# Parmanand Sirumal Tahalramami v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-28
- **Case number:** Application U/S 482. No. 6853 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parmanand-sirumal-tahalramami-v-state-of-u-p-ors-50586
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(wa), 2(y), 326 & 482 -
Indian Penal Code, 1860 - Sections 34,
302, 304-B, 201 7 498-A - Dowry
Prohibition Act, 1961 -- Sections 3 & 4 -
Arms Act, 1878 - Section - 30: -
Application U/s 482 - for quashing the
impugned order whereby trial court refused to
afford an opportunity of hearing to the
applicants/victims in session trial on the
premises that the applicant are strangers and
have no right of being heard - Offence of
Murder - Dowry death - Whether applicant
number no.1, who is uncle of deceased, has a
right to participate in trial proceedings, and if
it is looked into in purview of the definition of
victim and be examined in four corners of
definition, it emerges that the deceased is
niece of the applicant no. 1 and she was living
with applicant no.1 at Delhi for considerable
period of time - Held, law is well settled that
such an order or judgment cannot be revised
by same court unless otherwise provided in
any law time being in forced or any direction
or order passed by the superior courts and in
present matter in absence of any such
provisions or directions, the learned Sessions
Court had no power to revisit/revise the order
passed by the predecessor judge, while
accepting application of applicant for allowing
him to participate in the trial proceedings -
Application
allowed
-
directions
issued
accordingly. (Para - 29, 30, 31, 32)

Application u/s 482 allowed. (E-11)

List of Cases cited:

## Text

7 All. Parmanand Sirumal Tahalramani Vs. State of U.P. & Ors.
671
land, clearly proof that possession of the
acquired land was taken and the same was
also utilised by the beneficiary. Even report
of D.M., J.P. Nagar dated 21.01.2006 as
well as report dated 24.10.2017 of S.L.A.O.
annexed as Annexure-I of compliance
affidavit dated 14.12.2017 shows that
acquired land of petitioner is inside the
boundary wall of respondent no.5

19. In the present case, notification
dated 15.10.1976 was not challenged while
filing the present case and only prayer was
made that application of the petitioners for
denotifying his land under Section 48 of the
Act, 1894 may be considered.

20. Section 48 of Act, 1894 itself does
not give any right to original tenure holder
to compel the State to withdraw from
acquisition. This Section only enabling
provision which enable the State to
withdraw from acquisition when the
acquired
land
was
not
taking
into
possession but in the present case, the State
as well as respondent no.3 clearly stated
that possession of the land was taken and
the same was transferred to respondent no.5
for establishing a factory. Section 48 of the
Land Acquisition Act, 1894 is quoted
herein below;

"Section
48
Completion
of
acquisition
not
compulsory,
but
compensation to be awarded when not
completed.-

(1) Except in the case provided
for in section 36, the Government shall be
at liberty to withdraw from the acquisition
of any land of which possession has not
been taken.

(2) Whenever the government
withdraws from any such acquisition, the
Collector shall determine the amount of
compensation due for the damage suffered
by the owner in consequence of the notice
or of any proceedings thereunder, and shall
pay such amount to the person interested,
together with all costs reasonably incurred
by
him
in
the
prosecution
of
the
proceedings under this Act relating to the
said land.

(3) The provisions of Part III of
this Act shall apply, so far as may be, to the
determination of the compensation payable
under this section."

21. The present petition is itself
barred by serious laches because the
petitioners have agitated the ground of
possession in the year 2006 though the land
was acquired in 1976 and possession was
also
taken
in
the
year
1976
and
subsequently leased out to respondent no.5
in the year 1976 and 1977.

22. In view of the fact, petitioner
could not make out any case for the
indulgence of this Court, therefore petition
fails and is dismissed.
----------
(2023) 7 ILRA 671
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 6853 of 2023

Parmanand Sirumal Tahalramami
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Gantavya
672 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(wa), 2(y), 326 & 482 -
Indian Penal Code, 1860 - Sections 34,
302, 304-B, 201 7 498-A - Dowry
Prohibition Act, 1961 -- Sections 3 & 4 -
Arms Act, 1878 - Section - 30: -
Application U/s 482 - for quashing the
impugned order whereby trial court refused to
afford an opportunity of hearing to the
applicants/victims in session trial on the
premises that the applicant are strangers and
have no right of being heard - Offence of
Murder - Dowry death - Whether applicant
number no.1, who is uncle of deceased, has a
right to participate in trial proceedings, and if
it is looked into in purview of the definition of
victim and be examined in four corners of
definition, it emerges that the deceased is
niece of the applicant no. 1 and she was living
with applicant no.1 at Delhi for considerable
period of time - Held, law is well settled that
such an order or judgment cannot be revised
by same court unless otherwise provided in
any law time being in forced or any direction
or order passed by the superior courts and in
present matter in absence of any such
provisions or directions, the learned Sessions
Court had no power to revisit/revise the order
passed by the predecessor judge, while
accepting application of applicant for allowing
him to participate in the trial proceedings -
Application
allowed
-
directions
issued
accordingly. (Para - 29, 30, 31, 32)

Application u/s 482 allowed. (E-11)

List of Cases cited:

1. Ram Phal Vs St. & ors., 2015 SCC On-Line Del
9802,

2. Jagjeet Singh & ors.Vs Ashish Mishra @ Monu
& anr., (2022) 9 SCC 321

3. Manoj Kumar Singh Vs St. of U.P. & ors.,
(2016) 97 ACC 861 (FB)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. At the very outset, the learned
counsel appearing for the applicant submits
that she may be permitted to withdraw the
prayer clause 'c' and the same may be
permitted to be deleted.

2. The learned counsel appearing for
the State has no objection to the contention
aforesaid.

3. In view of the aforesaid
submissions, the applicant's counsel is
permitted to withdraw the prayer clause 'c'
with further permission of deleting the
same during the course of the day.

4. Heard, Ms. Neha Rashmi and
Gantavya,
learned
counsels
for
the
applicants, Sri Aniruddh Kumar Singh,
learned AGA-I for the State and perused
the material placed on record.

5. By means of the present
application, prayer has been made to setaside the order dated 26.05.2023 passed by
respondent no. 2 in S.T. No. 375 of 2007
(State Vs. Sunit Tehlyan and Others)
arising out of Case Crime No. 25 of 2005,
under Section 302, 304 B, 201, 498 A r/w
Section 34 of IPC and Section 3/4 of
Dowry Prohibition Act and Section 30 of
Arms Act, P.S. Manak Nagar, District
Lucknow and further prayer is made that
the applicant nos. 1 to 3 may be treated as
the legal heirs of the victim, as applicant
no. 1 is real uncle of the deceased and the
applicant nos. 2 and 3 are the parents.

6. Brief factual matrix of the case
is that on 25.04.2001, the niece of applicant
no.
1,
namely,
Vanshika
performed
marriage with the respondent no. 3,
namely, Sumit Tehilyani and on the
demand of the accused persons, the
applicants had given lucrative gifts and
7 All. Parmanand Sirumal Tahalramani Vs. State of U.P. & Ors.
673
articles to them at the time of marriage
including TV, Jewellery, Motorcycle and
the deceased Vanshika was residing in her
matrimonial home at Lucknow with the
accused persons, i.e., respondent nos. 3 to
9.

7. Shortly, after the marriage, the
respondent no. 3 and his family members
started
committing
cruelty
with
the
deceased, whereby, making demands of
dowry and the deceased was threatened for
dire consequences, if she and the applicant
and the family members are failed to satisfy
the demand of the accused persons. This
was kept on intimating to the applicants but
the family members of the deceased always
tried to make understand the accused
persons that whatsoever was available to
them, they have given at the time of the
marriage and they are not in a position to
provide them whatever is being demanded
as dowry and in the meantime, on
11.10.2002, the deceased, Vanshika gave
birth to a female child, namely, Monish
Tehliani and even after birth of the child
there was no change in the behavior of the
accused persons and even the deceased
Vanshika was deprived from food and
water and was kept isolated from her
family members. The deceased, Vanshika
and her daughter, Monish Tehliani were
last seen alive on 06.05.2005, in the
matrimonial home at Lucknow as there was
the birthday of Vanshika and thus the
accused persons permitted the parents to
talk for a short while at 12:12 P.M. on
landline phone and during the conversation,
it was felt that she was feeling terrified and
during the course of the conversation, the
phone was snatched from her and that was
disconnected
and
thereafter
numerous
attempts were made to contact the deceased
Vanshika and accused persons but that was
in vain and ultimately, at 8:45 P.M.,
respondent no. 3 casually informed that he
had killed Vanshika and fatally shot
Monish Tehliani and as a result Vanshika
died and the daughter of Vanshika, Monish
Tehliani
succumbed
injuries.
As
the
accused are very influential persons of the
city and thus under their pressure, the
Police was avoiding to lodge the First
Information Report of the incident. The
investigation was transferred multiple times
and thereafter the charge-sheet was filed
and the trial proceeded any how.

8. Further, on 02.09.2022, the
applicants showing them as victim filed an
application to represent themselves through
their counsel before the trial Court which
was allowed on 14.12.2022 and thereafter
on several dates, the counsel of the
victims/informants/applicants
made
submissions on 06.01.2023, 18.01.2023 and
21.01.2023
to
25.01.2023
and
on
08.02.2023, and liberty was also given by
the Trial Court to the counsel for the
applicants/victims
to
file
written
submissions and the written submissions
were also filed thereof and that was taken
on record. On 13.02.2023, once the accused
persons have failed to make hindrance
regarding the submissions, permitted to be
advanced, they filed a frivolous transfer
application before the learned District
Judge which was rejected after hearing the
counsel
for
the
applicants/victims,
thereafter on 21.02.2023, the accused
persons filed Transfer Petition (Criminal)
No. 10 of 2023 before the Hon'ble High
Court which was also rejected after hearing
the counsel for the victims/applicants and
the matter was remanded back to the
learned
District
Judge
unequivocally
directing that the transfer petition shall be
decided after hearing the counsel for the
victims/informants and on 28.02.2023, after
hearing the parties, the District Judge
674 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected the transfer petition of the accusedrespondents and in between the predecessor
Judge was transferred and the matter was
required to be re-heard and when on
08.05.2023,
the
counsel
for
the
victims/informants/applicants appeared and
requested
for
advancement
of
his
arguments, he was orally denied, though
learned
ADGC
(Criminal)
verbally
expressed that he has no objection if the
counsel for the victims/applicants is heard
and thus, on the same day an application
was also moved by the applicants praying
therein
that
they
may
be
granted
opportunity of hearing through their
counsels to appear in the final hearing and
address
the
Court,
whereafter
on
15.05.2023 no objections were filed by the
prosecution and the victims/applicants filed
written submissions in support of his
application dated 08.05.2023 and the
objections were again invited and on
23.05.2023, the learned ADGC (Criminal)
endorsed
no
objection
for
victims/applicants
being
granted
an
opportunity of hearing on the application
dated
8.05.2023
and
thereafter
on
26.05.2023, the learned Trial Court passed
the order impugned and refused to afford
an
opportunity
of
hearing
to
the
applicants/victims in Session Trial No. 375
of 2007 on the premises that the applicants
are strangers and have no right of being
heard.

9. Contention of the learned
counsel for the applicants is that the
applicant no.1 is a real uncle and applicant
nos. 2 and 3 are the father and mother of
the victim, i.e., deceased Vanshika and her
female child and they come under the
purview of the victim as has been defined
under section 2(wa) of Cr.P.C. The
applicant no. 1 is also the informant in the
matter and he got registered the F.I.R. No.
25 of 2005, after the murder of his niece
and daughter of niece. She submits that it
has been a settled law that there is ample
right to the victim to be heard as the victim
is the de facto sufferer of a crime, and as
such, the victim cannot be declined to
participate in the adjudicatory process, as
of now, the jurisprudence with respect to
the right of the victim is positively involved
in criminal proceeding and it has become a
settled law that the victim cannot be denied
to be heard. In support of her contention,
she has placed reliance on a judgement
rendered in 2015 SCC OnLine Del 9802 of
High Court of Delhi, in case of Ram Phal
Vs. State & Ors and has referred
paragraph 52, 53, 54 of the aforesaid
judgement, which reads as under:-

 "52. As has been discussed
above, Section 2(wa), in its definition of
"victim", uses the phrase "means x and
includes y". While Chattar Singh reasoned
that "includes y" extends the ordinary
meaning of the "[means] X", to cover
things that would not otherwise be covered
by an everyday meaning of "X", it
interpreted
the
two
parts
of
CRL.A.1415/2012 Page 34 the definition to
include non-overlapping and mutually
exclusive categories: "injury" being limited
to the most direct and proximate sufferer of
physical harm, and "legal heirs" covering
the heirs entitled to succeed in personal
law. A broader meaning of the word
"victim",
encompassing
sufferers
of
emotional harm, would have necessitated
an overlap between the two categories,
since it is possible that a legal heir would
also be a "victim", in the sense of having
suffered a proximate mental injury as a
result of the crime. This Court, therefore,
does not agree with the decision in Chattar
Singh that a Class II heir can be excluded
by a Class I heir, as a Class II heir may
7 All. Parmanand Sirumal Tahalramani Vs. State of U.P. & Ors.
675
well
have
suffered
"injury"
that
is
emotional/mental, thus bringing him/her
within the definition of "victim" itself. To
permit such a victim to be excluded by a
Class I heir would amount to letting those
"included" within the definition, exclude
those falling within the ordinary and
natural meaning of the word defined. The
Court therefore cannot agree with the
analysis in Chattar Singh that treats the
hierarchy of "legal heirs" in personal law
as solely determinative of who may qualify
as a "victim" simpliciter, in the absence of
which, a victim by inclusion. Subject to
this, we are in agreement with the
submissions of the learned Amicus, and
with the judgment of the Punjab &
Haryana High Court, that the meaning of
"legal heirs" refers to all heirs designated
as such by the relevant personal law,
irrespective of whether or not they are
excluded by the lines of succession at any
given time.

 53.
To
summarize,
the
conclusions from the above discussion are:

 (i) "victim" in Section 2(wa), by
virtue of being defined as "a person who
has suffered any loss or injury" must
include a person who has suffered „harm
caused to the mind‟, given that Section
2(y) of the Code of Criminal Procedure
incorporates the definition of "injury" in
Section 44 of the IPC into the Code.

 (ii) The "means X and includes Y"
clause in Section 2 (wa) cannot be
interpreted so as to result in the included
meaning Y excluding the actual meaning X
of the term being defined; thus "legal heirs"
who are included within the definition of
the term „victim‟ cannot exclude those
who CRL.A.1415/2012 Page 35 actually
fall within the definition of „victim‟ by
virtue of emotional harm suffered, such as
the father or siblings of a deceased victim
or other categories of persons (based on
proximity) noted previously .

 (iii) The laws of inheritance,
which decide one‟s "legal heirs", are not
intended to be solely determinative of the
entitlement to exercise the rights of the
victim, in the criminal trial/appeal, on
his/her death, application of Heydon‟s
mischief rule, given that the object of the
2008 Amendment Act was to ensure the
involvement of the victim, who has a
presumably personal interest in the fair
and
efficient
prosecution
of
the
trial/appeal. Resultantly, it is impermissible
for an appellate court to shut out an appeal
by a "legal heir" based only on her/his not
being an immediate heir, or being lower
down in hierarchy vis-à-vis entitlement to
the crime victim‟s estate.

 54. As a concluding remark on
the specter of uncertainty (of defending
multiple appeals) which would possibly
hover over, and weigh down those
acquitted of offences goes, this Court is in
agreement with the view of the Punjab and
Haryana
High
Court
that
all
such
„victims‟ or „legal heirs‟ appeals would
be heard together, and the issue can be
resolved by proper docket management.
The court is reminded of the view in Pakala
Narayana Swamy v. Emperor AIR 1939 PC
47 that "... in truth when the meaning of
words is plain, it is not the duty of the
Courts to busy themselves with supposed
intentions" - and one may add in the
context, imagined difficulties. "

10. Placing reliance on the above
said judgement, she submits that it has been
very minutely interpreted that who is the
victim and whether the legal heirs termed
676 INDIAN LAW REPORTS ALLAHABAD SERIES
as Class I and Class II heirs, have any
difference in the meaning in context to
Section 2(wa) of Cr.P.C. It has very
categorically been held that there cannot be
any difference so far as the victim defined
under section 2(wa) of Cr.P.C, with respect
to Class I and Class II heirs as there might
be more emotional attachment of a Class II
heir to the deceased/victim and he or she
can suffer injury than a heir of Class I
category. If a person who has suffered
harm to his mind, that covers definition of
'injury' which has been defined under
section 44 of IPC.

11. She has further placed reliance
on the judgement reported in (2022) 9 SCC
321, Jagjeet Singh and Others Vs. Ashish
Mishra @ Monu and Another and has
referred to paragraph 22 and 25 which are
read as under :-

 "22. It cannot be gainsaid that
the right of a victim under the amended
Cr.P.C. are substantive, enforceable, and
are another facet of human rights. The
victim's right, therefore, cannot be termed
or construed restrictively like a brutum
fulmen. We reiterate that these rights are
totally independent, incomparable, and are
not accessory or auxiliary to those of the
State under the Cr.P.C. The presence of
'State' in the proceedings, therefore, does
not tantamount to according a hearing to a
'victim' of the crime.

 25. Adverting to the case at hand,
we
are
constrained
to
express
our
disappointment with the manner in which the
High Court has failed to acknowledge the
right of the victims. It is worth mentioning
that, the complainant in FIR No. 219 of 2021,
as well as the present Appellants, are close
relatives of the farmers who have lost their
lives in the incident dated 03.10.2021. The
specific stance taken by learned Senior
Counsel for the Appellants that the Counsel
for the 'victims' had got disconnected from
the online proceedings and could not make
effective submissions before the High Court
has
not
been
controverted
by
the
Respondents. Thereafter, an application
seeking a rehearing on the ground that the
'victims' could not participate in the
proceedings was also moved but it appears
that the same was not considered by the High
Court while granting bail to the RespondentAccused."

12. Referring the aforesaid, she
submits that the Apex Court has settled the
law so far as the right of the legal heirs of the
victim is concerned and it has spoken in so
many words that the victim including the
legal heirs has a legal vested right to be heard
at every step, post the occurrence of the
offence,
and
that
is
the
unbridled
participatory
right
from
the
step
of
investigation to the culmination of the
proceeding in an appeal or revision. It has
also been held that even a stranger to the act
of a crime can be an informant and similarly
the victim need not be the complainant or
informant of a felony.

13. Adding her argument, she
submits that statutory mandate of section
326 of Cr.P.C clearly provides that the trial
Court is under statutory obligation to
continue the trial from where it was
stopped by his predecessor Judge and
therefore once the predecessor Judge
allowed
the
applicants/victims
to
participate in the proceedings, they cannot
be stopped to further participate in the
proceedings as the same would be amount
to revise/review the orders already passed.

14. Further contending that the
findings with respect to the fact that the
7 All. Parmanand Sirumal Tahalramani Vs. State of U.P. & Ors.
677
learned ADGC (Criminal) opposed the
application of the applicants, is perverse as
it is apparent from the record that learned
ADGC (Criminal) has already endorsed 'no
objection' to the applicant's counsel for
being heard in the matter, which clearly
shows the maliciousness and biasness of
the Presiding Officer. She submits that
refusing the applicants to appear in the trial
proceeding is against the law of the land as
the Hon'ble Apex Court in a very recent
judgement has held that the victim has
ample right to be heard in the criminal
proceeding started from investigation to the
stage of culmination. She further added that
the
impugned
order
by
which
the
opportunity of hearing to the applicants
have been denied, is not only erroneous but
also against the settled proposition of law
and is also a judicial indiscipline.

15. She further argued that it is in
fact
the
influence
of
the
private
respondents, being an old family of
Lucknow, exercises a lot of clout in the city
have not only influenced the investigation,
but thereafter they are making every
endeavor to supress the free and fair
adjudication of the matter at every step.
This fortifies that while lodging the First
Information Report, the applicants faced a
lot and after a week, the First Information
Report was registered after several efforts
made by the applicants.

16. Concluding her arguments,
she submits that the impugned order is
pedantic,
perverse
and
shocks
the
conscience of justice and further it is a
denial of right of hearing to the
applicants which is against the law settled
by the Apex Court and therefore the
submission is that the impugned order
dated 26th May, 2023 passed on the
application of the applicant, in Sessions
trial number 375 of 2007, may be setaside.

17. Per contra, learned AGA
appearing for the state has vehmently
opposed the contentions aforesaid and
submits
that
admittedly,
the
First
Information Report was lodged by the
applicant no.1, who is the uncle of the
deceased Vanshika. He submits that the
victim has a right to participate in the
criminal proceedings, which has been
defined under section 2(wa) of Cr.P.C
and from bare reading of the aforesaid it
is apparent that victim includes his or her
'guardian' or 'legal heirs' and as the father
and mother, i.e., the applicant no. 2 and 3
of the deceased Vanshika, are still alive
but the First Information Report was
lodged by the uncle of the deceased and
therefore, he did not come under the
purview of the definition given under
section 2(wa) of Cr.P.C.

18. Adding his argument, he has
placed reliance on full bench judgement
reported in (2016) 97 ACC 861 (FB),
Manoj Kumar Singh Vs. State of U.P.
and others and has referred paragraphs
68 and 69 of the judgement, which are
quoted hereinunder:-

 "68. From the discussions that
have been made above, it is clear that the
proviso of Section 372 is an exception to
the general law and same confers on a
victim a right to appeal against acquittal,
which is subject to the grant of leave by the
Court. The first part of the definition of
'victim' as given under Section 2 (wa) (i.e.
"Victim" means a person who has suffered
any loss or injury caused by reason of the
act or omission for which the accused
person has been charged), is required to be
construed in its literal sense and no liberal
678 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation is required, Accordingly,
only such person would be treated as
''victim', who is the subject-matter of trial
being direct sufferer of crime in terms of
loss or injury caused to his own body,
mind, reputation and property and such
loss or injury is one of the ingredient of the
offence for which the accused person has
been charged and, therefore, any other
person cannot be accepted as victim within
the first part of Section 2 (wa) for the
purposes of maintaining appeal. The
second part that is "includes his or her
guardian and Legal Heir" would come into
play when the actual sufferer is absent or
suffers disability.

 69. In other words, victim means
the actual sufferer of offence (receiver of
harm caused by the alleged offence) and no
person other than actual receiver of harm
can be treated as victim of offence, so as to
provide him /her right to prefer appeal
under the proviso of section 372, though, in
his or her absence or disability, his "legal
heir" or "guardian" would qualify as victim
and have a right to appeal. A person who
claims himself to be 'guardian' or 'legal
heir' of actual victim (direct sufferer),
would be able to maintain appeal provided
he establishes his claim as such before the
court in his application by disclosing his
particulars; relationship with the direct
sufferer; and the grounds on which such
claim of being "legal heir" or "guardian" is
based. In the light of the discussion made
above, the ratio of Division Bench of this
Court in the case of Edal Singh (supra) is
in tune with the definition of 'victim' as
provided under Section 2 (wa) of the Code
of Criminal Procedure. The reference is
answered accordingly."

19. Referring to aforesaid, he
submits that a full Bench of this Court has
very categorically held that no liberal
interpretation of the word 'victim' requires
as only such person would be treated as
victim who is the subject matter of trial
being 'direct sufferer of crime' in terms of
'injury' caused to his own body, mind,
reputation and property and such loss or
injury is one of the ingredients of the
offence for which the accused persons have
been charged and thus it has been
summarized that the victim himself is the
actual sufferer of the offence and the
guardian or legal heir would come into play
when actual sufferer is absent or suffers
disability.

20. He further added that since the
applicant no.1 is the uncle of the deceased,
and the parents are still alive and no cogent
reason has been given that why they are not
approaching this Court and therefore the
uncle has no right to say that he is the legal
heir/guardian of the victim.

21. Further argued that once the
matter
came
up
before
the
present
Presiding
Officer,
he
considered
the
application and has rejected the same as he
found that this is being done for delay
dallying tactics. Whereas the trial is on its
final stage and allowing any person without
being his or her the guardian or legal heir,
can not be justifiable and therefore the
learned Trial Court has rightly passed the
order dated 26.05.2023 and there is no
erroneousness or any perversity and as such
the present applicants are not entitled for
any relief.

22. Having heard the counsel for
the parties and after perusal of the material
placed on record, it emerges that the
marriage of the deceased Vanshika was
solemnized on 25 April 2001 at Lucknow
with respondent no.3, namely Sumit
7 All. Parmanand Sirumal Tahalramani Vs. State of U.P. & Ors.
679
Tehliani, and after the marriage, the private
respondent started demanding dowry and
they tortured the deceased. Thereafter, in
case of non-payment of dowry, the torture
reached its climax and the deceased
Vanshika and her one and half year female
child were shot dead, and hardly it was
intimated to the family member. It also
reveals that the First Information Report
was
lodged
after
8-9
days
as
the
respondents/accused persons were said to
be very influential persons, being an old
family at Lucknow and after running pillar
to post they could succeed to get the First
Information Report registered.

23. Further, the fact remains that
the
predecessor
judge
allowed
the
applicants/victims to participate in the trial
proceeding and for a long period of time
the applicants participated through their
counsels and thereafter when another
Presiding
Officer
started
trial,
the
applicants
were
stopped
orally
to
participate and then an application was
moved wherein the ADGC (Criminal) has
accorded his no objection and even no
objection has also been given on the written
submission moved by the applicants, but on
26.05.2023, the applicants were refused to
afford opportunity of hearing on the ground
that they are the stranger to the crime, and
has no right to being heard in the matter.

24.

Now
culminating
the
submissions of the parties and going
through the facts, three questions are
cropped
up;
Firstly,
whether
the
applicants are the legal heirs as per the
definition of victim given under section
2(wa) of CrPC? Secondly, whether the
legal heirs/guardians of the victim have
right
to
participate
in
the
trial
proceedings?
Thirdly,
whether
the
subsequent Presiding Officer had a right
to review/revise/revisit the order passed
by the Predecessor Judge?

25. So far as the first question is
concerned, it would be relevant to go
through the definition of 'victim' as
envisaged under section 2(wa) of CrPC.
Section 2(wa) of CrPC read as under:-

 "'victim' means a person who
has suffered any loss or injury caused by
reason of the act or omission for which
the accused person has been charged and
the expression "victim" includes his or
her guardian or legal heir."

26. The definition says that
victim means a person who has suffered
any loss or injury caused by accused
person and that includes his or her
guardian or legal heirs. So far as the
injury is concerned that is defined under
section 44 of IPC and the reference of the
same can be taken as per the provision of
section 2(y) of CrPC. Injury as has been
defined in section 44 IPC is read as
under:-

 "the word "Injury" denotes any
harm whatever illegally caused to any
person, in body, mind, reputation or
property."

27. From perusal of the definition
of injury, it's clear that injury denotes any
harm, illegally caused to any person, in
mind, body, reputation or property. The
case in hand is that the death of niece was
caused by respondent no.3 and the other
co-accused persons by shooting her dead.
Niece, Vanshika lived with her uncle for a
long period of time at Delhi as the family
of the applicants are a joint family. Not
only the niece was shot dead but her one
and half year female child Monisha was
680 INDIAN LAW REPORTS ALLAHABAD SERIES
succumbed to injuries after three days of
the incident. Naturally, this incident would
have caused harm in the mind of the uncle
of the deceased and thus this can be termed
that the applicant no. 1 is also a victim in
terms of the definition given in section
2(wa) of CrPC as it has been said that a
person who has suffered loss or injury by
accused person, would be a victim and
victim includes his or her guardian or legal
heirs. In this view, it can be said at first
hand that the uncle who is the applicant no.
1, suffered injuries, which harmed his mind
and thus being a guardian he is a victim of
the incident.

28. It is a trite law that victim has
a legal vested right to be heard at every
step, post the occurrence of an offence and
the victim has participation right from the
stage of investigation till the culmination of
proceeding in an appeal or revision. As
such, it is a binding law on all Courts of
this country, and therefore the question
no.1 is answered affirmatively, that the
victim has every right to participate in a
criminal proceeding starting from the stage
of investigation till appeal or revision
reaches to its finality.

29. The next question is also
related to the first question to some extent
that whether the applicant number no.1,
who is the uncle of the deceased, has a
right to participate in the trial proceedings,
and if it is looked into in purview of the
definition of victim and be examined in the
four corners of the definition, it emerges
that the deceased is the niece of the
applicant no. 1 and she was living with the
applicant no.1 at Delhi for considerable
period of time. Therefore, there must be
some emotional relation in between the
applicant no.1 and the deceased namely
Vanshika, and it is a natural consequence
that if a human is affectionate with some
other and something happens with other
side, there must be injury in the mind of
such person and therefore this cannot be
refuted in the present scenario, also as the
applicant no. 1 is uncle and the deceased
was living with him and once she was shot
dead, there would have been mental agony
and harm in the mind of the applicant no. 1
and therefore, undoubtedly he must come
under the purview of definition of victim as
has been envisaged under section 2(wa) of
CrPC and thus, the second question is also
answered positively.

30. So far as the third question
with respect to jurisdiction of a Criminal
Court in a criminal proceeding for revising
or reviewing the judgement or order is
concerned, the law is well settled that such
an order or judgement cannot be revised by
the same court unless otherwise provided in
any law time being in forced or any
direction or order passed by the superior
courts and in the present matter in absence
of any such provisions or directions, the
learned Sessions Court had no power to
revisit/revise the order passed by the
predecessor judge, while accepting the
application of the applicant for allowing
him to participate in the trial proceedings.

31. In view of the above said
submissions and discussions as well as the
law laid down by the Apex Court, there is
merit in the instant application. Resultantly,
the impugned order dated 26.05.2023
passed by Additional Sessions Judge - IV,
Lucknow in S.T. No. 375 of 2007 arising
out of Case Crime No. 25 of 2005 is here
by set-aside.

32. The learned Trial court is
directed to act upon as per the earlier order
of the predecessor Judge by which the
7 All. Salman Hashmi Vs. State of U.P.
681
present applicants were allowed to appear
through
their
counsels
in
the
trial
proceedings

33. This court expects that the
learned trial Court shall positively allow
the applicants through their counsel in the
trial proceeding and would try to conclude
the trial.

34. Further, the applicants are also
directed, not to seek any adjournment and
shall cooperate with the trial proceedings,
by concluding their arguments at the
earliest.

35. With the aforesaid observation
and directions, the instant application is
here by allowed.
----------
(2023) 7 ILRA 681
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.07.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Criminal Misc. Bail Application No. 9143 of 2023

Salman Hashmi ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ayodhya
Prasad
Mishra
A.P.
Mishra,
Jaylaxmi Upadhyay, Rituraj Mishra

Counsel for the Opposite Party:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic Substances Act, 1985
-
Sections12 & 23-no allegation except for the
confessional St.ment -alleged recovery of
Tramadol-offence u/s 12 cannot be said to be
made out merely by recovery at the instance
and pointing out the applicant -as alleged in the
FIR-requirements of Section 23 prima-facie not
fulfilled - once the allegations of Section 12 are
not made out-prima-facie the offence u/s 24 not
sustainable in the trial no criminal antecedent -
entitled to be enlarged on bail. (E-9)

List of Cases cited:

1. U.O.I. Vs Balmukund & ors.2009 (12) SCC
161

2. Mohd Muslim @ Hussain vs St. (Nct Of Delhi)
2023 Live Law (SC) 260

3. Ranjitsingh Brahmajeetsing Sharma Vs St. of
Mah. & anr.(2005) 5 SCC 294.

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned counsel for the
applicant and learned AGA for the State as
well as perused the record.

2. The FIR in question was lodged as
Case Crime No.0178 of 2023 under
Sections 419, 420 IPC read with Section 66
of Information Technology Act and under
Section 12, 23, 24 of NDPS Act at P.S.-
Wazirganj, District-Lucknow. The version
as contained in the FIR on record reveals
the recovery of 370 strips of allegedly
prohibited drug Tramadol besides the cash,
mobile, laptop, vehicle Mahindra Scorpio
as well as one scooty was seized by the
department. The allegation in FIR reveals
that information was recieved that around
Lucknow,
the
prohibited
intoxicated
medicines were being sold online and were
being purchased online and huge money
was being made out of said business. Based
on the said information, a team was
constituted and on the basis of information
received from the Mukhbir that the said
business was being carried out online
through a call centre. A team was
constituted comprising of as many as 6 to 7
persons.
It
further
records
that
on