs. 10,000/- recoverable as
fine under procedure of Cr.P.C.

Held: Para-5
We refer to Article 114 of the Limitation
Act, which refers to Section 417 (2) of
the Cr P C, that, the Cr P C of 1988 and
that is equivalent to present Section 378
Cr P C. In that case the period is
prescribed as 90 days, but the provisions
under Section 372 Cr P C being a new
one, which was brought out by virtue of
Amending Act No. 5 of 2009 and on
consideration of the very Article 114 of
the Limitation Act, we find that it speaks
of an appeal from an order of acquittal
and thereafter, makes categorization of
different
appeals
under
different
headings. We have to assume that the
Legislature at the time of the framing
Article 114 of the Limitation Act in
absence of the previous proviso to
Section 372 Cr P C, had nothing before it
to mention that particular provision as
one of such occasions on which the law
of limitation shall be considered for
computing the period of limitation. But,
the provision speaks of appeals against
acquittal and we are of the opinion that
a period of 90 days should be applicable
also to appeals under Section 372
proviso Cr P C.

Case Law discussed:
1983 AIR 826; AIR 1993 SC 892;

## Text

882 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
hence it can very well be said that defendant
works for gain there. Accordingly, suit for
accounting and in respect of movable
property of the firm is quite maintainable at
Lakhimpur Khiri.

11. However, the suit in respect of
immovable property of the firm is not at all
maintainable at Lakhimpur Khiri. At this
juncture, reference may be made to the
Supreme
Court
authority
reported
in
Sandeep Polymers Private Limited V/S
Bajaj Auto Limited, AIR 2007 SC 2656.
The said case related to damages for breach
of contract without claiming any right or
interest in immovable property. There also
registered office of defendant was situate at a
place different from the place where suit was
filed. Supreme Court held that the suit would
be maintainable only in respect of that relief
which was based upon a cause of action
arising at the place where the suit was filed.
In the end the plaintiff was permitted to
amend the plaint and to seek the relief with
respect to purchase orders at Pune (suit had
been filed at Nagpur) at Pune.

12. As far as proviso to Section 16,
C.P.C. is concerned, it is not applicable to
the facts of the case. Under the said
proviso a suit to obtain relief respecting
for wrong to immovable property can be
instituted where defendant resides or
works for gain where the relief sought can
be entirely obtained through his personal
obedience. In the instant case, there is no
possibility that relief can be obtained
through
personal
obedience
of
the
defendants'
respecting
immovable
property. In this regard, reference may be
made to AIR 2007 SC 1636.

13. Learned counsel for plaintiff
applicant has cited the Supreme Court
authority
reported
in
New
Moga
Transport Corporation Of India vs.
United India Insurance Co. Ltd., AIR
2004 SC 2154 holding that ''Where two
courts or more have under the C.P.C.
jurisdiction to try a suit or proceedings
agreement between the parties that the
dispute between them shall be tried in any
one of such courts is not contrary to
public policy and in no way contravenes
Section 28 of the Contract Act. (Para-14)"

14. Accordingly, it is directed that
plaintiff applicant within two months from
today shall file an application seeking
amendment in the plaint clarifying as to
whether relief claimed is in respect of
movable property alone or in respect of
immovable
property
also.
If
through
amendment in the plaint plaintiff clarifies
that the relief is only in respect of movable
property and accounting then suit shall be
treated to be maintainable at Lakhimpur
Khiri and shall be decided on merit.
However, if through amendment it is
clarified that relief is claimed in respect of
immovable property also then impugned
order shall stand and plaint shall be returned
(after allowing the amendment) to be filed
before the competent court at Pilibhit. If
within two months, amendment application
is not filed, then impugned order shall stand.

15. Revision is disposed of
accordingly.
---------
APPELLATE JURISDICTION
CRIMINAL- SIDE
DATED: ALLAHABAD 22.07.2013

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE PANKAJ NAQVI, J.

Criminal Misc. Application Defective u/s
372 Cr.P.C. (Leave to appeal) No. 83 of
2013
2 All] Nanhey Singh @ Dinesh Singh Vs. State of U.P. & Ors.
883
Nanhey Singh @ Dinesh Singh..Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ashutosh

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 372-
Appeal
against
acquittal-appeal
by
stranger-neither informant nor appeared
as
witness-merely
on
ground
the
investigation officer not examined-none
of witness could identify the criminalsnone of witness tern hostile-apart from
merit delay of 2400 days-even though no
limitation for filing appeal u/s 372
provided-but
limitation
of
60
days
prescribed for appeal under section 378adopted-accordingly-appeal
dismissed
with cost of rs. 10,000/- recoverable as
fine under procedure of Cr.P.C.

Held: Para-5
We refer to Article 114 of the Limitation
Act, which refers to Section 417 (2) of
the Cr P C, that, the Cr P C of 1988 and
that is equivalent to present Section 378
Cr P C. In that case the period is
prescribed as 90 days, but the provisions
under Section 372 Cr P C being a new
one, which was brought out by virtue of
Amending Act No. 5 of 2009 and on
consideration of the very Article 114 of
the Limitation Act, we find that it speaks
of an appeal from an order of acquittal
and thereafter, makes categorization of
different
appeals
under
different
headings. We have to assume that the
Legislature at the time of the framing
Article 114 of the Limitation Act in
absence of the previous proviso to
Section 372 Cr P C, had nothing before it
to mention that particular provision as
one of such occasions on which the law
of limitation shall be considered for
computing the period of limitation. But,
the provision speaks of appeals against
acquittal and we are of the opinion that
a period of 90 days should be applicable
also to appeals under Section 372
proviso Cr P C.

Case Law discussed:
1983 AIR 826; AIR 1993 SC 892;

(Delivered by Hon'ble Dharnidhar Jha, J.)

1. We have heard Sri Ashutosh,
Advocate appearing on behalf of the
appellant Nanhey Singh @ Dinesh Singh,
challenging the correctness of judgment
of acquittal dated 11.10.2006, passed by
learned Additional Sessions Judge, Court
No. 3, Bijnor in Sessions Trials No. 356
of 2005 & 160 of 2006, by which
respondents Kuldip Singh and Nagendra
Pal were acquitted of offence under
Section 302 IPC, who is neither the
informant of the case nor was examined
as a witness. He has made a statement in
his affidavit that he was the cousin
brother of the deceased Jabbar Singh, who
was the son of informant Babu Ram,
examined as PW-2 in the court below.

2. The "party interested" or "a
victim" could have a locus standi of
preferring an appeal and we for that
reason, while referring to the provisions
of Section 372 Cr P C, recall the
judgment of the Supreme Court in
Baghwant Singh v. Commissioner of
Police, Delhi, reported in 1983 AIR 826
as also Janta Dal v. H S Chowdhary
and others, reported in AIR 1993 SC
892. There is no doubt in our mind that
the appellant is a busy-bee, he is an intermeddler, who has pecked his nose
unnecessarily to waste the court's time.
This is one aspect of the case as regards
the locus standi of a person to prefer an
appeal under Section 372 Cr P C.

3. The other aspect which deters us
from applying our jurisdiction under
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Section 372 Cr P C, is the Law of
Limitation, which has intervened by
virtue of 2400 reported days of delay in
filing the present appeal. Section 372 Cr P
C does not provide for any period in
which the appeal under that particular
provision should be filed, though the
other provision under Section 378 Cr P C,
which speaks of filing of an appeal
against
acquittal
in
three
different
categories of cases does so. The first
category could be of such cases, which
have been investigated into by Delhi
Special Police Establishment Act, i.e., by
the Central Bureau of Investigation, the
other category of cases are those which
could have been investigated into by the
State Police through its investigating wing
and the third category of cases would be
of those appeals, which could be arising
out of judgments of acquittal based on
trials, the prosecution in which had been
lodged by virtue of filing a complaint
petition as defined under Section 2(d) of
the Cr P C, i.e., by the complainant. In
case, a complaint has been filed by a
public servant, the period of limitation, set
down by Section 378 (5) Cr P C, is of 6
months, whereas in other cases the appeal
has to be preferred and filed within 60
days.

4. We have already noted that
provisions of Section 378 Cr P C is
related to special categories of cases on
account of very categorization made by
that provision. Thus, we have no
hesitation in saying that the provision of
limitations, which are prescribed by
Section 378 Cr P C, could not be attracted
to an appeal, which could have been filed
under Section 372 Cr P C by virtue of the
Proviso, which was added by the
legislature through the Amending Act No.
5 of 2009. Then, the simple question
could be as to how could the courts be
ascertaining as to what should be the
limitation within which an appeal should
be preferred by any person, who is
entitled by virtue of proviso to Section
372 Cr P C to bring an appeal before any
appellate court. In our opinion, the
provision of Section 378 Cr P C, as we
have already noted, is special in nature,
which is attracted only in cases of
appeals, which are likely to be preferred
or which have been filed in three different
categories of cases, which we have
already indicated, may be a case different
from that which is spoken of by Section
378 as in that case even if the right of
appeal has been created in favour of the
complainant, he has to exercise that right
within a particular period by virtue of
Section 378 (5) Cr P C, which situation is
not postulated by proviso to Section 372
Cr P C, as such, in our opinion, the
general provisions of the Limitation Act
have to be consulted for ascertaining the
period, which could be attracted for filing
an appeal under Section 372 proviso Cr P
C.

5. We refer to Article 114 of the
Limitation Act, which refers to Section
417 (2) of the Cr P C, that, the Cr P C of
1988 and that is equivalent to present
Section 378 Cr P C. In that case the
period is prescribed as 90 days, but the
provisions under Section 372 Cr P C
being a new one, which was brought out
by virtue of Amending Act No. 5 of 2009
and on consideration of the very Article
114 of the Limitation Act, we find that it
speaks of an appeal from an order of
acquittal
and
thereafter,
makes
categorization of different appeals under
different headings. We have to assume
that the Legislature at the time of the
framing Article 114 of the Limitation Act
2 All] Nanhey Singh @ Dinesh Singh Vs. State of U.P. & Ors.
885
in absence of the previous proviso to
Section 372 Cr P C, had nothing before it
to mention that particular provision as one
of such occasions on which the law of
limitation
shall
be
considered
for
computing the period of limitation. But,
the provision speaks of appeals against
acquittal and we are of the opinion that a
period of 90 days should be applicable
also to appeals under Section 372 proviso
Cr P C.

6. The delay is of 2400 days. We
have already noted that the appellant, who
has filed the petition under Section 5 of
the Limitation Act, is a rank outsider, who
does not have any locus standi to file the
appeal. This is one circumstance and
disability by which the appeal could not
be maintained.

7. In spite of the above, we have
considered the merit of the case.

8. The case related to the murder of
Jabbar Singh, the son of PW-2 Babu Ram.
The informant was not an eye witness, as
appears from the story put down by him
in the written report as he very
categorically stated that he was informed
about the incident telephonically by PW-4
Manpal. The story was that while taking
his meals with PW-1 Hitesh, and PW-4
Manpal, the deceased was shot at and
killed by the respondents in the dhaba,
owned by PW-5. Neither PW-1, who was
said to be an eye witness nor PW-4, who
was another eye witness, supported the
prosecution story, rather they stated that
they were not taking their meals in the
hotel owned by PW-5 and had not seen
the murder of Jabbar Singh being
committed in the said hotel. The hotel
owner PW-5 Adesh Kumar also came to
state that the murder, though, had been
committed in his hotel, but he could not
identify the criminals and as regards the
two respondents, he was very categorical
that the two had not committed the crime.
We have already noted that Babu Ram,
was not an eye witness. In view of the
above evidence, there was no possibility
for any court to have come to a
conclusion that anyone could be said to
have committed the offence.

9. Learned counsel appearing for the
appellant was submitting to us that only
because the Investigating Officer had not
been examined, there was a good ground
for him to file the present appeal.

10. We regret to note if there was no
evidence about the complicity of any of
the accused indicating that they could
have committed the offence and if the
witnesses were turning hostile by failing
even to identify the accused persons, it
would have been an exercise in futility
that the Investigation Officer should have
been summoned. Mere non-examination
of the Investigating Officer does not
appear giving rise to any cause for anyone
to question the judgment of acquittal in
the light of the evidence, we have just
noticed.

11. The judgment, passed by the
learned trial Judge was the only result
which could have been obtained under the
facts and circumstances of the case. The
appeal appears not only devoid of merit,
but a frivolous exercise, which has
consumed the precious time of the court
and, as such, we impose a cost of
Rs.10,000/- to be realized from the
appellant Nanhey Singh @ Dinesh Singh,
s/o Late Chotey Lal, r/o Village Harthala,
near Jatowala Mandir, police station Civil
Lines, District Moradabad, by procedure
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
as set down for realization of fine under
the Cr P C.

12. The appeal fails and is dismissed
at the admission stage itself.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Review Petition Defective No. 96 of 2009

District Basic Education Officer ...Petitioner
Versus
Chandra Kant Tripathi & Ors...Respondents

Counsel for the Petitioner:
Sri Jyotinjay Verma

Counsel for the Respondents:
Sri K.M. Shukla, Sri P.K. Khare

Constitution of India, Art. 226- Review
Application-petition decided with direction
of reinstatement and salary-based upon
concealment of material facts and fraudreview held-maintainable.

Held: Para-18
I have no hesitation to hold that this
Court was persuaded to pass the order
dated
6.2.2009
by
suppression
and
concealment of material facts as noted
above. Though the order dated 6.2.2009
is innocuously worded and in fact it is a
conditional
order,
however,
for
the
reason that the said order is causing
miscarriage of justice on account of the
fact that the departmental authorities
have already held the initial appointment
of respondent no.1 to be forged, in my
considered
view,
the
order
dated
6.2.2009 deserves to be reviewed, albeit
without giving any finding as to the
genuineness
of
the
appointment
of
respondent no. 1.
Case Law discussed:
[2004 (22) LCD 115]

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Shri Jyotinjay Verma,
learned counsel for review applicant and
Shri K.M. Shukla and Shri P.K. Khare,
learned counsel appearing for respondent
no. 1.

2. By means of the instant review
petition, the final judgment and order
dated 06.02.2009 passed by this Court has
been sought to be reviewed on the ground
inter alia that the order dated 6.2.2009
passed by this Court has resulted in
miscarriage of justice for the reason that
this Court was persuaded to pass the order
on
account
of
suppression
and
concealment of material facts by the
respondent no. 1.

3. Opposing the plea taken by
learned counsel appearing for review
applicant, Shri P.K. Khare, learned
counsel
for
respondent
no.
1
has
vehemently submitted that the order under
review dated 6.2.2009 is an innocuous
order and the same does not suffer from
any legal infirmity so as to call for its
review. He has further stated that the
order under review is a conditional order,
according to which, the respondents in the
writ petition were directed to allow
joining of the petitioner therein and to pay
him salary only in case the petitioner was
reinstated. He has further stated that in
case according to the review applicant,
respondent no. 1 was not reinstated then
the order dated 6.2.2009 ought to have
been interpreted by the review applicant
accordingly. He further states that the
order, being conditional in nature, does