# No. 69/10 (Rajesh Tiwari v. State of

- **Citation:** (2011) 1 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-06
- **Bench:** Raj Mani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-69-10-rajesh-tiwari-v-state-of-41801
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section-482Revision-against dismissal of complaintwithout impleading the accused-held-bad
in law-order passed by Revisional Court
not sustainable direction issued to decide
revision after hearing to accused also.

Held: Para 8

The impugned order passed by the
learned Additional Sessions Judge in the
absence of the petitioner was bad in the
eyes of law and and liable to be quashed
and the matter requires to be remanded
back for afresh decision in accordance
with law after directing the revisionist to
implead the petitioner as party and
affording
him
proper
opportunity
of
hearing.
Case law discussed:
Raghu Raj Singh Rousha Vs Shivam Sundaram
Promoters Private Limited and another in
(2009) 2 Supreme Court Cases 363

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
not for any other purpose. In paragraph 19
of the judgment it has been recorded that
the lease is of open land and not of any
permanent constructions which could, in
any manner, be a building or an
accommodation for any purpose. In a
second appeal the evidence cannot be reappreciated to record a finding of fact by
substituting the view taken by the Court
below. The Court has considered the lease
deed and recorded its finding of fact. Such
finding of fact cannot be held to be
perverse in any manner.

19. The submission of Sri Sharma
that this is a month to month lease is
clearly mis-conceived and against the
record. The lease was for four years on
payment of monthly rent.

20. In the present case, admittedly the
lease was given for running a saw mill
over the land with a contemplation that tin
shed could be erected. No part of the
building was given on rent. When the lease
was not month to month but it was for a
period of four years, the notice of six
months was a valid notice. It was a
protected lease. The second part of section
106(1) of Transfer of Property Act was
clearly not applicable in the facts and
circumstances of the present case.

21. The findings given by the first
appellate court cannot be said to suffer
from any error of law. They are findings of
fact based on evidence. No substantial
question of law arises in this appeal. The
appeal is accordingly dismissed.

No order is passed as to costs.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2011

BEFORE
THE HON'BLE RAJ MANI CHAUHAN, J.

U/S 482/378/407 No. - 32 of 2011

Constable 763, Raj Kumar Gupta

 ...Petitioner
Versus
The State of U.P. and another

 ...Respondent

Counsel for the Petitioner:
Singh Vinod Kumar

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section-482Revision-against dismissal of complaintwithout impleading the accused-held-bad
in law-order passed by Revisional Court
not sustainable direction issued to decide
revision after hearing to accused also.

Held: Para 8

The impugned order passed by the
learned Additional Sessions Judge in the
absence of the petitioner was bad in the
eyes of law and and liable to be quashed
and the matter requires to be remanded
back for afresh decision in accordance
with law after directing the revisionist to
implead the petitioner as party and
affording
him
proper
opportunity
of
hearing.
Case law discussed:
Raghu Raj Singh Rousha Vs Shivam Sundaram
Promoters Private Limited and another in
(2009) 2 Supreme Court Cases 363

(Delivered by Hon'ble Raj Mani Chauhan, J.)

1. Heard Sri Vinod Kumar Singh,
learned counsel for the petitioner and Sri
Rajendra Kumar Dwivedi, learned A.G.A
1 All] Constable 763, Raj Kumar Gupta V. The State of U.P. and another
13
for the State as well as perused the
documents available on record.

2. This petition under Section 482
Code of Criminal Procedure (hereinafter
referred to as Code) has been filed by the
petitioners for quashing the order dated
09.8.2010
passed
by
the
learned
Additional Sessions Judge, Court No. 9,
District Faizabad in Criminal Revision
No. 69/10 (Rajesh Tiwari Vs. State of
U.P.) whereby the learned Additional
Sessions Judge has allowed the revision
and set aside the order passed by the
Additional Chief Judicial Magistrate,
IIIrd, Faizabad in Complaint Case No.
56/09 of 2009 and remanded the matter
back to the court below with a direction to
pass afresh order in the light of evidence
available on record. The petitioner has
also prayed for quashing the impugned
summoning order dated 21.8.2010 passed
by the learned Additional Chief Judicial
Magistrate, IV, District Faizabad in
Criminal Complaint Case No. 2810 of 09
(Rajesh Tripathi Vs. Mahraj Dutt and
Others).

3. The only question involved for
consideration before this court is the
legality of the impugned order dated
09.8.2010
passed
by
the
learned
Additional Sessions Judge, Court No. 9,
District Faizabad in Criminal Revision
No. 69/10 (Rajesh Tiwari Vs. State of
U.P.) whereby he has allowed the revision
filed by the opposite party no. 2.
Therefore, with the consent of learned
counsel for the petitioner and learned
Additional Government Advocate this
petition is being disposed of finally
without issuing notice to the Opposite
Party No. 2 to curtail the delay in the
proceeding pending against the accused
before the learned Additional Chief
Judicial Magistrate.

4. From a perusal of the record, it
appears that the opposite party no. 2Rajesh Tiwari filed a complaint against
the accused before the learned Additional
Chief Judicial Magistrate, IIIrd, Faizabad.
The learned Additional Chief Judicial
Magistrate recorded the statement of the
complainant under Section 200 of the
Code and the statement of witnesses
under Section 202 of the Code. He on the
basis of statements of the complainant and
witnesses found that there was no
sufficient ground to proceed against the
accused consequently he vide order dated
08.4.2010 dismissed the complaint under
Section 203 of the Code. The complainant
being aggrieved by the impugned order
passed by the learned Additional Chief
Judicial Magistrate preferred criminal
revision before the Sessions Judge,
Faizabad which was transferred by the
learned Sessions Judge to the learned
Additional Sessions Judge, Court No. 9,
Faizabad for disposal. The complainant
did not implead the petitioner as a party in
the revision. The learned Additional
Sessions Judge after hearing learned
counsel for the revisionist and learned
A.P.O. found that the learned Additional
Chief
Judicial
Magistrate,
had
not
properly gone through the statements of
complainant and witnesses recorded by
him under Section 200 and 202 of the
Code consequently he Vide order dated
09.8.2010 allowed the revision and
remanded back the matter to the court
below for passing afresh order which has
given rise to the present petition.

5. The submission of learned counsel
for the petitioner is that the complainantopposite party no. 2 had not impleaded
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the accused-petitioner as opposite party in
the criminal revision while they were
necessary party to the revision. Learned
counsel submits that after dismissal of the
complaint by the learned Magistrate under
Section 203 of Code, a valuable right had
accrued in favour of the accused. He was
entitled to oppose the criminal revision,
therefore,
he
was
necessary
party.
Learned counsel in support of his
argument has placed reliance on law laid
down by the Hon'ble Apex Court in case
of Raghu Raj Singh Rousha Vs Shivam
Sundaram Promoters Private Limited
and another; in (2009) 2 Supreme Court
Cases 363. Learned counsel argued that
since the complainant did not implead the
accused-petitioner as party in the criminal
revision, therefore, the impugned order
passed by the learned Additional Sessions
Judge in the criminal revision filed by the
opposite party no. 2 is bad in the eyes of
law and is liable to be quashed on this
ground and the matter deserves to be
remanded back to the learned Additional
Sessions Judge to decide the criminal
revision
afresh
after
directing
the
revisionist to implead the petitioner as a
opposite party and after serving the notice
to the petitioner as well as allowing him
proper
opportunity
of
hearing.
Consequently, the impugned summoning
order dated 21.8.2010 passed by the
learned
Additional
Chief
Judicial
Magistrate, IV, Faizabad is also illegal
and liable to be quashed.

6. Sri Rajendra Kumar Dwivedi,
learned A.G.A. although supported the
impugned order passed by the learned
Additional Sessions Judge but fairly
accepts that the complainant without
impleading the petitioner as opposite
party in the criminal revision had filed
criminal revision against the dismissal
order of the complaint passed by the
learned Magistrate under Section 203 of
the Code while the petitioner was a
necessary party to the criminal revision.

7.

I
have
given
thoughtful
consideration to the submissions of
learned counsel for the petitioners and
learned A.G.A.

8. From a perusal of the records, it
appears that the opposite party no. 2complainant had filed the criminal
revision against the dismissal order of his
complaint
passed
by
the
learned
Magistrate before the Sessions Judge,
Faizabad
without
impleading
the
petitioner as opposite party. The criminal
revision was transferred to the learned
Additional Sessions Judge, Court No. 9,
Faizabad for disposal. The learned
Additional Sessions Judge allowed the
revision. After dismissal of the complaint
by the learned Magistrate under Section
203 of the Code, a valuable right had
accrued in favour of the accused. He was
necessary party to the revision who could
oppose the revision and support the
impugned order passed by the learned
Magistrate. In case Raghu Raj Singh
Rousha
Vs
Shivam
Sundaram
Promoters Private Limited and another
(supra) the Hon'ble Apex Court held that
where an application moved by the
complainant under Section 156 (3) of the
Code was dismissed by the learned
Magistrate and the applicant being
aggrieved by the order passed by the
learned Magistrate filed revision before
the Sessions Judge, the accused was
necessary party to the revision as a
valuable right accrued in favour of the
accused to oppose the revision and
support the order passsed by the learned
Magistrate. In view of the law laid down
1 All] Raghuveer Bahadur Sinha V. District Magistrate Faizabad and another
15
by the Hon'ble Apex Court in the case
cited above, the petitioner was a
necessary party to the revision filed by
the complainant against the order passed
by the learned Magistrate under Section
203 of the Code. The impugned order
passed
by
the
learned
Additional
Sessions Judge in the absence of the
petitioner was bad in the eyes of law and
liable to be quashed and the matter
requires to be remanded back for afresh
decision in accordance with law after
directing the revisionist to implead the
petitioner as party and affording him
proper
opportunity
of
hearing.
Consequently, the impugned summoning
order dated 21.8.2010 passed by the
learned
Additional
Chief
Judicial
Magistrate, IV, Faizabad is also liable to
be quashed.

9. The petition is, therefore,
allowed. The impugned order dated
09.8.2010
passed
by
the
learned
Additional Sessions Judge, Court No. 9,
District Faizabad in Criminal Revision
No. 69/10 (Rajesh Tiwari Vs. State of
U.P.) and the impugned summoning
order dated 21.8.2010 passed by the
learned
Additional
Chief
Judicial
Magistrate, IV, Faizabad in Criminal
Complaint Case No. 2810/09 (Rajesh
Tripathi Vs. Mahraj Dutt and Others),
under Sections 323/504/506 IPC, P.S.
Raunahi, District Faizabad are hereby set
aside. The matter is remanded back to
the learned Additional Sessions Judge
with a direction that he shall direct the
revisionist to implead the petitioner as
party in the revision filed by him then he
will dispose of the revision after serving
notice to the petitioner and affording him
proper opportunity of hearing.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VIRENDRA KUMAR DIXIT, J.

Misc. Bench No. 77 of 2011

Raghuveer Bahadur Sinha
 ...Petitioner
Versus
District Magistrate Faizabad and
another

 ...Respondent

Counsel for the Petitioner:
Karunakar Srivastava

Counsel for the Respondent:
C.S.C.

Constitution of India, Art-226-14, 19 (1)
(g),
21-Status
certificate-refusal
on
ground-petitioner residing in house of
ancestor situated over abadi land-in case
of default/or public loss-can not be
recovered-held-illegal-amounts
to
restriction with regard to protection
granted under article 19(1) (g)- it is for
the
corporation,
department
or
establishment
to
provide
necessary
safeguard-and
not
for
the
Distt.
Magistrate-who is bound to give income
certificate-direction to Secretary, issued
necessary guidelines to all the Distt.
Magistrate for future action.

Held: Para 5

The reason assigned for refusal of status
certificate seems to be not justified. Only
because the person is residing in the
village in his ancestral house along with
other family members should not be
deprived
from
status
certificate.
A
person who is member of joint family is
also entitled to enjoy quality, dignity and
privacy of life protected by Article 21 of
the Constitution of India. Non-issuance
of status certificate to a person who is
residing in village may be in ancestral