# Ram Bachan & Anr Revisionists v. State of U.P. & Anr

- **Citation:** (2014) 1 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-17
- **Case number:** Criminal Revision No. 1028 of 2011
- **Bench:** Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bachan-anr-revisionists-v-state-of-u-p-anr-42961
- **Pages:** 3

## Headnote

order-complaint
case-argument
that
unless all witness as well as complainant
not examined as per section 202(2)-where
offence traible by Session Court-can not be
summoned-held-examination
of
all
witnesses-not a condition precedent for
issuance of process-named in complaintno
interference
called
far-revision
dismissed.

Held: Para-8-
The Apex Court in Shivjee Singh Vs.
Nagendra Tiwary reported in 2010 7 SCC
578
has further clarified the legal
position. The Apex Court has held that
examination of all witnesses cited in the
complaint is not a condition precedent
for issuance of process against the
persons
named
as
accused
in
the
complaint.
1 All] Ram Bachan & Anr. Vs. State of U.P. & Anr.
163
Case Law discussed:
1981 ALJ 344; 1985 ALJ 348; 1991 ALJ 569;
2010 7 SCC 578.

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES

22. So far as the calculation of
undergone period of the accused appellant
is concerned, the record reveals that the
accused
appellant
was
arrested
on
05.10.2000 and in this regard, an entry
was made in General Diary no.61 at 20.30
hours by the police at Police Station
Wazirganj. When he was arrested, he was
having injuries in his legs and was unable
to move, therefore, the appellant was
released on bail from the police station on
the next day. Thereafter he did not seek
any regular bail from the court concerned.
The case was also committed to the court
of sessions without getting any bail.
Therefore, before conviction, he did not
remain in jail for a single day. However,
when he was convicted in this case, he
was taken into custody on 20.02.2013 and
since then he is in jail. After judgment
and order dated 20.02.2013 passed by the
trial court, the appellant served out more
than eleven months period of his sentence
as a convict.

23. Considering the facts and
circumstances of the case, the appeal is
partly allowed. The conviction of the
appellant Santosh Kumar Shukla is set aside
under Section 326 IPC and is acquitted
from the charges levelled under Section 326
IPC but he is convicted under Section 324
IPC and is sentenced for the period
undergone and fine of Rs.10,000/-. In
default of payment of fine, the appellant
will further undergo imprisonment of one
month. After realization of fine, a sum of
Rs.7500/- shall be paid to the injured of this
case. The sentence awarded to the appellant
is accordingly reduced to meet the ends of
justice in the light of the order passed by
this Court.

24. Let a copy of this judgement be
sent to the trial court and also to Chief
Judicial
Magistrate,
Lucknow
for
compliance of the order passed by this
Court without any delay.

25. The Senior Registrar of this
Court shall ensure the compliance of this
order forthwith.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2014

BEFORE
THE HON'BLE BHARAT BHUSHAN, J.

Criminal Revision No. 1028 of 2011

Ram Bachan & Anr.... Revisionists
Versus
State of U.P. & Anr.... Respondents

Counsel for the Petitioner:
Sri Ajeet Kumar Singh, Sri Shashi Prakash
Rai, Ms. Archita Raghuvanshi, Km. Harshita
Raghuvanshi

Counsel for the Respondents:
A.G.A., Sri Sharad Srivastava

Criminal
Revision-Against
summoning
order-complaint
case-argument
that
unless all witness as well as complainant
not examined as per section 202(2)-where
offence traible by Session Court-can not be
summoned-held-examination
of
all
witnesses-not a condition precedent for
issuance of process-named in complaintno
interference
called
far-revision
dismissed.

Held: Para-8-
The Apex Court in Shivjee Singh Vs.
Nagendra Tiwary reported in 2010 7 SCC
578
has further clarified the legal
position. The Apex Court has held that
examination of all witnesses cited in the
complaint is not a condition precedent
for issuance of process against the
persons
named
as
accused
in
the
complaint.
1 All] Ram Bachan & Anr. Vs. State of U.P. & Anr.
163
Case Law discussed:
1981 ALJ 344; 1985 ALJ 348; 1991 ALJ 569;
2010 7 SCC 578.

(Delivered by Hon'ble Bharat Bhushan, J.)

(1) This criminal revision is directed
against the summoning order dated
8.12.2010 passed by Xth Civil Judge
(Junior Division) Gorakhpur in Criminal
Case No. 26/2010 (Ram Chela Vs. Ram
Bachan)
whereby
revisionists
Ram
Bachan
and
Sadanand
have
been
summoned to face trial under Sections
435, 436, 429, 427& 506 IPC.

(2) Brief facts of the criminal revision
are that opposite party no. 2, Ram Chela
lodged FIR stating that on 21.2.2010 at about
2:30 am revisionists/accused lit fire upon the
house of complainant/opposite party no. 2,
completely burning the household goods and
his pet animals including 8 months old calf.
Thus, they destroyed goods worth rupees one
lakh. The matter was investigated and a
closure report dated 17.4.2010 was filed in
the court. Meanwhile complainant filed a
criminal complaint for the same incident in
the court of additional judicial Magistrate Ist
Ghazipur. The statement of complainant was
recorded under Section 200 Cr.P.C. The
statement of two witnesses, namely, Benchu
and Upendra were also recorded and
thereafter the impugned summoning order
was passed on 8.12.2010 against the
revisionists.

(3) Aggrieved, accused persons
namely, Ram Bachan and Sadanand have
preferred the present criminal revision
primarily on the ground that evidence of
all witnesses was not recorded under the
proviso to Section 202 (2) Cr.P.C. which
provides that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the court of
sessions
he
shall
call
upon
the
complainant to produce all his witnesses
and examine them on oath.

(4) Heard Sri Shashi Prakash Rai
holding
brief
of
Ms.
Archita
Raghuvanshi, learned counsel for the
revisionist, Sri Sharad Srivastava, learned
counsel for opposite party no. 2 and
learned AGA for the State.

(5) Learned counsel for the revisionists
has pointed out that offence under Section
436 Cr.P.C. is exclusively triable by the
Sessions Court, therefore, it was incumbent
upon the Magistrate to record testimonies of
all witnesses in terms of proviso 202 (2)
Cr.P.C.
He has relied upon several
judgments of this Court in Dinesh Chand
Sinha Vs. Rahmatullah and another 1981
ALJ 344, Bhagwan and others Vs. Kishan
Singh 1985 ALJ 348, Dharamveer and others
Vs. State of U.P. And others 1991 ALJ 569.
Learned counsel for the revisionist has
argued that the word 'shall' employed in
proviso to Section 202 (2) Cr.P.C. indicates
mandatory character of this provision. As
learned Magistrate passed the impugned
order without recording testimonies of all
witnesses. The same cannot be sustained.

(6) A perusal of criminal complaint
would show that the name of Bechu and one
Kamlesh have been mentioned in the
complaint. The statement of Bechu was
recorded
during
inquiry
along
with
complainant. Additional statement of one
Upendra was also recorded. The judgment of
this Court in Bhagwan and others (supra)
relied by learned counsel maintains that
complainant has a right to examine only
those witnesses upon whom he intended to
rely. A careful examination of F.I.R. reveals
that name of witnesses were not mentioned
in it. Complaint reveals the name of only two
164 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses namely, Bechu and one Kamlesh
and a general statement to the effect that
witnesses helped him to extinguish the fire.
The learned Magistrate examined three
witnesses before passing the impugned order.
Apparently, only Kamlesh was not produced.

(7) Learned revisionist has claimed
that non examination of Kamlesh would
vitiate the summoning order. I am afraid that
the learned counsel for revisionist is giving
too much emphasis to the word 'shall'
employed in proviso 202 (2) Cr.P.C. because
the proviso entails that Magistrate shall call
upon the complainant to produce all his
witnesses and examine them on oath. The
word
'his
witnesses'
is
not
without
significance. It denotes that complainant can
choose his witnesses and can adduce the
testimony of only those witnesses upon
whom he intends to rely.

(8) The Apex Court in Shivjee Singh
Vs. Nagendra Tiwary reported in 2010 7
SCC 578 has further clarified the legal
position. The Apex Court has held that
examination of all witnesses cited in the
complaint is not a condition precedent for
issuance of process against the persons
named as accused in the complaint. The
Apex Court has held thus:

As a sequel to the above discussions,
we hold that examination of all the
witnesses cited in the complaint or whose
names are disclosed by the complainant
in furtherance of the direction given by
the Magistrate in terms of proviso to
Section 202(2) is not a condition
precedent for taking cognizance and issue
of process against the persons named as
accused in the complaint and the High
Court
committed
serious
error
in
directing the Chief Judicial Magistrate to
conduct further inquiry and pass fresh
order in the light of proviso to Section
202 (2).

(9) In view of the aforesaid
judgment of the Apex Court, present
revision is not sustainable and liable to be
rejected.
The
criminal
revision
is
accordingly dismissed.

(10) Let a copy of this order be sent
to the concerned trial court within fifteen
days for compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHOK PAL SINGH, J.

Service Bench No. 1699 of 2008

Dr. Pramod Kishore Sharma... Petitioner
Versus
State of U.P. .... Respondent

Counsel for the Petitioner:
Sri Anil Kumar Tiwari, Sri I.P. Singh
Sri V.S. Tripathi

Counsel for the Respondents:
C.S.C.

Financial Hand Book-Volume II to IVRule 81-B-(2)- Grant of medical leave-for
exceeding 12 month-through out service
carrier-medical
board
already
recommended
for
medical
leave-not
open for government to sit over on
opinion of medical board-taking different
view contrary to provisions of financial
hand book-not sustainable-direction for
fresh consideration issued.

Held: Para-10
It is well settled proposition of law that
the proviso contained in statutes are the
exceptions to main provisions and in