# Omkar & Ors v. State of U.P. &Anr

- **Citation:** (2019) 1 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-08-02
- **Case number:** CIVIL MISC. WRIT PETITION No.23913 of 2017
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omkar-ors-v-state-of-u-p-anr-44301
- **Pages:** 3

## Headnote

A. Sections 147, 148, 149, 37 and 302
Indian Penal Code - Trial in which
applicant
are
accused
reached
its
culminating stage - other complaint case
in which other side is accused has been
stayed by the High Court -
Held:- Principle that cross cases should
be tried by same court - not universal
principle - differs from case to case- stay
not
granted
to
the
applicants
-
unnecessarily hamper the process of
law- application dismissed. (Para 4)

The Court observed that the evidence produced in
cross case cannot be used in other cross case. Both
the cases have to be decided separately based on
the evidences produced at the time of trial so as to
avoid the possibility of mutually conflicting decisions
which may sometimes happen if the verdict given in
one case is not disclosed to the Court. (E-10)

## Text

148 INDIAN LAW REPORTS ALLAHABAD SERIES
cases where there is abnormal delay/laches
in initiating criminal prosecution, as are
illustrated in Lalita Kumari are being filed.
That apart, the learned Magistrate would
also be aware of the delay in lodging of the
FIR."

4. The argument of the learned
counsel for the applicants that the
application was not supported by any
affidavit due to which, the learned
Magistrate should have rejected the
application on this basis only, cannot be
given weight due to reason that the
complaint was filed on 20.12.2014 and
the impugned order was passed on
08.01.2015 much before the judgment in
Priyanka Srivastava & Another vs. State
of Uttar Pradesh & Others (supra) which
was decided on 19.03.2015 and prior to
this judgment, no such affidavit was
required to be filed with application.
Secondly, the Magistrate has not directed
for registration of F.I.R. in this case. It
cannot be said that mere direction to
register the application under Section
156(3) Cr.P.C., will in any way, cause
prejudice to the applicants. It cannot be
categorised as misuse of the process of
the Court. When the application was
registered
as
complaint,
on
oath,
statement of the complainant will be
recorded, which is no less than affidavit.

5. From perusal of the application
filed under Section 156(3) Cr.P.C. by the
opposite party no. 2, it appears that the
applicants on the date of incident came to
the house of opposite party no. 2 with
lathi and danda in their hands and started
abusing the opposite party no. 2. When he
opposed, they started beating him. At this
the opposite party no. 2 ran into the house
where also he was beaten by the
applicants and due to beating he sustained
injuries. The applicants also damaged the
television etc., which was kept in the
house.

6. Relying on the judgment of this
Court in the case of Sukhwasi vs. State of
U.P., (2007) 59 ACC 739 and of the Apex
Court in Mohd. Yusuf vs. Afaq Jahan
and others, 2006 (1) SCC (Cri.)460, the
learned count below has passed the order
to register the application as complaint
case. It is pertinent to mention that no
order directing police to register the first
information report and for investigation
was passed. When the case was registered
as complaint case, it will be followed by
due inquiry and the statement of the
complainants and other witnesses will be
recorded on oath and, therefore, there was
no incumbency for the court to require
any affidavit in support of the application.

7. Considering the aforesaid facts
and circumstances, I do not find any
ground to interfere in the order, however,
there was no ground for invoking the
extraordinary jurisdiction under Section
482 Cr.P.C. before this Court because the
said order was passed after due inquiry
against
the
applicants,
hence,
the
application is liable to be dismissed.

8. Accordingly the application is
dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2017

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

CIVIL MISC. WRIT PETITION No.23913 of 2017
(u/s -482 Cr. P.C.)

Omkar & Ors. ...Applicants
1 All. Omkar & Ors. Vs. State of U.P. & Anr.
149
Versus
State of U.P. &Anr. ...Opposite Parties

Counsel for the Applicants:
SriJai Prakash Singh.

Counsel for the Opposite Parties:
A.G.A.

A. Sections 147, 148, 149, 37 and 302
Indian Penal Code - Trial in which
applicant
are
accused
reached
its
culminating stage - other complaint case
in which other side is accused has been
stayed by the High Court -
Held:- Principle that cross cases should
be tried by same court - not universal
principle - differs from case to case- stay
not
granted
to
the
applicants
-
unnecessarily hamper the process of
law- application dismissed. (Para 4)

The Court observed that the evidence produced in
cross case cannot be used in other cross case. Both
the cases have to be decided separately based on
the evidences produced at the time of trial so as to
avoid the possibility of mutually conflicting decisions
which may sometimes happen if the verdict given in
one case is not disclosed to the Court. (E-10)

(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)

1. This application under Section
482 of Cr.P.C. has been filed with the
prayer to quash the order dated 4.7.2017
passed
by
the
Additional
Sessions
Judge/F.T.C., Court No. 2, Kasganj, in
S.T. No. 07 of 2010, State vs. Omkar and
others, arising out of Case Crime No. 455
of 2009, under Sections 147, 148, 149,
307, 302 I.P.C., P.S.- Ganjdundwara,
District- Kasganj by which the application
seeking staying the pronouncement of the
judgement in this case till disposal of the
another criminal Misc. Case No. 16379 of
2009.

2. Heard learned counsel for the
applicants and learned A.G.A. for the
State. Perused the record.

3. Submission of the counsel for the
applicants is that the trial in which the
applicants are accused, has already reached at
its culminating stage but the proceedings of
cross case, which was in nature of complaint
case, in which the other side has been made
accused, has been stayed by the orders of the
High Court. Further submission is that the
present trial of the applicants should be stayed
till the other cross case also comes up for trial
on the principles that the cross cases should be
decided together by the same court.

4. So far as the trial of the two cross
cases is concerned, this is true that
ordinarily cross cases should be tried
together by the same court but that is not
principle of universal application and
varies from case to case on various factors
and circumstances specially when out of
two cases one case is pending and in other
case
evidences
have
already
been
completed. Admittedly, one case in which
the applicants are accused, has reached at
its culminating stage and the evidences
have been recorded but the proceedings of
other case have already been stayed by
the High Court as it was deemed fit to do
so by the competent Bench seized with
the
jurisdiction,
and
in
such
circumstances, it will unnecessary hamper
the process of law if the trial of the
applicants is allowed to wait for indefinite
period of time specially in view of the
heavy pendency of the cases where it is
not very likely that the matter relating to
the complaint case may be decided at any
early date. This Court is also not very sure
whether the other case is actually in the
nature of cross case or not. Looking to the
final stage of trial, this Court does not feel
150 INDIAN LAW REPORTS ALLAHABAD SERIES
inclined to stay the proceedings till
disposal of the other case pending before
the High Court. It may also be taken note
of that the evidence which is produced in
the cross-cases cannot be made of any use
in other cross-case and both the cases
have to be decided on the basis of the
evidence produced in each of cases
separately remaining uninfluenced by the
evidence which is produced in the other
alleged cross case. The only rationale to
justify the decision in the two cases
simultaneously is to avoid the possibility
of mutually conflicting decisions which
may sometimes happen if the court is not
aware about the verdict given in the other
case. But in the peculiar facts and
circumstances of this particular case the
precautionary principle cannot override
the other significant considerations of
pragmatic judicial prudence and the
process of law cannot be stalled simply on
the basis of the existence of some alleged
cross case and that too where proceedings
have been stayed by the High Court. The
matter has already reached at the final
stage and must be allowed to arrive at its
logical
end
otherwise
instead
of
promoting, it shall frustrate the ends of
justice.

5. The application lacks merit and
stands dismissed.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

FIRST APPEAL NO.138 of 1998

Bulandshahr Khurja Development
Authority ...Appellant
Versus
Smt. Savita &Anr. ...Respondents

Counsel for the Appellant:
Sri A.K. Srivastava, Sri B.Dayal, Sri Ajay
Kumar Misra.

Counsel for the Respondents:
-

A. First Appeal - Refund of court fees -
Section 13 of the Court Fees Act, 1830;
Section 158 C.P.C. - First appeal allowed
remanding matter to court below for
decision fresh - Grounds mentioned in S.
351 C.P.C. explained - Principle laid
down by Apex Court in Pt. Chandra
Bhushan Mishra's case and Surendra
Singh's case relied upon - Applicable in
Land Acquisition Appeal too - Court fees
paid is liable to be refunded - Court
below directed to grant certificate u/s 13
of C.F. Act. (E-1)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1- Heard Sri B. Dayal, learned
counsel for the appellant. No one appears
on behalf of the respondent.

2- The present first appeal arises
from the impugned common judgment
passed in LAR No.164 of 1992.

3- By the impugned common
judgement
passed
in
LAR
Nos.
165,167,163, 164 and 166 all of 1992, the
reference court determined compensation
@ Rs. 400/- per Sq. yard along with other
statutory benefits and interest.

4- Learned counsel for the appellant
submits
that
by
Notification
dated
20.12.1988, under Section 4(1) of the
Land Acquisition Act, 1894 (hereinafter
referred to as the 'Act'), land measuring