# Revisionist v. State of U.P. and another

- **Citation:** (2012) 3 ILRA 1141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-21
- **Case number:** Criminal Revision No. 4959 of 2009
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-and-another-42351
- **Pages:** 4

## Headnote

Govt. Advocate
Sri C.P. Upadhyaya
Sri Vivek Singh

Criminal
Revision-Against
rejecting
objection of applicant-on ground without
following procedure under Section 208
and 209-statement of such witness could
not be recorded-without examination
under Section 202-held-where complaint
lodged by Additional Session Judge for
offence punishable U/S 182/195 I.P.C.-
provision of 202 and 203 not applicable
as such the question compliance of
provisions of Section 208 do not arise.

Held: Para 18

In this case the complaint was lodged by
an Additional Sessions Judge and looking
into the facts and circumstances that the
offence punishable under Section 195
IPC is exclusively triable by the court of
Sessions, the case was committed to the
court
of
Sessions.
In
these
circumstances,
I
do
not
find
any
violation of the provisions of Section 209
of Cr.P.C. Moreover, offence punishable
under Section 195 IPC is exclusively
triable by the court of sessions hence
there was no illegality in committing the
case to the court of sessions. No doubt
Section 209 provides that the case shall
be committed to the court of sessions
after complying with the provisions of
Sections 207 and 208 Cr.P.C. but as
mentioned above, the statements of the
witnesses were not recorded in view of
the fact that the complaint was lodged
by an Additional Sessions Judge in
discharge of his official duties and there
was no need to examine the complainant
as well as witnesses in view of the
provisions of proviso to Section 200
Cr.P.C., the question of compliance of
provisions of Section 208 Cr.P.C. do not
arise.
Case Law discussed:
1980 (17) ACC 165; 1999 (38) ACC 679; 2000
(1) JIC 815 (SC); 1999-JIC -2-554

## Text

3 All] Harapal Singh V. State of U.P. and another
1141
circumstances, it must be held that the
Vice Chancellor acted wholly without
jurisdiction in reviewing the order dated
January 24, 1986 by her order dated
March 7, 1987. The said order of the Vice
Chancellor dated March 7, 1987 was a
nullity."

12. In view of the abovesaid facts,
the order dated 26.7.2004 (Annexure
No.1) passed by Board of Revenue, U.P.,
Lucknow
that
the
Additional
Commissioner has got no power to review
its earlier order dated 26.10.1999 is
perfectly valid, needs no interference by
this Court under Article 226 of the
Constitution of India.

13. For the foregoing reasons, the
writ petition is dismissed. However, as
prayed, the petitioner, if so advised, may
approach appropriate forum for redressal
of his grievances which he has raised in
the present writ petition.
---------
 REVISIONAL JURISDICTION
CRIMIMNL SIDE
DATED: ALLAHABAD 21.09.2012

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 4959 of 2009

Harapal Singh

 ...Revisionist
Versus
State of U.P. and another

 ...Opposite Parties

Counsel for the Petitioner:
Sri Gaurav Kakkar

Counsel for the Respondents:
Govt. Advocate
Sri C.P. Upadhyaya
Sri Vivek Singh

Criminal
Revision-Against
rejecting
objection of applicant-on ground without
following procedure under Section 208
and 209-statement of such witness could
not be recorded-without examination
under Section 202-held-where complaint
lodged by Additional Session Judge for
offence punishable U/S 182/195 I.P.C.-
provision of 202 and 203 not applicable
as such the question compliance of
provisions of Section 208 do not arise.

Held: Para 18

In this case the complaint was lodged by
an Additional Sessions Judge and looking
into the facts and circumstances that the
offence punishable under Section 195
IPC is exclusively triable by the court of
Sessions, the case was committed to the
court
of
Sessions.
In
these
circumstances,
I
do
not
find
any
violation of the provisions of Section 209
of Cr.P.C. Moreover, offence punishable
under Section 195 IPC is exclusively
triable by the court of sessions hence
there was no illegality in committing the
case to the court of sessions. No doubt
Section 209 provides that the case shall
be committed to the court of sessions
after complying with the provisions of
Sections 207 and 208 Cr.P.C. but as
mentioned above, the statements of the
witnesses were not recorded in view of
the fact that the complaint was lodged
by an Additional Sessions Judge in
discharge of his official duties and there
was no need to examine the complainant
as well as witnesses in view of the
provisions of proviso to Section 200
Cr.P.C., the question of compliance of
provisions of Section 208 Cr.P.C. do not
arise.
Case Law discussed:
1980 (17) ACC 165; 1999 (38) ACC 679; 2000
(1) JIC 815 (SC); 1999-JIC -2-554

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard Sri Gaurav Kakkar, learned
counsel for the revisionist and learned
1142 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
A.G.A. for the opposite parties. Sri Vivek
Singh, Advocate has also put in appearance.

2. This criminal revision has been
filed against order dated 5.11.2009, passed
by Additional Sessions Judge (Fast Track
Court No.2), Bijnor in Session Trial No.644
of 2008 (State Vs. Harpal) and against order
dated 26.10.2009.

3. A complaint against the revisionist
was lodged by Sri J.K.S. Negi, the then 4th
Additional
District
Judge,
Bijnor
in
continuation
to
his
judgment
dated
21.11.2000, for the offences punishable
under Section 182/195 I.P.C. The said
complaint was registered by the Chief
Judicial
Magistrate
and
after
taking
cognizance the case was committed to the
court of Sessions. The prosecution wanted
to examine Shiv Kumar as P.W.-1 and
Jodha Singh as P.W.-2, regarding which
objection was taken by the revisionist and
moved
an
application
Kha-19
on
26.10.2009,
which
was
rejected
on
5.11.2009.

4. The main contention of learned
counsel for the revisionist is that the court
has not followed the procedure laid down in
Section 208 and 209 Cr.P.C. and could not
record the statement of such witnesses, who
were not examined under Section 202
Cr.P.C.

5. By this revision, the order dated
26.10.2009 as well as 5.11.2009 have been
challenged. As far as the order dated
26.10.2009 is concerned, the revisionist
instead of cross examining the witnesses,
moved an application Kha-19. The Court
invited
the
objections
of
A.D.G.C.
(Criminal) and fixed 3.11.2009 for disposal.
To my opinion, there is no illegality or
perversity in the order dated 26.10.2009
because by order dated 26.10.2009, the
court
has
not
only
entertained
the
application moved by the revisionist but has
also invited objections from the ADGC
(Criminal). In any case, if any application is
moved and objections are invited, that can
be regarded as a final order and no
grievance has been caused to the revisionist
by the order dated 26.10.2009. Hence the
revision against order dated 26.10.2009 is
not maintainable.

6. As far as the order dated 5.11.2009
is concerned, it is a detailed order and
learned lower court has considered all
aspects of the matter. It is relevant to point
out that the Session Trial No.587 of 1998
"State Vs. Shiv Kumar and another", under
Sections
364
and
307
I.P.C.,
P.S.
Mandavar, District Bijnor was decided by
the then 4th Additional Sessions Judge,
Bijnor (Sri J.K.S. Negi, H.J.S.), who has
acquitted the accused persons and has
clearly drawn a conclusion that the
complainant of that case Harpal Singh had
falsely implicated accused persons Shiv
Kumar and Jodha Singh and had given the
false information to the police. Accordingly,
in judgment itself it was pointed out that
necessary action be taken against Harpal
Singh for lodging false report to the police.

7. In the said continuation, the
Presiding
Officer
(Sri
J.K.S.
Negi)
discharging his official duties had filed a
complaint
before
the
Chief
Judicial
Magistrate. The Chief Judicial Magistrate
after taking cognizance of the matter,
summoned the accused persons. In the trial,
the prosecution examined Shiv Kumar as
P.W.-1 and Jodha Singh as P.W.-2,
regarding which an application in the form
of objection 19-Kha was submitted before
the court concerned.
3 All] Harapal Singh V. State of U.P. and another
1143

8. The revisionist had relied upon
Ram Adhar and another Vs. State of U.P.
another, 1980 (17) ACC 165, in which it
has been held that if a witness has not been
examined under Section 202 Cr.P.C., then
such witness cannot be examined in the
course of trial before the sessions court.

9. In complaint cases, after the
complaint has been presented, the statement
of the complainant is recorded under
Section 200 Cr.P.C. and during the course
of enquiry the magistrate may, if he thinks
fit, take evidence of witnesses on oath.
Proviso to section 202(2) also provides that
if it appears to the magistrate that the
offence complaint is triable exclusively by
the court of sessions, he shall call upon the
complainant to produce all his witnesses
and examine them on oath.

10. It is also relevant to point out that
proviso to Section 200 Cr.P.C. provides that
when the complaint is made in writing, the
Magistrate
need
not
examine
the
complainant and the witnesses if a public
servant acting or purporting to act in the
discharge of his official duties or a court has
made the complaint.

11. In view of proviso to Section 200
Cr.P.C., it was not incumbent upon the
Chief Judicial Magistrate to examine the
complainant and the witnesses.

12. Learned lower court has relied
upon Laxmi Narain Singh Vs. State of
U.P. and others, 1999 (38) ACC 679, in
which it has been held that if a complaint
has been filed by the Judicial Officer, in
discharge of his official duties then
provisions of Section 202 and 203 Cr.P.C.
shall not be attracted and the case will
proceed like a police challani case.

13. Learned lower court has also
relied upon Rozi and others Vs. State of
Kerala and others, 2000 (1) JIC 815 (SC),
in which Hon'ble Supreme Court has held
that if any private person has submitted a
complaint for an offence exclusively triable
by the court of sessions then the objection
must be raised at the first stage.

14. The proviso to Section 200
Cr.P.C. is very much clear which provides
that when the complaint is in writing, the
magistrate need not to examine the
complainant and the witnesses if a public
servant acting or purporting to act in the
discharge of his official duties or a court has
made the complaint.

15. In these circumstances, the
magistrate has not committed any error in
not recording the evidence of witnesses
under Section 202 Cr.P.C. Certainly the
complaint under Section 182/195 IPC has
been filed by the Additional Sessions Judge
in discharge of his official duties and after
recording the findings in the judgment dated
21.11.2000, hence it was not necessary for
the Chief Judicial Magistrate to record the
evidence of witnesses under Section 202
Cr.P.C. and those witnesses can very well
be examined during the course of trial.

16. Learned counsel for the revisionist
has submitted that provisions of Section 208
and 209 Cr.P.C. have been violated. Section
208 deals with the supply of copy of the
statements and documents to accused in
other cases triable by the court of sessions.
Admittedly, the statements of witnesses
were not recorded in view of proviso to
Section 200 Cr.P.C., hence the question of
supply a copy of statements under Section
208 Cr.P.C. does not arise.
1144 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

17. Section 209 deals with the
commitment of the case to the court of
sessions when offence is triable exclusively
by the court of sessions.

18. In this case the complaint was
lodged by an Additional Sessions Judge and
looking into the facts and circumstances that
the offence punishable under Section 195
IPC is exclusively triable by the court of
Sessions, the case was committed to the
court of Sessions. In these circumstances, I
do not find any violation of the provisions
of Section 209 of Cr.P.C. Moreover,
offence punishable under Section 195 IPC
is exclusively triable by the court of
sessions hence there was no illegality in
committing the case to the court of sessions.
No doubt Section 209 provides that the case
shall be committed to the court of sessions
after complying with the provisions of
Sections 207 and 208 Cr.P.C. but as
mentioned above, the statements of the
witnesses were not recorded in view of the
fact that the complaint was lodged by an
Additional Sessions Judge in discharge of
his official duties and there was no need to
examine the complainant as well as
witnesses in view of the provisions of
proviso to Section 200 Cr.P.C., the question
of compliance of provisions of Section 208
Cr.P.C. do not arise.

19. Learned A.G.A. has also drawn
my attention towards the fact that present
revisionist Harpal Singh had moved a
petition under Section 482 Cr.P.C. before
this Court which was registered as Criminal
Misc. Application No.3883 of 2001 and
was dismissed vide order dated 30.8.2007.

20. Another Criminal Revision
No.136 of 2001 "Harpal Vs. State of U.P."
was also filed by the present revisionist
which was also dismissed vide order dated
18.2.2008.

21. The above conduct of the present
revisionist shows that he simply intended to
delay the proceedings against him for one
reason or the other.

22. My attention has also been drawn
towards Laxmi Narain Singh Vs. State of
U.P., 1999-JIC-2-554, in which this Court
has held that if the complaint has been filed
by a judicial authority under Section 195
Cr.P.C. then provisions of Section 202 and
203 Cr.P.C. are not applicable and the
complaint has to be proceeded with as if it
was instituted on a police report.

23. In view of the above discussion, I
do not find any illegality in the impugned
order dated 5.11.2009. The revision is
dismissed and the revisionist is directed to
appear before the court concerned on the
date fixed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.09.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA, J

Misc. Single No. 4984 of 2012

M/S Viraj Construction (P) Ltd.

 ...Applicant
Versus
Civil Judge (S.D) Lucknow & others

 ...Respondents

Counsel for the Petitioner:
Sri Sachin Garg
Sri
Alok
Saran

Counsel for the Respondents:
Sri Manish Kumar