# Rama Sharan Pandey & Ors v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-15
- **Case number:** Application U/S 482 No. 4741 of 2016
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-sharan-pandey-ors-v-state-of-u-p-anr-48137
- **Pages:** 3

## Headnote

(A) Criminal Law-Application u/s 482
Cr.P.C.
-against
Revisional
ordermaintainable-allegation
u/s
406
IPC
alleged against Applicant no.2 and 3 but
all accused summoned -summoning order
must show application of mind-impugned
order
lacks
application
of
mindsummoning order quashed for Applicant
no. 1,4 to 6.

Application partly allowed. (E-9)

List of Cases cited:-

## Text

2 All. Rama Sharan Pandey & Ors. Vs. State of U.P. & Anr.
569
----------
(2022)02ILR A569
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Application U/S 482 No. 4741 of 2016

Rama Sharan Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sunil Kumar, Baljeet Singh

Counsel for the Opposite Parties:
G.A., Anoop Kumar Upadhyay

(A) Criminal Law-Application u/s 482
Cr.P.C.
-against
Revisional
ordermaintainable-allegation
u/s
406
IPC
alleged against Applicant no.2 and 3 but
all accused summoned -summoning order
must show application of mind-impugned
order
lacks
application
of
mindsummoning order quashed for Applicant
no. 1,4 to 6.

Application partly allowed. (E-9)

List of Cases cited:-

1. Jitendra Kumar Jain Vs St. of Delhi & ors.
reported in (1998) 8 SCC 770

2. Dhariwal Tobacco Products Ltd. & ors. Vs St.
of Mah. & anr. , reported in 2009 2 SCC 370

3. Shakuntala Devi & ors. Vs Chamru Mahto &
anr., reported in 2009 3 SCC 310

4. Pepsi Foods Ltd & anr. Vs Special Judicial
Magistrate & ors., reported in 1998 5 SCC
749
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard learned counsel for the
applicants, learned AGA for the State and
perused the record.

2. The present application under
Section 482 Cr.P.C. has been filed to quash
the impugned summoning order dated
29.07.2015
passed
by
the
Judicial
Magistrate
First,
Gonda
in
Criminal
Complaint No. 16 of 2015 (Jitendra Singh
Vs. Ramasharan Pandey & others), Police
Station Paraspur, District Gonda as well as
against the order dated 04.7.2016 passed by
the Additional Sessions Judge/Special
Judge (E.C. Act) Gonda in Criminal
Revision No. 331 of 2015, (Ramasharan
Pandey Vs. State of Uttar Pradesh and
another)
along
with
the
criminal
proceedings of Criminal complaint no. 16
of 2015 pending before the Judicial
Magistrate First, Gonda.

3. Shri Anoop Kumar Upadhyay,
learned counsel for the respondent and
learned AGA have raised a preliminary
objection regarding maintainability of the
present application under Section 482
against the revisional order which is also
under challenge.

4. Learned counsel for the applicants
has submitted that the summoning order
was passed without application of mind. It
is further submitted that by the impugned
summoning order all the applicants were
summoned under Sections 323, 504, 506
and 406 of IPC whereas the offence under
Section 406 has been alleged against Dev
Sharna Pandey and L There is no allegation
or accusation under Section 406 of IPC
against the applicant nos. 1,4,5 and 6 and
the same could be seen from the statement
of complainant under Section 200 Cr.P.C.,
even then the summons have been issued
570 INDIAN LAW REPORTS ALLAHABAD SERIES
against the applicant nos. 1, 4, 5 and 6
under Section 406 IPC also.

5. Learned counsel for the applicants
undertakes that they will cooperate and
participate in the proceedings before the
learned trial court. It is also undertaken that
they will not seek any adjournment.

6. On the other hand, learned AGA
and the learned counsel for the respondents
have submitted that in the complaint there
are allegations against all the applicants
and no specific name has been taken and it
could only be seen during trial.

7. After hearing the respective parties
and perusing the record, it is found that a
person aggrieved from a revisional order
has a remedy to challenge it under Section
482 Cr.P.C. Section 397 (3) Cr.P.C. is to
prevent the second revision so as to avoid
the frivolous litigation whereas in the
present case, it is not a second revision
preferred by the applicants rather it is an
application
challenging
the
revisional
order, which is not barred.

8. The Hon'ble Supreme Court in the
case of Jitendra Kumar Jain Vs. State of
Delhi and others reported in (1998) 8 SCC
770 has held that the powers under Section
397 Cr.P.C. and under Section 482 Cr.P.C.
are distinguishable and separate. Against
the revisional order, scrutiny can be done
by the High Court in exercise of its
jurisdiction under Section 482 Cr.P.C.

9. The Hon'ble Apex Court in the case
of Dhariwal Tobacco Products Limited
and others Vs. State of Maharashtra and
another reported in 2009 2 SCC 370 has
held that even in cases where a second
revision before the High Court after
dismissal of first one by Sessions Judge is
barred under Section 397 (3) Cr.P.C.but the
inherent
power
of
the
Court
is
available.The power of the High Court can
be exercised not only in terms of Section
482 of the Cr.P.C. but also in terms of
Section 483 thereof.

10. Hon'ble Supreme Court in the
case of Shakuntala Devi and others Vs.
Chamru Mahto and another reported in
2009 3 SCC 310 has held that the power of
the High Court to entertain a petition under
Section 482 Cr.P.C. was not subject to the
prohibition under Sub Section 3 of Section
397 Cr.P.C. and the doors to the High
Court to a litigant who had lost before the
Sessions Judge were not completely closed.

11. In the light of the law settled by
the Hon'ble Supreme Court, the present
application
under
Section
482
is
maintainable against the revisional order.

12. The Hon'ble Apex Court in the
case of Pepsi Foods Ltd and another Vs.
Special Judicial Magistrate and others
reported in 1998 5 SCC 749 has held that
summoning of an accused in criminal case
is a serious matter. It is not that the
complainant has to bring only two
witnesses in support of his complaint and to
have the criminal law set into motion. The
summoning order must show that the
magistrate has applied his mind before
passing the summoning order, which is
found to be lacking in the present case as
far as summoning applicant nos. 1, 4, 5 and
6 under Section 406 IPC is concerned as
there is no allegation against the applicant
nos. 1, 4, 5 and 6 for offence under Section
406 Cr.P.C. in the statement of the
complainant under Section 200 Cr.P.C.

13. Taking into consideration the
aforesaid, the present application under
2 All. Vajid Ali Vs. State of U.P. & Anr.
571
Section 482 is partly allowed to the extent
that summoning order dated 29.07.2015 is
hereby set aside as far as it relates with the
applicant nos. 1, 4, 5 and 6 for offence
under Section 406 IPC. Rest of the part of
the impugned summoning order will
remain intact and in force.

14. At this stage, learned counsel for
the applicants has submitted that for the
remaining sections slapped upon the
applicants, he does not want to press the
petition and seeks liberty to file bail
application before the learned trial court
which may be decided in view of law laid
by Hon'ble Supreme Court in order dated
7.10.2021 passed in Petition for Special
Leave to Appeal (Cri) No.5191 of 2021
Satender Kumar Antil versus Central
Bureau of Investigation and another.

15. Learned A.G.A. as well as Shri
Anoop Kumar Upadhyay, learned counsel
for the respondent has no objection to the
prayer made by learned counsel for the
applicants.

16. On due consideration to the
submissions of learned counsel for the
parties', it is provided that in case, the
petitioners appear before the trial court
within ten days' from today and file bail
application, the same shall be decided
expeditiously considering the law laid
down in the case of Satender Kumar Antil
versus Central Bureau of Investigation
and another (supra).

17. The present application under
Section 482 is finally decided in terms, as
indicated above.
----------
(2022)02ILR A571
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.12.2021
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Application U/S 482 No.5541 of 2021

Vajid Ali ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sukh Deo Singh, Pritosh Shukla, Pramod
Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law-During Trial the victim
affirmed her own statement given u/s
164 Cr.P.C.-original statement u/s 164
Cr.p.c. is lost-Application moved by the
Applicant
seeking
time
for
cross
examination-as
in
the
absence
of
statement u/s 164 cr.p.c.-no crossexamination
was
possible-Rejectedimpugned-original statement u/s 164
Cr.P.C. would be required if the victim
resiled from her statement u/s 164
Cr.P.C.-to verify the contents and to
compare them with statement made in
examination in chief-last opportunity
was
given which was not availedimpugned order not unreasoned.

Application rejected. (E-9)

List of Cases cited:-

1. St. of Delhi Vs Shri Ram Lohia, AIR 1960 SC
490

2. Utpal Das Vs St. Of West Ben., AIR 2010 SC
1894

3. R. Shaji VS St. of Ker. 2013 (14) SCC 266

4. 'Jai Prakash Singh Vs St. of Bih. & anr.
decided on 14.07.2006 reported in 2006
Criminal Law Journal 4245

5. Ashok Dulichand Vs Madhavlal Dubey & anr.
1975 (4) SCC 664