# of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar

- **Citation:** (2019) 2 ILRA 562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Application u/s 482 No. 38644 of 2016
- **Bench:** Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/of-court-apex-court-in-dhanlakshmi-v-r-prasana-kumar-44835
- **Pages:** 54

## Headnote

A. Cr.P.C., 1973 - Section 362 -Ex Parte
order finally deciding- Resulting in serious
prejudice to the Opposite Party No. 2-
Jurisdiction of the Court to entertain recall
application- Replied affirmatively. (Para
37,48,49,68,69,79, 83 & 84)

## Text

_Characters 0–39,746 of 184,116. This is a partial read: ask again with offset=39746 for what follows._

562 INDIAN LAW REPORTS ALLAHABAD SERIES

Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
Dhanlakshmi
v.
R.Prasana
Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC 494
has propounded "To prevent abuse of the
process of the Court, High Court in exercise
of its inherent powers under section 482
could quash the proceedings but there
would be justification for interference only
when the complaint did not disclose any
offence or was frivolous vexatious or
oppressive" as well as in State of Bihar v.
Murad Ali Khan, (1989) Cr LJ 1005:
AIR 1989 SC 1, Apex Court propounded
"In exercising jurisdiction under Section
482 High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not".

6. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded
as above.

7. In view of what has been
discussed above, there is no ground for
interference in the proceeding, as prayed
for by this Application, under Section 482
of Cr.P.C., thereby, this Application
merits
its
dismissal
and
it
stands
dismissed, accordingly.
----------

(2019)10ILR A 562

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Application u/s 482 No. 38644 of 2016

Jaspreet Singh ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sikandar B. Kochar

Counsel for the Opposite Parties:
A.G.A., Sri Anoop Trivedi, Sri Abhinav
Gaur, Sri Vibhu Rai

A. Cr.P.C., 1973 - Section 362 -Ex Parte
order finally deciding- Resulting in serious
prejudice to the Opposite Party No. 2-
Jurisdiction of the Court to entertain recall
application- Replied affirmatively. (Para
37,48,49,68,69,79, 83 & 84)

1. Following questions arise for determination
in this recall application:

I. Whether Complaint Case No.1716
of 2016 (Nirmal Singh Garewal Vs. Nitin
Jaiswal and others) under Sections 307, 436,
392, 380, 504 and 506 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, arising out of Case
Crime No. 2675 of 2012, under Sections 307,
452, 427, 504, 506, 380, 426 and 392 I.P.C.,
P.S. Kotwali Bareilly, District-Bareilly and S.T.
No. 123 of 2013 (State Vs. Nirmal Singh
Garewal and others) under Sections 452 and
307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly,
arising out of Case Crime No. 2568 of 2012
under Sections 452, 307 I.P.C. P.S. Kotwali
Bareilly, District-Bareilly are cross-cases.

HELD :- Question No.1 is answered in
negative that two case crime numbers, are not
cross cases, but they relate to different
incidents which occurred at different places
and at different points of time.

II. Whether the ex-parte order dated
15.12.2016 passed by this Court in exercise of
its jurisdiction under Section 482 Cr.P.C. has
caused serious prejudice to opposite party
no.2, Nitin Jaiswal and can be recalled at the
behest of opposite party no.2, who admittedly
was not heard at the time of passing of order
dated 15.12.2016.

III. Whether the bar of Section 362
Cr.P.C. will come into play regarding recall of
2 All. Jaspreet Singh Vs State of U.P. & Anr.
563
ex-parte order dated 15.12.2016. (Considering
question nos. 2 and 3 together)

Held: - The application came up for admission
on 15.12.2016 and this Court allowed the
application on same day i.e. 15.12.2016. The
opposite party No.2 was not represented by any
counsel nor notices were issued to opposite party
No.2 before finally deciding the application. As
such, order dated 15.12.2016 is ex-parte against
opposite party No.2. Rule of audi alterem partem
requires that opportunity of hearing should be
afforded before an order is passed on judicial
side.
By
seeking
recall
of
order
dated
15.12.2016, opposite party No.2 is not seeking
review of order dated 15.12.2016 and therefore
bar contained in section 362 Cr.P.C. will not come
in way. Consequently, order dated 15.12.2016, is
liable to be recalled at the behest of opposite
party No.2, who admittedly was not afforded any
notice or opportunity of hearing before order
dated 15.12.2016 was passed.

IV. Whether in view of the orders
dated 29.08.2017, 31.01.2018 and 15.12.2016
passed by Apex Court, this Court has
jurisdiction to entertain the recall application
filed by opposite party no.2, Nitin Jaiswal.

Held: - As to whether order dated 15.12.2016
can or cannot be recalled in view of
subsequent orders passed by Apex Court- The
case in hand is covered by conclusion no.4
contained in Paragraph 27 of the judgement of
Khoday Distilers Ltd. (Now known as Khoday
India
Limited
and
others)
Vs.
Sri
Mahadeshwara Sahakara Sakkare Karkhane
Ltd. Kollegal (Under Liquidation) Represented
by the Liquidator reported in 2019 (4) SCC
376, - Consequently, the principle of merger
will not apply. As such, I am of the view that
there is no legal impediment in recalling the
order dated 15.12.2016.

2. The present recall application is allowed.
Order dated 15.12.2016 passed by this Court
is hereby recalled. The application shall now
stand restored. The same shall be listed for
hearing on merits.

Recall Application allowed (E-3)

Case law relied upon/discussed: -
1. Vishnu Agarwal Vs St. of U.P.& anr. (2011)
14 SCC 813
2. Jawahar Lal @ Jawahar Lal JalaJ Vs St. of
U.P. (2015) 91 ACC 128
3. Punjab Vs Devendar Pal Singh Bhullar & ors.
(2011) 14 SCC 770
4. Makkapati Nagaswara Sastri Vs S.S.
Satyanarayan (1981) 1 SCC 62
5. Habu Vs St. of Raj. AIR 1987 RAJ 83
6. Rajnarayan & ors. Vs St. of U.P. A.I.R. 1959
ALL 315
7. Khoday Distilers Ltd. (Now known as
Khoday India Ltd. & ors.) Vs Sri Mahadeshwara
Sahakara Sakkare Karkhane Ltd. Kollegal
(Under
Liquidation)
Represented
by
the
Liquidator 1995 SCC (1) 574
8. Smt. Suraj Devi Vs Pyare Lal 1981 SCC (Cri)
188
9. Mohd. Zakir Vs Sabana & ors. (2018) 15
SCC 316
10. Atul Shukla Vs St. of M.P.& anr. 2019 (6)
SCJ 246
11. Shivpoojan Upadhyay & anr. Vs St. of U.P.&
anr. 2019 (3) ALJ 407
(Delivered by Hon'ble Rajeev Misra, J.)

Ref: Criminal Misc. Recall Application
No. 4345 of 2017

1. This application under Section
482 Cr.P.C. has been filed by applicantJaspreet Singh Garewal (a co-accused)
challenging the order dated 02.12.2016
passed by Additional Sessions Judge,
Court No.1, Bareilly in Sessions Trial
No.123 of 2013 (State Vs. Nirmal Singh
Garewal and others) under Sections 452
and 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly arising out of Case
Crime No. 2568 of 2012 under Sections
564 INDIAN LAW REPORTS ALLAHABAD SERIES
452, 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly,
whereby
application
(Paper No. 309 Kha) filed by accused
under Section 309 Cr.P.C. has been
rejected.

2. It transpires from record that
during pendency of S.T. No. 123 of 2013
(State Vs. Nirmal Singh Garewal and 2
others) one of the accused Nirmal Singh
Garewal, the applicant herein, filed an
application under Section 309 Cr.P.C.
(Paper No. 309 Kha) praying therein that
S.T. No. 123 of 2013 (State Vs. Nirmal
Singh Garewal and others) under Sections
452 and 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly arising out of Case
Crime No. 2568 of 2012 under Sections
452, 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly
be
tried
alongwith
Complaint Case No. 1716 of 2016
(Nirmal Singh Garewal Vs. Nitin Jaiswal
and others) under Sections 307, 436, 392,
380, 504 and 506 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, arising out of
Case Crime No. 2675 of 2012 under
Sections 307, 452, 427, 504, 506, 380,
426 and 392 I.P.C., P.S. Kotwali Bareilly,
District-Bareilly, as both the cases are
cross cases.

3. The aforesaid application was
opposed by opposite party no.2 herein
namely Nitin Jaiswal. Accordingly, an
objection (Paper No. 323 Kha) was filed
by opposite party no.2 opposing the
aforesaid application.

4. The Additional Sessions Judge
Court No.1, Bareilly, vide order dated
02.12.2016
rejected
the
aforesaid
application (Paper No. 309 Kha) filed by
accused-applicant Nirmal Singh Garewal.
While rejecting the application (Paper No.
309 Kha), Court below has held that
evidence has been recorded and trial is at
the
stage
of
Section
313
Cr.P.C.
Secondly, it would not be appropriate to
try Complaint Case No. 1716 of 2016
(Nirmal Singh Garewal Vs. Nitin Jaiswal
and others) under Sections 307, 436, 392,
380, 504 and 506 I.P.C., arising out of
Case Crime No. 2675 of 2012, under
Sections 307, 452, 427, 504, 506, 380,
426 and 392 I.P.C. alongwith the present
Sessions Trial as according to accusedapplicant Case Crime No. 2675 of 2012 is
pending
consideration
before
the
Magistrate. In the aforesaid complaint
case the accused have not yet appeared,
nor the concerned Magistrate has passed
any such order on the basis of which, it
could be said that Case Crime No. 2675
of 2012 is cross version of Case Crime
No. 2568 of 2012. Moreover, the
complaint
case
has
not
yet
been
committed to the Court of Sessions.
Further, without perusal of record of
Complaint Case No. 1716 of 2016
(Nirmal Singh Garewal Vs. Nitin Jaiswal
and others) under Sections 307, 436, 392,
380, 504 and 506 I.P.C., it cannot be said
that above mentioned complaint case is a
cross case. Lastly, the record of the
complaint case cannot be summoned as
the Hon'ble High Court has directed for
early disposal of the Sessions Trial itself
and if possible on day to day basis. For
ready reference order dated 23.07.2015
which has been referred to in the order
dated 02.12.2016 is reproduced hereinunder:.

"Heard learned counsel for the
applicant and the learned AGA and have
been taken through the record.

By means of the present application
under section 482 Cr.P.C. the applicant
has invoked inherent jurisdiction of this
Court with a prayer to direct the court
2 All. Jaspreet Singh Vs State of U.P. & Anr.
565
concerned to conclude the Sessions Trial
No 123 of 2013 arising out of Case Crime
No. 2568 of 2012 under section 452/307
IPC, Police Station Kotwali District
Bareilly pending in the court of learned
Addl. District & Sessions Judge, Court
No.1 Bareilly.

It is submitted by the learned counsel
for the applicant that the applicant lodged
the first information report against the
opposite party no.2 and his sons under
sections 452/307 IPC. The investigating
officer after conducting the investigation
submitted
charge
sheet
dated
30.11.2012.The opposite party no.2 filed
Criminal Misc. Bail Application No.
17956 of 2013 (Nirmal Singh Versus State
of U.P.) before another Bench of this
Court . The Hon'ble Single Judge was
pleased to release the opposite party no.2
on bail vide order dated 25.7.2013
stipulating certain conditions and also
directing the trial court to decide the case
expeditously. The opposite party no.2
after being released on bail, has adopted
subterfuge of stalling and dilating the
trial. The trial is proceeding at snail's
pace and till date, the opposite party no.2
has not allowed the evidence of the
doctors to be completed and the cross
examination is going on by the opposite
party no.2 since last 7 months so as to
elongate the proceedings. The witnesses
have also not been cross-examined
whereby the trial is being obstructed.
There is specific direction of this Court
that the trial may be concluded speedily
avoiding undue delay. The applicant is
getting constant threats by the opposite
party no.2 and his comrades. There is
imminent danger of his life and property
due to hanging of trial hence the court
below may be directed to conclude the
trial within stipulated period as granted
by this Hon'ble Court. Learned counsel
for the applicant has relied upon the
decision of this Court dated 25.11.2013
passed in Special Leave to Appeal (Crl)
No. 24066 of 22013 (Mohd. Rashid Vs.
State of U.P.) wherein Hon'ble Apex
Court held the trial court should strictly
comply with the direction issued by High
Court and take effective steps to ensure
that the trial be conducted on day to day
basis and the presence of the witnesses be
secured by adopting, if necessary coercive
means. The Administrative Judge of the
District concerned should monitor the
progress of trial proceeding in order to
ensure that the trial court does not defy
the orders issued by High Court with
impunity.

Learned AGA did not oppose the
contention of learned counsel for the
applicant and submitted that speedy trial
is the quintessence of the code which
cannot be withheld years together on
flimsy grounds.

Having
considered
the
rival
submission advanced by the learned
counsel for the parties, there are serious
consequences
where
the
trial
is
unnecessarily delayed. Speedy trial is a
right of every person in public interest
and serves the social requirement of the
present day, therefore, it is provided that
the court below shall make earnest
endeavour to conclude the aforesaid trial
as expeditiously as possible preferably on
day to day basis within six months from
the date of production of a certified copy
of this order.

This application is disposed of as
above. "

Aforesaid order dated 23.7.2015 was
subsequently corrected, vide order dated
7.8.2015. It was now provided that Court
below shall endeavor to conclude S.T.
No. 123 of 2013 (State Vs. Nirmal Singh)
566 INDIAN LAW REPORTS ALLAHABAD SERIES
within a period of two months. For ready
reference,
order
dated
7.8.2015
is
reproduced herein below:

"Criminal
Misc.
(Correction)
Application No. 253536 of 2015 is
allowed.

Necessary correction has been made
in the original order.

Order dated 23.7.2015 will stand
corrected as follows:

In the 6th line of fifth paragraph six
months should be read as two months.

Office is directed to correct the
certified copy of the aforesaid order, if
already issued to the learned counsel for
the applicant as per Rule of the court. "

On aforesaid findings, Court below
rejected the application (Paper No. 309
Kha) filed by accused-applicant, vide
order dated 02.12.2016.

5. Feeling aggrieved by order dated
02.12.2016 passed by Additional Sessions
Judge, Court No. 1, Bareilly, rejecting the
application (Paper No. 309 Kha) filed by
accused-applicant,
he
has
now
approached this Court by filing present
application under Section 482 Cr.P.C.

6.

Present
Criminal
Misc.
Application came up for admission on
15.12.2016 and same was disposed of
finally by this Court on the same day,
vide order dated 15.12.2016, which is
quoted herein under:-

"Supplementary affidavit filed today,
the same is taken on record.

Heard learned counsel for the
applicant and learned A.G.A.

The present application has been
filed with a prayer to quash the order
dated 2.12.2016 passed by the Additional
Sessions Judge, Court No. 1 Bareilly in
Sessions Trial No. 123 of 2013 (State Vs.
Nirmal Singh Garewal and others)
arising out of Case Crime No. 2568 of
2012, under sections 452, 307 IPC, Police
Station Kotwali Bareilly, District Bareilly
whereby the application of the applicant
filed under section 309 Cr.P.C. has been
rejected.

Learned counsel for the applicant
contended that civil dispute with regard to
the property is pending between applicant
and O.P. No. 2 and the O.P. No. 2 is
trying to illegally took the possession of
the property in question, on account of
which the incident took place. Admittedly,
cross version were lodged by both the
sides.

It is contended that initially O.P. No.
2 initiated the proceeding of the incident
which took place on 21.10.2012 against
the applicant, his father and his brother
under sections 452, 307 IPC in Case
Crime No. 2568 of 2012. It is contended
that on the same day applicant went for
lodging the first information report but
same was not lodged by the police, then
application was moved under section
156(3) Cr.P.C. on 22.10.2012 which was
allowed, pursuant to which a FIR was
lodged by the police against O.P. No. 2
and five others under sections 307, 452,
427, 504, 506, 380, 436, 392 IPC in Case
Crime No. 2675 of 2012. It is further
contended that Investigating Officer of
Case Crime No. 2675 of 2012 of Sessions
Trial No. 123 of 2013 filed report on
19.12.2012 wherein it was mentioned that
it was a cross version. It is next contended
that applicant's father filed a protest
petition, which was treated as a complaint
case and after the statement recorded
under sections 200 and 202 Cr.P.C.
opposite party No. 2 and others were
summoned by the Magistrate vide order
2 All. Jaspreet Singh Vs State of U.P. & Anr.
567
dated 5.9.2016 under sections 143, 456
and 427 IPC in Complaint Case No. 1716
of 2016. It is contended that in spite of
having knowledge of the same, the
opposite party No. 2 and 5 others did not
appear before the court concerned till
date with the sole intention that the case
against the applicant may proceed and
the cross version of complaint case No.
1716 of 2016 may remain pending. It is
contended that the Sessions Trial No. 123
of 2013 is proceeded on day to day basis
because of the direction given by this
Court vide order dated 24.10.2016 passed
in Crl. Misc. Application U/s 482 Cr.P.C.
No. 27370 of 2016 to be concluded the the
trial if possible within two months on day
to day basis.

Learned counsel for the applicant
further contended that opposite party No.
2 did not bring this fact to the notice of
the Court that opposite party No. 2 and
others have already been summoned in
Complaint Case No. 1716 of 2016. It is
further contended that application under
section 323 Cr.P.C. was filed before the
Additional C.J.M., Court No. 2, Bareilly
for committing the case to the court of
sessions where Sessions Trial No. 123 of
2013 is proceedings and both the
admitted cross case be heard and decided
in view of the law laid down by this Court
as well as by the Apex Court. Learned
Magistrate vide order dated 19.11.2016
rejected the aforesaid application on
account of the fact that accused persons
had not appeared, therefore, no order
could be passed. Copy of the aforesaid
order has been filed as Annexure-10 to
the
accompanying
affidavit.
It
is
contended that as there is no dispute with
regard to the fact that Sessions Trial No.
123 of 2013 and Complaint Case No.
1716 of 2016 are cross cases, therefore,
an application was moved under section
309(2)(a) Cr.P.C. for adjournment of the
proceedings till the complaint case is
committed to the Court of sessions which
application has been rejected by the order
impugned. Learned counsel has cited the
judgement of Sudhir Vs. State of M.P.
2001 SCC (Crl.) 387 and relied upon the
paragraphs No. 8,9,10 and 11 of the
aforesaid judgment indicating that the
Apex Court has held that if there are
cross cases, the same shall be disposed of
by the same Court by pronouncing
judgements on the same day. Paragraphs
No. 8,9,10 and 11 are quoted below:

8. It is a salutary practice, when two
criminal cases relate to the same incident,
they are tried and disposed of by the same
court by pronouncing judgments on the
same day. Such two different versions of
the same incident resulting in two
criminal cases are compendiously called :
case and counter-case" by some High
Courts and 'cross-cases" by some other
High Courts. Way back in the nineteen
hunded and twenties a Division Bench of
the Madras High Court (Waller and
Cronish,
JJ.)
made
a
suggestion
(Goriparthi Krishtamma, IN re that 'a
case and counter-case arising out of the
same affairs should always, if practicable,
be tried by the same Court; and each
party would represent themselves as
having been the innocent victims of the
aggressions of the others:

9. Close to its heels Jackson, J.,
made
an
exhortation
to
the
then
legislature to provide a mechanism as a
statutory provision for trial or both cases
by the same court (Vide Krishna Pannadi
Vs. Emperor). The learned Judge said
thus:

"There is o clear law as regards the
procedure in counter-cases, a defect
which the legislature ought to remedy. It
is a generally recognized rule that such
568 INDIAN LAW REPORTS ALLAHABAD SERIES
cases should be tried in quick succession
by the same Judge, who should not
pronounce judgement till the hearing of
both cases is finished."

10. We are unable to understand why
the legislature is still parrying to
incorporate such a salubrious practice as
a statutory requirement in the Code. The
practical
reasons
for
adopting
a
procedure that such cross-cases shall be
tried by the same court, can be
summarised thus: (1) it staves off the
danger of an accused being convicted
before his whole case is before the court.
(2) It deters conflicting judgments being
delivered upon similar facts; (3) In reality
the case and the counter-case are, to all
intents
and
purposes,
different
or
conflicting versions of one incident.

11. In fact, many High Courts have
reiterated the need to follow the said
practice as a necessary legal requirement
for
preventing
conflicting
decisions
regarding one incident. This Court has
given its approval to the said practice in
Nathi LalV. State of U.P. The procedure
to be followed in such a situation has
been succinctly delineated in the said
decision and it can be extracted here:
(SCC pp. 145-46, para 2)

"2. We think that the fair procedure
to adopt in a matter like the present where
there are cross-cases, is to direct that the
same learned Judge must try both the
cross-cases one after the other. After the
recording of evidence in one case is
completed, he must hear the arguments
but he must reserve the judgment.
Thereafter he must proceed to hear the
cross-case and after recording all the
evidence he must hear the arguments but
reserve the judgment in that case. The
same learned Judge must thereafter
dispose of the matters by two separate
judgments. In deciding each of the cases,
he can rely only on the evidence recorded
in that particular case. The evidence
recorded in the cross-case can not be
looked into. Nor can the judge be
influenced by whatever is argued in the
cross-case. Each case must be decided on
the basis of the evidence which has been
placed on record in that particular case
without being influenced in any manner
by the evidnece or arguments urged in the
cross case. But both the judgments must
be pronounced by the same learned Judge
one after the other."

It is contended by learned A.G.A.
that it is not disputed that that both the
cases being Complaint Case No. 1716 of
2016 and Sessions Trial No. 123 of 2013
are cross cases.

In view of the above, this matter
requires re-consideration. Accordingly
the order dated 2.12.2016 passed by
Additional Sessions Judge,Court No. 1
Bareilly in Sessions Trial No. 123 of 2013
is set aside and matter is remitted back to
the court concerned for reconsideration
afresh, in accordance with law as well as
the observations made above within a
period of three week from the date a
certified copy of this order is produced
before him. Learned counsel for the
applicant undertakes to file the certified
copy of this order before the court
concerned within two weeks from today.

Accordingly,
this
application
is
disposed of. It is clarified that the
proceeding of sessions trial No. 123 of
2013 may go on but final orders may not
be passed."

7. Feeling aggrieved by order dated
15.12.2016, opposite party no.2, Nitin
Jaiswal, who admittedly was not heard at
the time of passing of order dated
15.12.2016, has filed Criminal Misc.
2 All. Jaspreet Singh Vs State of U.P. & Anr.
569
Recall Application No. 4345 of 2017
seeking recall of order dated 15.12.2016.

8. During pendency of above
mentioned recall application, Criminal
Misc. Application No.25681 of 2018
(Nitin Jaiswal Vs. State of U.P. and
another) was filed challenging the order
dated 25.01.2018 passed by Additional
District Judge, Court No.1, Bareilly, in
Complaint Case No. 1716 of 2016
(Nirmal Singh Garewal Vs. Nitin Jaiswal
and others), under Sections 307, 436, 392,
380, 504 and 506 I.P.C., P.S. Kotwali
Bareily,
District-Bareilly,
whereby
application (Paper No. 70 Kha) filed by
Nirmal Singh Garewal-Complainant was
allowed
and
also
the
order
dated
23.06.2018 passed by Additional District
Judge Ist, Bareilly, by which application
No. 71 Kha-1 filed by Nitin Jaiswal and
others, has been rejected. Vide order
dated 23.06.2018, Court below held that
proceedings of Complaint Case No. 1716
of 2018 ( Nirmal Singh Garewal Vs. Nitin
Jaiswal and others) under Sections 307,
436, 392, 380, 504 and 506 I.P.C., P.S.
Kotwali Bareily, District-Bareilly, shall
proceed in accordance with Chapter 18
Cr.P.C.,
whereas
vide
order
dated
23.06.2018,
Court
Below
fixed
25.06.2018 as the next date for framing of
charges under Sections 147, 458, 427
I.P.C. against Nitin Jaiswal, Adesh
Jaiswal, Sachin Jaiswal, Raju Jaiswal.
Annu Jaiswal and Manish Goel.

9. Criminal Misc. Application U/S
482 Cr.P.C. No. 25681 of 2018 (Nitin
Jaiswal Vs. State of U.P. and another)
came up for admission on 03.08.2018 and
this Court passed the following order:

"Heard Mr. Anoop Trivedi, learned
counsel for the applicant in length and
detail, the learned A.G.A. for the State
and the Mr. Sikandar Kochar, Advocate,
who has put in appearance on behalf of
the opposite party No. 2 by filing his
vakalatnama in Court today, which is
taken on record.

This application under section 482
Cr. P. C. has been filed with the following
prayer:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court may very
kindly be pleased to allow this application
and to quash the orders dated 25.01.2018
passed by the Additional District Judge,
Bareilly in Complaint Case no. 1716 of
2016 whereby the application no. 70 kha
of the opposite party no. 2 has been
allowed and the order dated 23.6.2018
passed by the Additional District Judge,
First, Bareilly in Case No. 1716 of 2016
(Nirmal Singh Garewal Versus Nitin
Jaiswal and other) under Sections 456,
427 and 143 I.P.C. and by which the
application no. 71 (kha) (1) has been
rejected."

Mr. Anoop Trivedi, learned counsel
for the applicant submits that the
applicant had filed an application (Paper
No. 71 kha), whereby it was prayed that
entire
consequential
proceedings
subsequent to the order dated 8.2.2016
are null and void. The said prayer was
made on the ground that since second
final report had already been rejected,
vide order dated 6.4.2015, therefore, by
rejecting the said final report by means of
the order dated 8.2.2106 and directing
that the protest petition shall be treated as
complaint and consequently proceeding
thereafter in the matter as a complaint
case
has
rendered
the
entire
consequential proceedings illegal. He
thus submits that subsequent to the order
dated 6.4.2015 passed by the Magistrate,
whereby the second final report was
570 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected and the protest petition was
allowed with a direction for further
investigation,
the
case
was
further
investigated by the police and thethird
final report dated 20.8.2015 has been
submitted, which is pending consideration
before the Magistrate.

On the aforesaid factual premise, the
legal submission urged by the learned
counsel for the applicant is that in the
absence of an order rejecting the final
report no direction can be issued by the
Magistrate that the protest petition shall
be treated as a complaint and accordingly
to be proceeded with as a complaint case.

It is further submitted that the Court
below while passing the impugned order
dated 23.6.2018, whereby the application
(Paper No. 71 Kha) had been rejected has
travelled beyond the controversy and has
also acted in excess of jurisdiction vested
in it at that stage by observing that in
view of the material on record, charges
under sections 147, 458, 427 are also
liable to be framed and for that purpose
fixed the matter for 25.6.2018.

Sri Anoop Trivedi, learned counsel
for the applicant at this stage submits that
the Court below has no jurisdiction to
pass the impugned order when the real
issue was not answered one way or the
other way.

It was next contended that by means
of the impugned order dated 25.1.2018,
the
Court
below
has
allowed
the
application (Paper No. 70 Kha) filed by
the opposite party No. 2. From the record,
it appears that the said application was
filed by the opposite party No. 2 with a
prayer that he be provided a Government
counsel as the said case is going on in the
Court of Sessions. The applicant his
objection dated 21.12.2017. However, the
Court allowed the same.

From the perusal of this bulky
record, it transpires that one of the issues
engaging the attention of the Court is
whether the transfer of the complaint case
to the Court of Sessions in exercise of
power under section 409 Cr. P. C. is valid
or not.

Learned counsel appearing on behalf
of the opposite party No. 2 submits that
the issue has become final and it cannot
be open at this stage.

Perusal
of
the
order
dated
06.11.2017 passed by the Apex Court
clearly shows that this question as to
whether
the
Sessions
Judge
was
empowered to transfer the complaint case
under section 409 Cr. P. C. has been left
open. It is admitted to the parties that
pursuant to the order passed by the Apex
Court, the said question has not been
decided till date. It further transpires that
the consolidation of the cases i.e. the
State case and Complaint case has taken
place in the light of the observations
contained in the order dated 15.12.2016
passed by His Lordship Hon'ble Mr.
Justice R.D. Khare. A perusal of the said
order will go to show that in the
proceedings in which the aforesaid order
has been passed, a concession was made
by the learned A.G.A. that both the cases
are cross cases and on the basis of the
said concession, the Court below passed
the order dated 15.12.2016. Learned
counsel for the applicant submitted that
the
applicant
has
filed
a
recall
application seeking recall of the order
dated 15.12.2016 which is pending.

In the light of the aforesaid facts, it
is desirable that the recall application
filed by the applicant in Criminal Misc.
Application No. 38644 of 2016 be also
heard along with the present application.

Put up this case along with the
record of Criminal Misc. Application No.
2 All. Jaspreet Singh Vs State of U.P. & Anr.
571
38644 of 2016 as unlisted case on
10.08.2018.

Till then, the Court below is
restrained from proceeding with the
above mentioned complaint case pending
before the Court of Sessions."

10.

However,
order
dated
03.08.2018 was corrected by this Court,
vide order 26.07.2019. It was now
provided that in place of Section 409
Cr.P.C. occurring in 4th line of third last
paragraph Section 408 Cr.P.C. shall be
read.

11. Subsequently, Office submitted
the report dated 23.05.2019 and on the
basis of office report dated 23.05.2019,
Hon'ble the Senior Judge, vide order
dated 24.05.2019 nominated Criminal
Misc. Application No. 25681 of 2018
(Nitin Jaiswal Vs. State of U.P. and
another), Criminal Misc. Application No.
38644 of 2016 (Jaspreet Singh Garewal
Vs. State of U.P. and another) and
Criminal Misc. Application No.11932 of
2014 (Nirmal Singh Garewal Vs. State of
U.P. and another) before this Court.
Accordingly,
the
above
mentioned
Criminal Misc. Applications have come
up before this Bench.

12. It may be noted here that against
interim order dated 03.08.2018 passed in
Criminal Misc. Application No.25681 of
2018 (Nitin Jaiswal Vs. State of U.P. and
another) which has been quoted hereinabove, S.L.P. (Criminal) No.16536 of
2019 (Nirmal Singh Garewal Vs. State of
U.P. and another) was filed before the
Apex Court. The same was disposed of
finally, vide order dated 10.05.2019,
which is reproduced herein-under.

" Delay condoned.

These petitions by special leave have
been filed against the interim orders
passed by the High Court in an
application under Section 482 Cr.P.C.

Learned counsel for the petitioner
has submitted that the matter is already
fixed for hearing on 17.05.2019. The
application being pending, we are of the
view that the High Court shall take steps
for early disposal of the matter looking
into the nature of issues which have been
raised in the Application under Section
482 Cr.P.C. Learned counsel for the
petitioner has relied upon an order of this
Court dated 06.11.2017 passed in SLP
(Crl.) No. 8152 of 2017.

The special leave petitions are
disposed of accordingly."

13. I have heard Mr. Anoop Trivedi,
learned Senior Counsel assisted by Mr.
Abhinav Gaur, learned counsel for
opposite party no.2 Nitin Jaiswal, who has
filed the recall application seeking recall
of order dated 15.12.2016, Mr. Sikandar
B. Kochar, learned counsel for applicant
and learned A.G.A. for the State.

14. Mr. Anoop Trivedi, learned
Senior Counsel appearing for opposite
party
no.2,
who
has
filed
recall
application seeking recall of order dated
15.12.2016 submits that recall application
has been filed primarily on the grounds
that opposite party no.2 was not heard
before order dated 15.12.2016 was
passed. Admittedly, opposite party no.2
was not represented through counsel nor
any notice was issued to opposite party
no.2 affording him an opportunity of
hearing before order dated 15.12.2016
was passed. Further Criminal Misc.
Application No. 482 Cr.P.C. came up for
admission on 15.12.2016 and this Court
allowed the application on same day. As
572 INDIAN LAW REPORTS ALLAHABAD SERIES
such order dated 15.12.2016 is ex-parte
against opposite party no.2. which is
contrary to the Rules of natural justice
enshrined in the principle Audi alteram
partem.

15. The order dated 15.12.2016
passed by this Court has caused serious
prejudice to opposite party no.2 as on
account of aforesaid order disposal of S.T.
No. 123 of 2013 (State Vs. Nirmal Singh
Garewal and others), under Sections 452
and 307 I.P.C., P.S.-Kotwali Bareilly,
District-Bareilly, arising out Case Crime
No. 2568 of 2012 under Sections 452, 307
I.P.C. P.S. Kotwali Bareilly, DistrictBareilly, has come to a halt. It is
submitted that this Court while deciding
bail application No. 17956 of 2013
(Nirmal Singh Garewal Vs. State of U.P),
vide order dated 25.7.2013, directed trial
Court to expeditiously decide S.T. No.
123 of 2013 ( State Vs. Nirmal Singh
Garewal and another) under Sections 452
and 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly, arising out of case
Crime No. 2568 of 2012, under Sections
452, 307 I.P.C. P.S. Kotwali Bareilly,
District-Bareilly.

16. It is then submitted that as no
progress was being made in aforesaid
Sessions Trial as proceedings were being
prolonged by filing applications by
accused, three criminal misc. applications
under section 482 Cr.P.C. came to be filed
before this Court. Application U/s 482
No. 3811 of 2014 (Nirmal Singh Garewal
Vs. State of U.P. and Another) was filed
challenging the order dated 18.1.2014,
whereby
trial
court
summoned
the
witnesses and documents other than those
mentioned
in
the
charge
sheet;
Application U/s 482 No. 6775 of 2014
(Nirmal Singh Garewal Vs. State of U.P.
and Another) was filed challenging order
dated 18.1.2014, whereby Court below
declined prayer made by accused for
furnishing
copies
of
statements
of
witnesses to them. Application U/s 482
No. 6095 of 2014 (Nitin Jaiswal Vs. State
of U.P. and Another) was filed by
complainant for expeditious disposal of
case. All the above mentioned criminal
misc. applications came to be decided
vide order dated 9.4.2014. Criminal Misc.
Application No. 3811 of 2014 (Nirmal
Singh Garewal Vs. State of U.P. and
Another) and Criminal Misc. Application
No. 6775 of 2014 (Nirmal Singh Garewal
Vs. State of U.P. and Another) were
dismissed,
whereas
Criminal
Misc.
Application No. 6095 of 2014 (Nitin
Jaiswal Vs. State of U.P. and Another)
was disposed of with a direction to
proceed
with
trial
expeditiously
irrespective
of
pendency
of
any
application or petition before this Court
except where specific order of stay has
been passed.

17. Then reference was made to the
order dated 23.7.2015 as corrected vide
order dated 7.8.2015, which have been
quoted
in
paragraph
4
of
present
judgement. Lastly reference was made to
order
dated
24.10.2016,
passed
in
Criminal Misc. Application No. 27370 of
2016 (Nitin Jaiswal Vs. State of U.P. and
Others) and Criminal Misc. Application
No. 27511 of 2016 (Taranpreet Garewal
@ Dimpal Vs. State of U.P. and Another).
Criminal Misc. Application No. 27370 of
2016 (Nitin Jaiswal Vs. State of U.P. and
Others)
was
allowed
with
further
direction to trial Court to proceed with
trial on day to day basis and conclude
same, within two months from date of
production of certified copy of order,
whereas Criminal Misc. Application No.
2 All. Jaspreet Singh Vs State of U.P. & Anr.
573
27511 of 2016 (Taranpreet Garewal @
Dimpal Vs. State of U.P. and Another)
was dismissed. For ready reference, order
dated 24.10.2016 is reproduced herein
below:

"The application No.27370 of 2016
has been moved by the first informant for
issuing appropriate direction to the trial
court for concluding the trial of Sessions
Trial No.123 of 2013 (State of U.P. vs.
Nirmal Singh Garewal and others)
pending in the Court of Additional
District and Sessions Judge Court No.1
Bareilly within a time frame of one month
from the date of receiving the certified
copy of the order passed by this court.

and

The Application No. 27511 of 2016
has been moved for quashing the order
dated 27.08.2016 passed by Additional
Sessions Judge Court No.1 Bareilly in
Sessions Trial No 123 of 2013 (State Vs.
Nirmal Singh Garewal and others)
rejecting the application Under Section
311 Cr.P.C. moved by the accused
applicant.

The learned counsel for the first
informant Sri Anoop Triwedi counsel for
applicant in Misc. Application No. 27370
of 2016 filed Vakalatnama on behalf of
opposite party No.2 in Misc. application
No.27511 of 2016 moved by accused
Taran Preet Garewal and similarly the
learned counsel for the accused applicant,
Sri Sikandar B. Kochar in Application
No.27511 of 2016 filed Vakalatnama on
the behalf of the accused opposite party
No.2 Nirmal Singh Garewal in Misc.
Application No. 27370 of 2016.

The two applications under Section
482 Cr.P.C., one by first informant and
the other by accused, have been moved in
respect of and arise out of the one and the
same Sessions Trial No. 123 of 2013
pending before Additional Sessions Judge
Court No.1, Bareilly, were heard together
on request of the learned counsel for the
parties and are being disposed off by
common order.

The
learned
counsel
for
the
applicant-accused in Application No.
27511 of 2016 contended that the
opposite party No.2 has stated in FI.R.
that "due to indiscriminate firing by the
applicant and two other co-accused
persons, Sachin Jaiswal the brother of
first informant as well as Gaurav,
Bhagwan
Das
and
Veer
Bahadur
sustained gun shot injuries"; that the
prosecution did not produce all the
witnesses
and
got
discharged
the
witnesses Gaurav, Bhagwan Das and
Veer Bahadur on the application of first
informant dated 04.06.2013; that the
evidence of above witnesses is necessary
for bringing truth before this Court and
so the applicant moved an application
under Section 311 Cr.P.C. for summoning
them, which has wrongly been rejected by
the trial court vide impugned order dated
27.08.2016; that the above order of trial
court/ the Additional Sessions Judge
Court No.1 Bareilly is bad on the facts of
law and is labile to be quashed.

Per contra, learned counsel for Nitin
Jaiswal the first informant/ opposite party
No.2 contended that the applicant had
moved the application under Section 311
Cr.P.C.