# Pramod Tyagi (In Jail) v. State of U.P. and Anr

- **Citation:** (2019) 1 ILRA 886
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-14
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-tyagi-in-jail-v-state-of-u-p-and-anr-44494
- **Pages:** 5

## Headnote

Act
-
Section
256
-
discretion
must
be
exercised judicially and fairly without
1 All. Pramod Tyagi Vs. State of U.P. and Anr.
887
impairing the cause of administration of
criminal justice. Accused acquitted due
non-appearance
of
the
appellant
under section 256 Cr.P.C.- Criminal
Appeal filed.(Para 3)
There are two conditions under Section 256 Cr.P.C.
first, if the court thinks that in a situation it is
proper to adjourn the hearing then the magistrate
shall not acquit the accused. Second is, when the
court notices that the complainant is absent on a
particular day the court must consider whether
personal attendance of the complainant is
essential on that day for progress of the case and
also whether the situation does not justify the
case being adjourned to another date due to any
other reason. The discretion must therefore be
exercised judicially and fairly without impairing the
cause of administration of criminal justice.
The Magistrate should not have acquitted the
opposite party no.2 exercising the power
under Section 256 Cr.P.C. in the peculiar facts
of the case. Therefore, the impugned order
set-aside accordingly.
(Para 14 & 15)

The criminal appeal allowed. (E-2)

## Text

886 INDIAN LAW REPORTS ALLAHABAD SERIES
Dharmendra Kumar (supra), wherein
this Court had interfered in the selection
process after the result had been declared,
in the said case, the locus of the petitioner
to file a petition after participating in the
selection had been raised but the same
was negated by this Court on the ground
that the grievance of the unselected
candidates was with relation to the
rounding of marks that had been done by
the respondents without existence of any
such provision in the service rules. Thus,
the service rule had itself been violated by
the respondents while conducting the
selection. This would be apparent from a
perusal of the following observations
made by the Division Bench of this Court,
which, for the sake of convenience, are
reproduced below:-

"18. In the instant case, what we find
is that challenge to any rule or
prescription or criteria or procedure for
selection was not made by the petitioners
before the learned Single Judge. What
was assailed before the learned Single
Judge was the manner in which the
selection was held which according to the
petitioners was contrary not only to the
Service Rules, 2008 but also to the
Instructions Manual. It was contended by
the petitioners before the learned Single
Judge that application of rounding off
marks was not permissible in absence of
any such provision in the Service Rules,
2008 or in the Instructions Manual. They
had also contended that calling of
candidates more than three times the
vacancies for the purpose of group
discussions was also in violation of Rule
15(f) of the Service Rules, 2008 and
Clause 2.7 of the Instructions Manual.

19. In the aforesaid view of the
matter, we are not impressed by the
submissions made in regard to the locus
of the petitioners for challenging the
selection. We are, thus, in agreement with
the view recorded by learned Single
Judge, in this regard, in the judgment and
order under appeal. "

20. In the present case, there is no
averment of violation of the service rules
or Rule 8 of the Rules, 2001 rather the
violation is alleged of the Government
order dated 19.08.2014 which, as already
indicated above, can at the most be
considered to be only directory and not
mandatory. Hence, the aforesaid judgment
of
Dharmendra
Kumar
(supra)
is
distinguishable and would not have any
application in the facts of the present case.

21. Accordingly, taking into
consideration the aforesaid discussion,
no case for interference is made out.
The writ petition is dismissed.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.08.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Criminal Appeal (U/S 378(4) of Cr.P.C.) No. 8
OF 2019

Pramod Tyagi ...Appellant (In Jail)
Versus
State of U.P. and Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Veerendra Kumar Shukla, Sri Pawan
Kumar Tiwari.

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

A.
Negotiable
Instruments
Act
-
Section
256
-
discretion
must
be
exercised judicially and fairly without
1 All. Pramod Tyagi Vs. State of U.P. and Anr.
887
impairing the cause of administration of
criminal justice. Accused acquitted due
non-appearance
of
the
appellant
under section 256 Cr.P.C.- Criminal
Appeal filed.(Para 3)
There are two conditions under Section 256 Cr.P.C.
first, if the court thinks that in a situation it is
proper to adjourn the hearing then the magistrate
shall not acquit the accused. Second is, when the
court notices that the complainant is absent on a
particular day the court must consider whether
personal attendance of the complainant is
essential on that day for progress of the case and
also whether the situation does not justify the
case being adjourned to another date due to any
other reason. The discretion must therefore be
exercised judicially and fairly without impairing the
cause of administration of criminal justice.
The Magistrate should not have acquitted the
opposite party no.2 exercising the power
under Section 256 Cr.P.C. in the peculiar facts
of the case. Therefore, the impugned order
set-aside accordingly.
(Para 14 & 15)

The criminal appeal allowed. (E-2)
(Delivered by Hon'ble Rajul Bhargava, J.)

1. As per the officer report dated
15.2.2019, notice issued to opposite party
no.2 was received personally. Thereafter,
several dates were fixed and no one
appeared on behalf of opposite party no.2
despite service of notice. The Court has
no option but to decide the appeal with
the assistance of learned counsel for the
applicant and learned A.G.A. for the
State.

2. Heard Sri Pawan Kumar
Tiwari,
learned
counsel
for
the
applicant as well as learned A.G.A.
for the State and perused the record.

3. Since, no response has been filed
by opposite party no.2 on the leave to
appeal application, the Court with the
assistance of learned counsel for the
applicant and learned A.G.A. has gone
through the record and the Court is of the
opinion that it is a fit case for grant of
leave to appeal.

4.

Accordingly,
the
present
application for leave to appeal is allowed.

5. Now, the Court proceeds to
dispose of the appeal on merits.

6. The present criminal appeal has
been filed against the judgement and
order dated 30.10.2018 passed by learned
Additional Civil Judge (Senior Division)-
IIIrd, Ghaziabad passed in Complaint
Case No.225 of 2017 (Pramod Tyagi v.
M/s Ptatinum Facility & Management
Services),
under
Section
138
of
Negotiable
Instruments
Act,
P.S.
Muradnagar,
District-
Ghaziabad,
whereby the learned Magistrate acquitted
the accused-opposite party no.2 under
Section 256 Cr.P.C. on account of
absence of applicant-complainant on that
date.

7. Brief facts of the case are that the
applicant filed a complaint under Section
138 N.I. Act against the opposite party
no.2 along with the requisite documents
after compliance of mandatory provisions
as contained under the aforesaid Sections
before the Magistrate. The court issued
summons to opposite party no.2 fixing
24.7.2017
for
his
appearance.
On
24.7.2017 both the parties were not
present and the case was posted for
18.9.2017 for appearance of opposite
party no.2 as well as the applicant. In the
meantime, opposite party no.2 appeared
before the court and was granted bail on
13.9.2017. In para 10 of the affidavit filed
in support of the appeal, it is stated that
opposite party no.2 continued to seek
888 INDIAN LAW REPORTS ALLAHABAD SERIES
adjournments and ultimately on 26.7.2018
non-bailable warrant was issued against
opposite party no.2. On 16.8.2018, the
opposite party no.2 appeared before the
court for recalling the non-bailable
warrant and the court recalled the order
issuing non-bailable warrant on opposite
party no.2 furnishing a personal bond of
Rs.20,000/- and next date was fixed on
11.9.2018. On 11.9.2018, exemption
application was moved on behalf of the
applicant and the accused-opposite party
no.2 and then the case was fixed for
23.10.2018 on which date the applicant
remained absent and the court fixed
30.10.2018. On 30.10.2018 as neither the
applicant-complainant nor the opposite
party no.2-accused was present and, thus,
the court while recording that the first
informant is absent and in exercise of
power under Section 256 Cr.P.C., the
proceedings of complaint case were
dropped and the accused-opposite party
no.2 was acquitted.

8. Submission of the learned counsel
for the applicant is that the impugned
order dated 30.10.2018 is out and out
illegal for two reasons. Firstly, that on
11.9.2018 exemption application was
moved on behalf of the applicant and
accused-opposite party no.2 and the next
date fixed was 23.10.2018 for evidence.
The
counsel
for
the
applicant
inadvertently noted that next date fixed
was 23.11.2018 in his advocate diary
whose photostat copy has been annexed
as Annexure-2 to the affidavit. At present,
there is no rebuttal as opposite party no.2
has not put an appearance or has engaged
any counsel. It is further argued that since
a wrong date was noted by his lawyer, the
applicant neither appeared on 23.10.2018
nor on 30.10.2018 on which date the
learned Magistrate on account of absence
of the applicant-complainant acquitted the
accused-opposite party no.2 under Section
256 Cr.P.C. It has been argued that there
was no wilful default on the part of the
applicant in not appearing on 30.10.2018.

9. For appreciating the second
submission of learned counsel for the
applicant, Section 256 Cr.P.C. is quoted
as under:-

"256. Non- appearance or
death of complainant.

(1) If the summons has been
issued on complaint, and on the day
appointed for the appearance of the
accused, or any day subsequent thereto to
which the hearing may be adjourned, the
complainant
does
not
appear,
the
Magistrate
shall,
notwithstanding
anything hereinbefore contained, acquit
the accused, unless for some reason he
thinks it proper to adjourn the hearing of
the case to some other day: Provided that
where the complainant is represented by a
pleader or by the officer conducting the
prosecution or where the Magistrate is of
opinion that the personal attendance of
the complainant is not necessary, the
Magistrate
may
dispense
with
his
attendance and proceed with the case.

(2) The provisions of sub-
section (1) shall, so far as may be, apply
also to cases where the non- appearance
of the complainant is due to his death."

10. Learned counsel has argued that
impugned order and order-sheet reflect
that the accused-opposite party no.2 was
also not present on 30.10.2018 and, thus,
in view of the proviso of Section 256
Cr.P.C. that where the complainant is
represented by a pleader or by the officer
conducting the prosecution or where the
Magistrate is of opinion that the personal
1 All. Pramod Tyagi Vs. State of U.P. and Anr.
889
appearance of the complainant is not
necessary, the Magistrate may dispense
with his attendance and proceed with the
case. It is argued that on 30.10.2018
merely because the applicant-complainant
was not present, the learned Magistrate
should not have acquitted the accused
under
Section
256
Cr.P.C.
without
recording that the personal attendance of
the complainant was necessary on that
date and as already stated above that the
accused-opposite party no.2 was also not
present and even if the applicantcomplainant had appeared on that date,
his statement could not have been
recorded in absence of the accused or his
counsel.

11. This Court is also of the view
that the purpose of including the provision
in the nature of 256 Cr.P.C. is to afford
some deterrence against dilatory tactics
on the part of a complainant who set the
law in motion through his complaint. An
accused who is per force to attend the
court on all posting days can be put to
much harassment by a complainant if he
does not turn up to the court on occasions
when his presence is necessary. The
section, therefore, affords protection to an
accused against such tactics of the
complainant. But that does not mean if the
complainant is absent, the court has a duty
to acquit the accused in invitum.

12. The bare reading of the Section
in its entirety would reveal that two
constraints are imposed on the court for
exercising the power under the Section.
First is, if the court thinks that in a
situation it is proper to adjourn the
hearing then the magistrate shall not
acquit the accused. Second is, when the
magistrate
considers
that
personal
attendance of the complainant is not
necessary on that day the magistrate has
the
power
to
dispense
with
his
attendance and proceed with the case.
When
the
court
notices
that
the
complainant is absent on a particular
day the court must consider whether
personal attendance of the complainant
is essential on that day for progress of
the case and also whether the situation
does not justify the case being adjourned
to another date due to any other reason.
If the situation does not justify the case
being adjourned the court is free to
dismiss the complaint and acquit the
accused. But if the presence of the
complainant on that day was quite
unnecessary then resorting to the step of
axing down the complaint may not be a
proper exercise of the power envisaged in
the section. The discretion must therefore
be exercised judicially and fairly without
impairing the cause of administration of
criminal justice.

13. While considering the situation
of the case as on 30.10.2018, from the
facts narrated above, I have no manner of
doubt that the learned Magistrate should
not have resorted to the axing process,
particularly in view of the fact that the
accused was also not present on that date
and, therefore, he could very well have
adjourned the hearing of the case to some
other day and may have dispensed with
his attendance.

14. In view of above, the learned
Magistrate should not have acquitted
the opposite party no.2 exercising the
power under Section 256 Cr.P.C. in
the
peculiar
facts
of
the
case.
Therefore, the impugned order of
acquittal dated 30.10.2018 passed by
learned Additional Civil Judge (Senior
Division)-IIIrd,
Ghaziabad
in
the
890 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid complaint case is, hereby,
set-aside.

15. The present criminal appeal
is, accordingly, allowed.

16. The learned Magistrate shall
issue notice to both the sides to appear on
a particular date fixed and would proceed
further from the stage where it has
reached before the order of acquittal was
passed
and
decide
the
case
as
expeditiously
as
possible
preferably
within a period of six months from the
date of production of certified copy of this
order, if there is no legal impediment.

17.

Office
is
directed
to
communicate the order to the court
concerned.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4657 OF 2003

Guru Baksh Singh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
In
Preson,
From
Jail,
Sri
Noor
Mohammad, Sri Pratap Kanchan Singh, Sri
Shiv Vilas Mishra (A.C.)

Counsel for the Opposite Party:
Sri Rishi Chadha (A.G.A.)

A. Indian Penal Code, 1860-Section 302Conviction-Accused/Appellant Continuously
inflicted blows of sword on victim who
sustained serious injuries and succumbed
to death on spot-medical evidence shows
that the death of the victim might have
occurred due to ante-mortem injuries at
the time as alleged by prosecutionaccused/appellant in his statement under
section 313 criminal procedure code,1973
has given reply that witnesses gave false
statements but he did not suggest
anything as to why PW1, PW2, CW1,CW3,
CW4 and CW5 gave false statement
against him. Therefore, there cannot be
any hesitation that accused committed
murder
by
causing
several
injuriesconviction
order
confirmed-Appeal
dismissed.

Held: Para 2, 22, 43 and 44

Case Law Discussed: -
(2012) 3 SCC 196, (2007) 14 SCC 150
(2002) 9 SCC 537, (2012) 4 SCC 124
AIR 2009 SC 152, AIR 2009 SC 331
(2009) 11 SCC 334, (2014) 7 SCC 323
(1990) 4 SCC 731, (2005) 5 SCC 554
(1996) 2 SCC 175, (2010) 12 SC 287 (E-6)

(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. This Jail Appeal has been filed by
accused-appellant Guru Baksh Singh
through Senior Superintendent Central
Jail, Agra against judgement and order
dated 03.08.2002 passed by Additional
Sessions Judge, Court No. 8, Meerut in
Sessions Trial No.552 of 1999 (State v.
Guru Baksh Singh) under Section 302
IPC, Police Station Hastinapur, District
Meerut, convicting accused-appellant and
sentencing
him
to
undergo
life
imprisonment and fine Rs. 1000/- and in
default of payment of fine, six months
additional imprisonment.

2. Factual matrix of the case as
emerging from First Information Report
(hereinafter referred to as "FIR") as well
as material placed on record is as follows.

3. A written report Ex. Ka-1 dated
20.3.1999 was presented by PW-1,