# Pawan Kumar and others. Revisionists v. State of U.P. And another

- **Citation:** (2013) 1 ILRA 282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-06
- **Case number:** Criminal Revision No. 217 of 2013
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-and-others-revisionists-v-state-of-u-p-and-another-42482
- **Pages:** 3

## Headnote

Code=Section397/401-Revision- Against rejection of
discharge
Application-on
ground-for
same allegation two prosecution can not
be -held-in view of provisions contained
in Section 210(2) no bar-both can go
simultaneously-revision
dismissed-with
liberty
to
move
application
before
magistrate itself.

Held: Para-9

From the aforesaid provision, it is clear
that on the basis of same facts, a
complaint as well as the police case can
both be tried together as State case and
there is no bar against criminal case
being prosecuted by complainant. It
would
be
appropriate
that
the
revisionists shall move an application
before the Magistrate concerned making
an appropriate prayer in terms of Section
210(2) Cr.P.C.

## Text

282 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

6.

Admittedly,
the
present
proceedings before the lower court arose
out of the proceedings under U.P.Act
no.13 of 1972 (in short referred to as 'Act'
hereinafter). Undisputedly, by virtue of
Rule 22-d of the Rules framed thereunder,
the provisions of Code of Civil Procedure
applies in respect of the power to allow an
amendment application.

7. The provisions for amendment in
the pleadings have been provided in the
Code of Civil Procedure in its Order 6
Rule 17 which after its amendment by Act
no.22
of
2002
with
effect
from
01.07.2002 read as under :-

"17. Amendment of pleadings:- The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such
terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real question in controversy between
the parties;

Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the Court comes
to the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial."

8. The plain reading of the aforesaid
provisions of Order 6 Rule 17 makes it
clear that not only the nature of proposed
amendment should be necessary for
determining
the
real
question
in
controversy between the parties but it
must also be shown that in spite of due
diligence, the party was not able to raise
the matter before the commencement of
the trial.

9. In the memo of the writ petition not
a single word is there on behalf of the
petitioner as to why he could not have raised
the matter covered by proposed amendment
before commencement of the trial.

10. The impugned order passed by the
lower court also discloses that there is a
specific finding recorded by the lower court
that the proposed amendment was merely the
repetition of the facts already mentioned in
the written statement. As such it was not at
all
necessary
for
deciding
the
real
controversy between the parties.

11.

From
the
facts
and
circumstances of the case, it also appears
that the amendment application moved by
the petitioner in appeal for making
amendment in the written statement
which was filed before the trial court was
nothing but simply a device to delay the
further proceedings of the case.

12. In the above facts and
circumstances, no illegality or infirmity is
found to have been caused by the lower
court in passing the impugned order.

13. The writ petition, therefore,
being devoid of any merits, is hereby
dismissed with costs.
---------
 RIVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2013

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Revision No. 217 of 2013

Pawan Kumar and others. ..Revisionists
 Versus
State of U.P. And another...Opposite Parties
1 All] Pawan Kumar and others Vs. State of U.P. And another
283
Counsel for the Petitioners:
Md. Imran Khan
Counsel for the Respondents:
A.G.A.

Criminal
Procedure
Code=Section397/401-Revision- Against rejection of
discharge
Application-on
ground-for
same allegation two prosecution can not
be -held-in view of provisions contained
in Section 210(2) no bar-both can go
simultaneously-revision
dismissed-with
liberty
to
move
application
before
magistrate itself.

Held: Para-9

From the aforesaid provision, it is clear
that on the basis of same facts, a
complaint as well as the police case can
both be tried together as State case and
there is no bar against criminal case
being prosecuted by complainant. It
would
be
appropriate
that
the
revisionists shall move an application
before the Magistrate concerned making
an appropriate prayer in terms of Section
210(2) Cr.P.C.

(Delivered by Hon'ble S.C. Agarwal, J)

1. Supplementary affidavit filed
today is taken on record.

2. Heard learned counsel for
revisionists and learned AGA for the
State.

3. There is no need to issue notice to
opposite party no.2, Smt. Namita, the
complainant.

4. This revision under Section 397,
401 Cr.P.C. is directed against the order
dated 20.11.2012 passed by Judicial
Magistrate, Court No.2, Muzzafarnagar in
Crl. Complaint Case No.2/9 of 2012 (Smt.
Namita Vs. Pawan Kumar and ors) under
Sections 498A, 323, 504, 506 IPC and 3/4
D.P. Act, P.S. Meerapur, District whereby
the application under Section 245 (2)
Cr.P.C. praying for discharge has been
rejected.

5. The grievance of the revisionists
is that in respect of the same incident and
on the basis of same cause of action, the
complaint case has been filed and First
Information Report was also lodged
against the revisionists wherein, after
investigation, charge sheet has been
submitted by police.

6. The contention is that two
prosecutions on the same grounds cannot
proceed
simultaneously
and
the
Magistrate ought to have discharge the
revisionists in the complaint case.

7. Learned AGA supported the
impugned orders. There is no bar in the
Court of criminal procedure for trial of an
accused in a police case as well as in a
complaint case on the basis of same facts.

8. This fact has been taken care of
by Section 210(2) Cr.P.C. which provides
as under:-

" If a report is made by the
Investigating Officer police Officer under
Section
173
and
on
such
report
cognizance of any offence is taken by the
Magistrate against any person which an
accused in the complaint case, the
Magistrate shall inquire into or try
together the complaint case and case
arising out of police report as if both the
cases were instituted on a police report."

9. From the aforesaid provision, it is
clear that on the basis of same facts, a
complaint as well as the police case can
both be tried together as State case and
284 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
there is no bar against criminal case being
prosecuted by complainant. It would be
appropriate that the revisionists shall
move an application before the Magistrate
concerned making an appropriate prayer
in terms of Section 210(2) Cr.P.C.

10. As far as the question of
discharge is concerned, there is sufficient
material in the statement as recorded
under Sections 200 and 202 Cr.P.C. to
warrant trial of the revisionists for the
offences for which they have been
summoned.

11. No case for discharge is made
out. The application for discharge has
been rightly rejected. I find no good
ground to interfere in the matter.

12. The revision is dismissed with
liberty to the revisionists to move an
application under Section 210(2) Cr.P.C.
before the Magistrate concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2013.

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE RAM SURAT RAM
(MAURYA), J.

Civil Misc. Writ Petition (TAX) No. 362 OF
2011.

Civil Aviation Training College, Bamrauli,
Allahabad
 ...Petitioner

Versus

The State of U.P. And others ...Respondents

Counsel for the Petitioner:
Sri S. Shekhar, Sri V.K. Singh
Counsel for the Respondents:
C.S.C.
Sri Rakesh Bahadur
Sri S.K. Gupta

U.P. Municipal Corporation Act 1959Section
175(1)readwith
U.P.
Water
Supply and Sewage Act 1975- demand of
water
tax-petitioner
being
airport
authority-imparting
training
in
field
airport management, air traffic control
and
navigation
surveillance
services
including
dwelling,
houses,
offices,
hotels, hospitals etc. spread over about
16 hundred ares.-Gate of institutions
situated at distance of 5.80 meter from
the point of walking distance-demand of
water tax as building existed withing
hundred meters radius of water supply
point-petitioner having own source of
water
and

power
supply-hence-no
question of payment of water tax at
12.5%
of
annual
letting
value
of
property-the
petitioner's
request
to
identify the building with the described
radius-remain
untouched-held-without
joint inspection demand of water tax at
highest rate-not proper-demand notice
quashed-necessary direction given.

Held: Para-31

One acre consists of 4,840 sq. yards and
is equivalent to 4046.856 sq. meters. The
area of the plot is 116 acres which is
equivalent
to
561440
sq.
yards
=
4,69,435.296 sq. meters. In pursuance of
the direction given in the earlier writ
petition by this Court, a joint spot
inspection
was
carried
on
28th
December, 2010 by the officials of the
respondents and in the presence of the
officials
of
the
petitioner.
It
finds
mention in para 5 of the impugned order
that the entrance gate of the petitioner's
campus is at 5.80 meters from the water
stand point and the water tax has been
levied on this premises alone. This itself
is suggestive of the fact that only a very
small portion/insignificant area of the
petitioner's campus falls within the