# Ruchi Mittal @ Smt. Ruchi Garg v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 3 ILRA 777
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Application u/s 482 No. 26037 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ruchi-mittal-smt-ruchi-garg-v-state-of-u-p-ors-opp-parties-49833
- **Pages:** 4

## Headnote

Criminal Law - Code of Criminal Procedure
- Section 156 (3) & 397-Application u/s 482
against order u/s 156(3) treating application as
complaint-Not
maintainable-Revision
under
Section 397 Cr.P.C. is proper remedy.

Application dismissed. (E-9)

List of Cases cited:

## Text

3 All. Ruchi Mittal @ Smt. Ruchi Garg Vs. State of U.P. & Ors.
777
provisions of Section 7(A) of the Act, 2007
as it mentions that, 'whenever a claim of
juvenility is raised', and that clearly shows
that an absolute opportunity has been
accorded to such an accused to set a claim
of his or her being juvenile at the time of
the incident and further that can be raised
before 'any Court' which indicates that the
same can be raised even at the Court of
appeal as well as the trial court. The claim
of the juvenility can be adjudicated in an
appeal, even if, the same was not
considered before the trial court.

25. So far as the present case is
concerned, the matter is at the stage of trial,
though the same is of year 2000 and after
about delay of 22 years, the applicant is
claiming her to be a juvenile but as per the
provisions of law, delay cannot be a ground
for entertaining such claims but the
Magistrate while passing the impugned
order,
prima
facie,
seems
to
be
unreasonable and ignorant of the provisions
of law as well as the law propounded by the
Apex Court with respect to deciding the
claim of juvenility. Further there seems to
be no lapse or lacuna on the part of the
applicant while submitting an application
on 14.10.2022.

26. Consequently, the impugned order
dated 07.12.2022 passed by the trial court
in Case No. 3095 of 2001 arising out of
Case Crime No. 172 of 2001, is hereby set
aside.

27. The matter is remitted back to the
trial court concerned.

28. The applicant is at liberty to file a
fresh application within a period of 30 days
from the date of receiving of certified copy
of this order, before the trial Court and if
such an application is filed, the same shall
be decided within further period of 45 days
strictly in accordance with law.

29. For the aforesaid period, the nonbailable
warrant
as
well
as
the
proclamation under Section 82 of CrPC
shall remain stayed.

30. With the aforesaid directions and
observations, the application is hereby
allowed.
----------
(2023) 3 ILRA 777
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 26037 of 2022

Ruchi Mittal @ Smt. Ruchi Garg
 ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Sunil Kumar

Counsel for the Opp. Parties:
G.A., Sri Bhanu Prakash Singh, Sri Vijay Prakash
Mishra

Criminal Law - Code of Criminal Procedure
- Section 156 (3) & 397-Application u/s 482
against order u/s 156(3) treating application as
complaint-Not
maintainable-Revision
under
Section 397 Cr.P.C. is proper remedy.

Application dismissed. (E-9)

List of Cases cited:

1. Atul Pandey @ Param Pragyan Pandey Vs St.
of UP & anr., 2021 LawSuiut (All) 603

2. Jagannath Verma & ors. Vs St. of U.P. &
anr.,2015 (88)AllCriC 1
778 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Lalit Kumari Vs Government Uttar Pradesh,
2014 (84) All CriC 719,

4. Sukhwai Vs St. of U. P., 2008 CrLJ 472,

5. Sakiri Vasu Vs St. of U. P., 2008 (60) AllCriC
689,

6. Mohd. Yusuf Vs Afaq Jahan, 2006 (54) AllCriC
530

7. Gopal Das Sindi Vs St. of Assam, AIR 1961 SC
986
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Sunil Kumar, learned
counsel for the applicant, Sri Pankaj Kumar
Tripathi, learned AGA for the State and Sri
Bhanu Prakash Singh, learned counsel for
opposite party no.2.

2. This application has been moved
under Section 482 CrPC to set aside the
order dated 25.07.2022 passed by ACJM-I,
Gautam Budh Nagar in Criminal Misc.
Application No.462 of 2021 (old No.343 of
2021, Smt. Ruchi Mittal Vs. Amit Mittal
and others), under Section 156(3) CrPC
treating the application under Section
156(3) CrPC to be a complaint case. It is
also prayed that after setting aside the
impugned order, a fresh order directing the
police to register the case and start
investigation and to submit investigation
report. Alternatively, a prayer is also made
to direct the ACJM-I, Gautam Budh Nagar
to hear and decide the aforementioned
application under Section 156(3) CrPC
within a stipulated period of time.

3. At the very outset before entering
into merit it would be proper to mention
that Sri Bhanu Prakash Singh, learned
counsel appeared on behalf of opposite
party no.2 without any notice about which
it is argued by the learned counsel for the
applicant that he has no locus to appear and
argue in the matter. He also pointed out the
ordersheet in which earlier on 17.10.2022 it
is observed by a co-ordinate Bench of this
Court that it is not a revision and Sri Vijay
Prakash Mishra, learned counsel (who
appeared on behalf of opposite party no.2)
has no locus. However, after closer of the
argument the learned counsel for the
applicant had not opposed the presence,
appearance and argument of Sri Bhanu
Prakash Singh, learned counsel who
appeared on behalf of opposite party no.2.

4. Learned AGA and the learned
counsel appearing for opposite party no.2
argued that an application under Section
482 CrPC is not maintainable. Instead of
filing a criminal revision the applicant has
filed an application under Section 482
CrPC i.e. the present application which is
not maintainable.

5. In the connected affidavit the
applicant has given the description of the
whole episode and about the cases pending
between the parties. Admittedly, the
applicant is the legally wedded wife of
opposite party no.2, Amit Mittal. Opposite
party nos.3 and 4 are the father-in-law and
mother-in-law of the applicant. Opposite
party no.5 is brother of applicant's husband
and opposite party no.6 is the wife of
opposite party no.5.

6. On the basis of argument of the
parties it transpires that instead of this
complaint a divorce petition by opposite
party no.2 in Bulandshahr and two criminal
cases, one under Section 406 IPC and another
under Section 420 IPC are also pending. A
case under the Guardians and Wards Act and
a case under Section 125 CrPC are also
pending between the parties and the
3 All. Ruchi Mittal @ Smt. Ruchi Garg Vs. State of U.P. & Ors.
779
proceeding of cases under Sections 406 and
420 IPC were stayed by this Court. It is also
argued by the learned counsel for the
applicant that without any right an application
under Section 340 CrPC has been moved by
the respondent and till now no payment of
interim maintenance has been made by the
opposite parties. According to him since
opposite parties are advocate in civil courts at
Bulandshahar and Gautam Budh Nagar,
therefore, the applicant in unable to prosecute
the complaint and since commission of a
cognizable offence has been alleged, hence
instead of treating the application as
complaint, the concerned Magistrate should
have allowed the application and should have
passed an order to register and investigate the
case. Learned counsel for the applicant also
argued that first of all the application under
Section 156(3) CrPC was moved in the Court
of ACJM-II but the PO found it difficult to
decide the application as the opposite party no.1
is the practicing lawyer in Gautam Budh Nagar,
therefore, on the request of ACJM-II the case
was transferred to the Court of ACJM-I but the
PO of Court of ACJM-I also found it difficult
and wrote a letter to CJM, Gautam Budh Nagar
showing his unwillingness to hear and decide
the proceeding of application under Section
156(3) CrPC. The Chief Judicial Magistrate,
Gautam Budh Nagar declined to transfer the
same. Being helpless, the ACJM-I converted
the application under Section 156(3) CrPC into
a complaint which would not meet the ends of
justice and in the attending circumstances the
applicant being a lady would not be able to
prosecute the complaint.

7. Learned counsel for the applicant
pointing out Section 397(2) CrPC argued that
the impugned order is an interlocutory order
about which no revision lies.

8. Contrary to that learned AGA
relied on the citation in Atul Pandey @
Param Pragyan Pandey Vs. State of UP
and another, 2021 LawSuiut (All) 603
decided by a co-ordinate Bench of this
Court and argued that the circumstances
expressed by the applicant would not
change the form. In aforementioned case
the Court citing the judgment in Jagannath
Verma and others Vs. State of UP and
another, 2015 (88) AllCriC 1, Lalit
Kumari Vs. Government Uttar Pradesh,
2014 (84) All CriC 719, Sukhwai Vs.
State of Uttar Pradesh, 2008 CrLJ 472,
Sakiri Vasu Vs. State of Uttar Pradesh,
2008 (60) AllCriC 689, Mohd. Yusuf Vs.
Afaq Jahan, 2006 (54) AllCriC 530 and
in Gopal Das Sindi Vs. State of Assam,
AIR 1961 SC 986 concluded that if an
application under Section 156(3) CrPC has
been rejected or it has been converted into
a complaint, the aggrieved party can prefer
revision under Section 397 CrPC. It has
also been held that an order regarding
rejection of such application or conversion
of application under Section 156(3) CrPC
into a complaint is not an interlocutory
order and it can only be challenged by the
aggrieved party by filing revision.

9. The facts of this case and the said
case are similar in nature. In Atul Pandey
(supra) an application under Section
156(3) CrPC was moved by Ali Hasan,
which was allowed and it was treated as a
complaint. Being aggrieved an application
under Section 482 CrPC had been moved
about which a question regarding its
maintainability was raised. Learned Single
Judge referring the aforementioned judicial
precedents held that in such circumstances
an application under Section 482 CrPC is
not maintainable. Relevant part of the
judgment is as under:-

"16. In the light of the law laid down
by the Full Bench of this Court in
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Jagannath Verma (supra), I find that the
impugned order is revisable in nature. The
appropriate remedy against the impugned
order available to the applicant is to file a
revision under Section 397 Cr.P.C. instead
of
approaching
this
Court
in
its
extraordinary jurisdiction by commencing
an application under section 482 Cr.P.C.
The prospective accused in the case is
entitled to be heard.

17. In the wake of the preceding
narrative, I find that the law laid down by
the Full Bench in Jagannath Verma (supra)
is fully applicable to the facts of this case.
Judicial discipline prohibits me from
entering into the merits of the case made by
learned counsel for the applicant.

18. The application under section 482
Cr.P.C. is accordingly dismissed on the
ground of existence of alternative remedy
of filing a revision under section 397
Cr.P.C. available to the applicant."

10. On the basis of aforementioned
discussion, this Court is also in conformity
with the principles laid down by the learned
Single Judge and is of the opinion that a
proceeding under Section 482 CrPC against
the impugned order is not maintainable and
the applicant should have preferred a
revision before the revisional court.

11. Accordingly, this application is
dismissed
as
not
maintainable.
The
applicant is at liberty to institute a revision
in the concerned revisional court.

12. Office is directed to return the
certified copy of the impugned order to the
counsel for the applicant.
----------
(2023) 3 ILRA 780
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2023
BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application u/s 482 No. 39234 of 2022

Suneeta Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ravindra Prakash Srivastava

Counsel for the Opp. Parties:
G.A.

Criminal Law - Indian Penal Code -
Sections 375 & 376 - Code of Criminal
Procedure Code, 1973 - Section 319Applicant not named in the FIR-nor in
charge
sheet-but
victim
St.d
her
involvement in her St.ment u/s 164 Cr.P.C.-
Summoning as additional accused under
Section
319
CrPC-impugned
-additional
accused
under
Section
319
CrPC
be
summoned based only on the evidence
adduced before it during trial, and not
merely on the material collected during
investigation by the investigating agencyWoman
as
accused
for
gang
rapePermissibility after 2013 amendment-if a
woman facilitates the act of gang rape with
a group, she can be prosecuted for the
offence punishable under Section 376D IPC
as the term "person" used therein is not
gender specific and includes women.

Application dismissed. (E-9)

List of Cases cited:

1. Priya Patel Vs St. of M.P. & anr., (2006) 3
SCC (Cri.) 96

2. St. of Rajasthan Vs Hemraj & anr. reported in
2009 (12) SCC 402

3. Hardeep Singh Vs St. of Pun. & ors., (2014) 3
SCC 92

4. Manjeet Singh Vs St. of Har. & ors., (2021)
SCC Online SC 632