# Om Prakash Jain & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Criminal Revision No. 4598 of 2009
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-jain-ors-revisionists-v-state-of-u-p-anr-50076
- **Pages:** 3

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section-498-A
,Dowry
prohibition
Act,1961- Section 3/4 , cases where the
fact of death is disputed, caution must
be exercised - If no concrete conclusion
is reached, a separate miscellaneous
case may be registered and authorities
directed to provide evidence - appeal
cannot be left pending just because a
collateral issue or a question of mere
procedural importance has cropped up
which may demand calling for further
evidence and may require inquiry. (Para
- 6)

Case convicting all accused persons for
offences - convicts preferred an appeal - one
of appellants (husband of victim) died - victim
filed an application no. 55-B - stating that her
husband is still alive - forged and fake papers
given from side of appellants - to close case
against him. (Para -3)

HELD:- Appellate court should have instituted
a separate miscellaneous case to determine
the death of one appellant and proceed with
the rest's appeal. If forged paper submitted,
the court can institute an enquiry under
section 340 of Cr.P.C. or file an F.I.R. if fit in
the circumstances. Court directed to separate
case of appellant and inquire into his death,
while the rest of the appellants (revisionists)
will proceed as per law.(Para - 7,8)

Revision disposed of. (E-7)

List of Cases cited:

## Text

106 INDIAN LAW REPORTS ALLAHABAD SERIES
appear to interfere in the impugned order
passed by the court below and revision
lacks merit and is liable to be dismissed.

14.
The
revision
is
accordingly
dismissed.

15. However, arrears of interim
maintenance prior to passing of impugned
order dated 24.5.2022 will be payable to
the applicant/opposite party in the form of
six equally monthly installments from the
date of production of certified copy of this
order before the court below provided the
revisionist shall pay amount of interim
maintenance on monthly basis to the
opposite party. However, it is made clear
that observations of this Court made therein
are only for the purpose of deciding present
revision and it will not be binding on court
below while deciding the maintenance
application on merits.
----------
(2023) 5 ILRA 106
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 4598 of 2009

Om Prakash Jain & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Vidya Prakash Singh

Counsel for the Opposite Parties:
Govt. Advocate, Sri Akshat Sinha, Sri Y.K.
Singh
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section-498-A
,Dowry
prohibition
Act,1961- Section 3/4 , cases where the
fact of death is disputed, caution must
be exercised - If no concrete conclusion
is reached, a separate miscellaneous
case may be registered and authorities
directed to provide evidence - appeal
cannot be left pending just because a
collateral issue or a question of mere
procedural importance has cropped up
which may demand calling for further
evidence and may require inquiry. (Para
- 6)

Case convicting all accused persons for
offences - convicts preferred an appeal - one
of appellants (husband of victim) died - victim
filed an application no. 55-B - stating that her
husband is still alive - forged and fake papers
given from side of appellants - to close case
against him. (Para -3)

HELD:- Appellate court should have instituted
a separate miscellaneous case to determine
the death of one appellant and proceed with
the rest's appeal. If forged paper submitted,
the court can institute an enquiry under
section 340 of Cr.P.C. or file an F.I.R. if fit in
the circumstances. Court directed to separate
case of appellant and inquire into his death,
while the rest of the appellants (revisionists)
will proceed as per law.(Para - 7,8)

Revision disposed of. (E-7)

List of Cases cited:

1. Madhu Limaye Vs The St. of Maha. , Crl.
Appeal No. 81 of 1977

2. Amar Nath & ors. Vs St. of Harayana & ors. ,
Crl. Appeal No. 124 of 1977

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Vidya Prakash Singh, learned
counsel for the revisionists and Sri O.P.
5 All. Om Prakash Jain & Ors. Vs. State of U.P. & Anr.
107
Mishra, the learned A.G.A. for the State
and perused the material on record.

2. By means of this criminal revision,
the revisionists no. 1, 2 & 3 have
challenged the order dated 06.11.2009
passed in Criminal Appeal No. 01 of 2005,
Sanjay Jain & Others Vs. State of U.P.,
arising out of Case Crime No. 175 of 1999,
under section-498-A I.P.C. read with
section 3/4 of D.P. Act, Police Station-
Kavi Nagar, District Ghaziabad, by which
the learned Additional Sessions Judge,
Ghaziabad passed an order that it shall be
presumed that one of the accused person
namely, Sanjay Jain, is absconding and
accordingly the appeal shall proceed.

3. Some other relevant facts are
below:-

i. Sanjay Jain, Om Prakash Jain,
Smt. Nisha and Smt. Shakuntala were tried
for the offences under sections 498-A I.P.C.
and Section 3/4 of Dowry Prohibition Act,
Case Crime No. 175 of 1999. The trial
court decided the case convicting all the
accused persons for the offences under
sections 498-A I.P.C. and section 3/4 of
D.P. Act and sentenced them to undergo
different span of imprisonment and fine.

ii. The convicts preferred an
appeal. During the course of hearing of the
appeal, the revisionists-Om Prakash Jain
and others informed the appellate court that
one of the appellants namely, Sanjay Jain
(husband of the victim), has died. On this
application, a report was called from the
police, who submitted certain papers
including death certificate from Nagar
Palika Parishad and some medical papers.
The victim (wife of Sanjay Jain) filed an
application no. 55-B stating therein that her
husband is still alive and that forged and
fake papers have been given from the side
of the appellants so that the case against
him is closed.

iii. The learned appellate court
went through the papers filed in this regard
and considered the contentions of both the
sides and concluded as below:-

"इस प्रकार उपरोक्त पररस्थिस्ियों को देखिे हुए मैं इस
स्िष्कर्ष पर पहुुंचिा ह ूँ स्क पत्रावली पर उपलब्ध दथिावेजों के
आधार पर सुंजय जैि की मृत्यु स्िस्िि िहीं है और इस समय
अपील की सुिवाई होिी है। ऐसी स्थिस्ि में सुंजय जैि को फरार
मािकर अपील का स्िथिारण स्कया जािा न्यायोस्चि है।"

4. From the side of respondent no. 2, it
is
contended
that
order
is
purely
interlocutory in nature, therefore criminal
revision is not maintainable. In addition,
this objection has been raised on behalf of
State as well as respondent no. 2 that the
instant revisionist do not have any locus
standi to assail the order. The respondent
no. 2 has cited judgments of the Hon'ble
Supreme Court given in Madhu Limaye
Vs. The State of Maharashtra in Crl.
Appeal No. 81 of 1977 decided on
30.10.1977 and Amar Nath & Others Vs.
State of Harayana & Others in Crl.
Appeal No. 124 of 1977 decided on
29.07.1977 in this regard.

5. In reply to the above contention, it
is stated on behalf of revisionists that they
being the parents of Sanjay Jain have tried
to bring the true facts before the court so
that the appeal can proceed. They may not
strictly fall in the category of aggrieved
108 INDIAN LAW REPORTS ALLAHABAD SERIES
persons, however they can very well point
out the mistake if any, has been committed
by the trial court or the appellate court and
in this view of the matter this revision
cannot be thrown out at the very threshold.

6. I went through the impugned order.
As far as the fact of death of one of the
accused/appellant is concerned, it is a matter of
inquiry and in case the court comes to a
conclusion that in fact he has died the case
against him may abate. There may be cases
where the such fact of death is disputed and is
contested. In such circumstances, the court has
to proceed in a very cautious manner. If the
court cannot come to any concrete conclusion,
it may register a separate miscellaneous case
and proceed to inquire into the facts and direct
the authorities concerned to furnish evidence.
The appeal cannot be left pending just because
a collateral issue or a question of mere
procedural importance has cropped up which
may demand calling for further evidence and
may require inquiry.

7. In such peculiar circumstances it was
just not right for the appellate court to presume
that the appellant is absconding. It would have
been much better if a separate miscellaneous
case is instituted to decide upon the fact of
death of one of the appellant and to proceed
with the appeal of the rests of the appellants. It
may be made clear that if at any stage of the
proceeding the court concerned finds that
forged paper has been submitted before it, then
it will be within its power to institute an
enquiry under section 340 of Cr.P.C. or file an
F.I.R. if found fit in the circumstance of matter.

8. The impugned order is set aside and
the learned court below is directed to
separate the case of appellant Sanjay Jain
and to proceed to inquire into the fact of his
death. The appeal of the rest of the
appellants (the revisionists in this case)
shall proceed as per law.

9.
Accordingly,
this
revision
is
disposed of.
----------
(2023) 5 ILRA 108
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 17 of 2019

Smt. Pooja & Ors. ...Appellants
Versus
Vijay Kumar Tiwari & Ors. ...Respondents

Counsel for the Appellants:
Sri Prakhar Tandon

Counsel for the Respondents:
Sri Anubhav Sinha

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-enhancement of
claim- deceased died leaving behind his
wife
and
three
children-the
tribunal
considered
the
deceased
income
Rs.
3000/- per month in place of 16,321/- per
month and has not granted future loss of
income-The claimants are entitled to 50%
enhancement in wages towards future
prospects, consistent with the UP Rules,
1998-Total compensation would be Rs.
38,15,678/- and rate of interest would be
7% -the insurance company shall deposit
the amount within 3 months. (Para 1 to
13)

The appeal is partly allowed. (E-6)