# Sanehi @ Ram Sanehi 330 INDIAN LAW REPORTS ALLAHABAD SERIES v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-20
- **Case number:** Application U/S 482 No. 2778 of 2018
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanehi-ram-sanehi-330-indian-law-reports-allahabad-series-v-state-of-u-p-anr-52846
- **Pages:** 10

## Headnote

order passed by the learned Magistrate, after
recording the statement of the complainant u/s
200 Cr.P.C. and examining only some of the
witnesses u/s 202 Cr.P.C., is legally valid and
sustainable, particularly in a case triable by the
Court of Session, or whether such an order
stands vitiated on the ground of alleged noncompliance with the mandatory requirement of
examining all the witnesses named in the
complaint.

Headnotes
Penal Code, 1860 - ss. 147, 148, 149, 302,
504 - Code of Criminal Procedure, 1973 -
ss. 202, 203 - The applicant lodged an FIR
in respect of an incident dated 16.12.2008
alleging the commission of offences u/ss.
147, 148, 149, 302 and 504 IPC - After
investigation,
a
final
report
was
submitted, which was contested by the
applicant through a protest petition that
was treated as a complaint case -
Statements of the complainant u/s 200
Cr.P.C. and of six witnesses u/s 202
Cr.P.C.
were
recorded,
however,
the
complaint was initially dismissed u/s 203
Cr.P.C - The dismissal was set aside in
revision and the matter was remitted for
fresh consideration - Subsequently, the
Magistrate issued a summoning order
against
the
accused,
which
was
challenged in revision and set aside on the
ground
of
non-examination
of
all
witnesses u/s 202 Cr.P.C - The applicant
assailed the revisional order by invoking
the inherent jurisdiction of the High Court
u/s 482 Cr.P.C., leading to the instant
proceedings.

Held: The court below while issuing summons
has considered the statements of Section 200
Cr.P.C. of the complainant as well as statements
of six witnesses u/s 202 Cr.P.C. - The Magistrate
while applying his mind at the time of issuing
summons has to see the records available - In
case, the records and evidences available make
out the offence, there is no reason to call upon
all the other witnesses and get their statement
recorded u/s 202 Cr.P.C. - If summon has been
issued against dead person, the criminal case is
deemed to be abated in respect of dead person
- The applicant's case has to be seen on the
given facts and circumstances, the evidence on
record and statements of the complainant and
witnesses and after going through records, the
offence is made out - The argument that same
allegation against two persons, namely, Jagpal
and Babu, have been levelled, but summons
have not been issued, is also not sustainable in
view of the fact that it is the applicant who may
be aggrieved and he may take appropriate steps
to challenge the order, but certainly it cannot be
said that the respondents are aggrieved,
therefore, the arguments are overruled -
Arguments that all the witnesses have not been
summoned, is also not sustainable, because
after going through the record and statements
of complainant and six witnesses u/ss 200 and
202, Cr.P.C., once the offence is made out and
at the stage of summoning, the court below
applied its mind and found that offence

## Text

11 All. Sanehi @ Ram Sanehi Vs. State of U.P. & Anr.
329

Or

B.A./B.Sc. with atleast 50% marks and 1
year B.Ed. (Special Education)

and

Teacher Eligibility Test (Upper Primary
Level) passed conducted by the State
Government or by the Government of
India.

(2) .......................................

31. A bare perusal of Rule 4 indicates
that minimum eligibility qualifications for the
post of Assistant Teacher of recognized
Junior High School shall be a graduation
degree from a University recognised by
U.G.C., and a teachers training course
recognized by the State Government or
NCTE. The description of various training
courses given in Rule 4 has to be read along
with graduation degree and not in isolation.
Once sub-Rule (1) specifically provides a
graduation degree as minimum qualification
for the post of Assistant Teacher, making
provision for a teachers training course
prescribed in Rule (1) itself is an 'additional
eligibility qualification' for appointment on
the post of Assistant Teacher. Hence, even
the eligibility prescribed in Rules of 1978
does not come to the aid in challenge to the
Government Orders being in force since 1998
or the Government Order dated 09.09.2024
or the National Education Policy and, hence,
the argument advanced by Shri Khare based
upon Rules of 1978 also stands discarded.

CONCLUSION

32. We are, therefore, of the opinion that
the order impugned passed by the learned
Single Judge holding Clause 4(1) of the
Government Order dated 09.09.2024 as
arbitrary,
discriminatory
or
unconstitutional
does
not
take
into
account various vital aspects of the
matter, such as inter-connectivity and corelation in between various Government
Orders issued from time to time and
NCTE
Regulations
vis-a-vis
Service
Rules applicable for teaching in basic
education institutions and also significant
definitions described hereinabove and
changed nomenclature of B.T.C. course
into D.El.Ed. course but carrying the
same eligibility criteria over more than
two decades. Further, the decision of the
learned Single Judge based upon alleged
discrepancy in between two courses i.e.
D.El.Ed.' 2024 and D.El.Ed.' 2024
(Special
Education),
is
also
found
contrary to record which does not
indicate any D.El.Ed.' 2024 (Special
Education) course being run by DIET,
nor is the conclusion drawn in that
direction based upon case of the parties.

33. Accordingly, the special appeal is
allowed.

34. The impugned judgement and
order dated 24.09.2024 passed by the
learned Single Judge in Writ-C No.24528
of 2024 is hereby set aside and the writ
petition filed by the respondents stands
dismissed.
----------
(2025) 11 ILRA 329
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.11.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No. 2778 of 2018

Sanehi @ Ram Sanehi ...Applicant
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Raj Kr Singh Suryvanshi

Counsel for the Opposite Parties:
Govt. Advocate, Nadeem Murtaza

Issue for Consideration
Matter pertains to whether the summoning
order passed by the learned Magistrate, after
recording the statement of the complainant u/s
200 Cr.P.C. and examining only some of the
witnesses u/s 202 Cr.P.C., is legally valid and
sustainable, particularly in a case triable by the
Court of Session, or whether such an order
stands vitiated on the ground of alleged noncompliance with the mandatory requirement of
examining all the witnesses named in the
complaint.

Headnotes
Penal Code, 1860 - ss. 147, 148, 149, 302,
504 - Code of Criminal Procedure, 1973 -
ss. 202, 203 - The applicant lodged an FIR
in respect of an incident dated 16.12.2008
alleging the commission of offences u/ss.
147, 148, 149, 302 and 504 IPC - After
investigation,
a
final
report
was
submitted, which was contested by the
applicant through a protest petition that
was treated as a complaint case -
Statements of the complainant u/s 200
Cr.P.C. and of six witnesses u/s 202
Cr.P.C.
were
recorded,
however,
the
complaint was initially dismissed u/s 203
Cr.P.C - The dismissal was set aside in
revision and the matter was remitted for
fresh consideration - Subsequently, the
Magistrate issued a summoning order
against
the
accused,
which
was
challenged in revision and set aside on the
ground
of
non-examination
of
all
witnesses u/s 202 Cr.P.C - The applicant
assailed the revisional order by invoking
the inherent jurisdiction of the High Court
u/s 482 Cr.P.C., leading to the instant
proceedings.

Held: The court below while issuing summons
has considered the statements of Section 200
Cr.P.C. of the complainant as well as statements
of six witnesses u/s 202 Cr.P.C. - The Magistrate
while applying his mind at the time of issuing
summons has to see the records available - In
case, the records and evidences available make
out the offence, there is no reason to call upon
all the other witnesses and get their statement
recorded u/s 202 Cr.P.C. - If summon has been
issued against dead person, the criminal case is
deemed to be abated in respect of dead person
- The applicant's case has to be seen on the
given facts and circumstances, the evidence on
record and statements of the complainant and
witnesses and after going through records, the
offence is made out - The argument that same
allegation against two persons, namely, Jagpal
and Babu, have been levelled, but summons
have not been issued, is also not sustainable in
view of the fact that it is the applicant who may
be aggrieved and he may take appropriate steps
to challenge the order, but certainly it cannot be
said that the respondents are aggrieved,
therefore, the arguments are overruled -
Arguments that all the witnesses have not been
summoned, is also not sustainable, because
after going through the record and statements
of complainant and six witnesses u/ss 200 and
202, Cr.P.C., once the offence is made out and
at the stage of summoning, the court below
applied its mind and found that offence was
constituted, therefore, summons were issued -
The other witnesses will be examined at the
time of trial, therefore, the argument has no
force - Thus, no illegality in the summons issued
by court below, application allowed. [Paras 18,
20, 21, 22 ] (E-13)

Case Law Cited
Shivjee Singh v. Nagendra Tiwary and ors.,
Criminal Appeal No. 1158 of 2010, arising
out of SLP (Crl.) No. 1416 of 2009, (Paras
14, 16); Parmeshwar & ors. v. State of U.P. &
ors., Case u/ss 482/378/407 No. 1944 of
201; Doodh Nath Mishra and ors. v. State of
U.P. and anr., Crl. Misc. Application No.
5611 of 1991, dated 23.11.2002 (Para
11); Smt. Guddi and 9 others, Criminal
Revision
No.
3222
of
2013,
dated
08.11.2023 (Para 16, 17); Kanwarpal Lala
and 2 ors. v. State of U.P. and anr.,
Application U/s 482 No. 38783 of 2022,
dated 13.04.2023 (Paras - 11, 12, 16 ); Brij
Pal v. State of U.P. & anr., Criminal Revision
11 All. Sanehi @ Ram Sanehi Vs. State of U.P. & Anr.
331
No. 1703 of 1998, dated 15.09.2021 (Para
- 7); Makibudeen and ors. v. State of U.P. &
anr., Matters under Article 227 No. 3512 of
2020, dated 02.12.2020 (Paras - 9, 17);
Sanjeev Kumar & ors. v. State of U.P. & anr.,
Application U/s 482 No. 5705 of 2006,
dated 17.01.2020 (Paras - 23, 28); Shiv
Poojan and ors. v. State of U.P. & ors.,
Application U/s 482 No. 4419 of 2004,
dated 04.07.2019 (para- 28, 30); Leelawati
Bai (smt.) v. Rajendra Prasad and ors., Misc.
Cr.
Case
No.
2758
of
1999,
dated
13.05.2009 (Paras - 11, 12); Javed Shaukat
Ali Qureshi v. State of Gujrat, (2023) 9 SCC
164 (Para 15); Kashi Nath Rai v. State of U.P.,
2015 SCC Online All 5319 (Paras 7-9); U.
Subhadhramma v. State of Andhra Pradesh &
ors., (2016) 7 SCC 797 (Paras 9-10); Gudiya
v. State of U.P. & ors., (2024) 126 ACC 839
(Paras 15-27) - referred to

List of Acts
Penal Code, 1860; Code of Criminal Procedure,
1973

List of Keywords
Application u/s 482 Cr.P.C.; Summoning order;
Complaint Case; Criminal Revision; Revisional
Court; Chief Judicial Magistrate; Protest petition;
Final report; Cognizance; Statements u/ss. 200,
202 Cr.P.C; Issuance of summons; Opportunity
of hearing; Impleaded as opposite parties;
Prima facie offence; Illegality / infirmity;
Application of mind; Offence is made out;
Triable by the Court of Session; Abated
proceedings; Dead person; Examination of
witnesses; Stage of summoning; Evidence on
record; Judicial satisfaction

Case Arising From
ORIGINAL JURISDICTION: Application u/s 482
No. - 2778 of 2018

From the order dated 13.04.2018 passed by the
Additional
District
Judge/Special
Judge
(Essential Commodities Act), Room No. 2,
Barabanki, in Criminal Revision No. 128 of 2017

Appearances for Parties
Adv. for the Applicant:
Raj Kr Singh Suryvanshi

Advs. for the Opposite Parties:
Govt. Advocate, Nadeem Murtaza

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Sri Nadeem Murtaza, learned
counsel for the private opposite parties, has
filed objection to the supplementary
affidavit filed on behalf of the petitioner,
which is taken on record.

2.
Heard
Sri
Raj
Kr.
Singh
Suryvanshi,
learned
counsel
for
the
applicant and Sri Nadeem Murtaza, learned
counsel for the private opposite parties, and
perused the record.

3. By means of this application, the
applicant has prayed for the following main
prayer:-

"Hon'ble Court may kindly be
pleased to set aside/quash the order dated
13.04.2018 passed by the Additional
District Judge/Special Judge (Essential
Commodities Act), Room No. 2, Barabanki,
in Criminal Revision no. 128 of 2017 (Drig
Pal Singh v. State of U.P. and ors.), arising
out of Complaint Case No. 191/2016 (Ram
Sanehi v. Drig Pal Singh and ors.), bearing
Case
Crime
No.
451-A/2008,
under
Sections 147, 148, 149, 302, 504, I.P.C.,
Police Station Tikait Nagar, District
Barabanki, contained as Annexure No. 1 to
the application."

4. Brief facts of the case are that the
applicant had lodged F.I.R. against the
opposite party No. 2 and ors., which was
registered at Case Crime No. 451-A/2008,
under Sections 147, 148, 149, 302, 504,
I.P.C., Police Station Tikait Nagar, District
Barabanki. The investigating officer, after
investigation, submitted final report on
28.06.2009, which was challenged by the
applicant by filing protest petition on
332 INDIAN LAW REPORTS ALLAHABAD SERIES
18.01.2010. The said petition filed by the
applicant was treated as Complaint and
thereafter statements of the applicant and
six
witnesses
were
recorded.
The
Magistrate after going through the material
on record dismissed the Complaint under
Section 203 Cr.P.C. vide order dated
14.04.2015. The applicant challenged the
order
dated
14.04.2015
in
Criminal
Revision No. 61/2015. The same was
allowed and the matter was remitted back
to the Magistrate for fresh disposal of the
case. The accused, feeling aggrieved
against the aforesaid order of remand, filed
Application under Section 482 Cr.P.C. in
Criminal Misc. Case No. 4152 of 2015,
which was allowed on 07.01.2016 and it
was remitted back to the revisional court
with direction that the accused persons be
impleaded as opposite parties and it was
directed that the case be decided after
giving opportunity of hearing to the parties.

5. In pursuance of the aforesaid order,
the applicant impleaded all the accused and
they also appeared before the revisional
court. The revision was allowed and matter
was remitted back to the Magistrate for
deciding complaint as fresh. The order was
challenged by the accused by filing
Application
under
Section
482
No.
5207/16, which was rejected vide order
dated 01.05.2017 and the order dated
28.07.2016 was upheld. The Chief Judicial
Magistrate, Barabanki, issued summoning
order in Complaint Case No. 191 of 2016
in Case Crime No. 451-A/2008 to Drigpal
Singh and others on 31.05.2017. One of the
accused Drigpal Singh filed revision
bearing Revision No. 128 of 2017 against
summoning order dated 31.05.2017, which
was allowed on the ground that all the
witnesses mentioned in the list of witnesses
have not been produced as per the
provision of Section 202 Cr.P.C. and it has
been observed that it is mandatory for the
court to call upon the complainant to
produce all the witnesses and examine
them on oath, if the offence is exclusively
triable by the court of Sessions. The
aforesaid
order
was
passed
by
the
Revisional Court on 13.04.2018. Being
aggrieved, Ram Sanehi filed the instant
application under section 482 Cr.P.C. and
the order dated 13.04.2018 was set aside on
09.05.2018.

6. Drigpal Singh challenged the order
dated 09.05.2018 before the Hon'ble
Supreme Court by way of Criminal Appeal
No. 366/2024 and the Hon'ble Supreme
Court allowed the Criminal Appeal No.
366/2024 vide order dated 23/01/2024 and
set aside the order dated 09.05.2018, with a
direction that since the summons were
issued by the learned Chief Judicial
Magistrate, Barabanki, to 13 accused and 9
of the accused are appellants herein. It is
further observed that the appellants/the first
respondents,
complainant
and
the
respondent-State shall appear before the
High Court on 19.02.2024 either in person
or through counsel without expecting any
separate notices to be issued by the High
Court. As far as accused No. 2, 3, 6 and 10
are concerned, notices shall be issued to
them by the High Court and thereafter the
petition filed by the first respondents herein
may be heard and disposed of in
accordance with law. The Hon'ble Supreme
Court remanded the case to this court with
observations that some of the accused were
not party before High Court, therefore, they
should be impleaded and thereafter the
High Court may pass order after affording
opportunity of hearing.

7. In compliance of the order passed
by Hon'ble the Supreme Court the applicant
has
impleaded
all
the
aggrieved
11 All. Sanehi @ Ram Sanehi Vs. State of U.P. & Anr.
333
respondents, i.e., from opposite party Nos.
3 to 10 in the array of respondents.

8. Sri Nadeem Murtaza, Advocate, is
appearing on behalf of all the respondents,
who have been impleaded in pursuance of
the direction passed by the Hon'ble
Supreme Court.

9.
Heard
Sri
Raj
Kr.
Singh
Suryvanshi,
learned
counsel
for
the
applicant, Sri Nadeem Murtaza, learned
counsel for the private opposite parties, and
perused the record and Sri Rajdeep Singh,
learned A.G.A. for the State.

10. It has been submitted by learned
counsel for the applicant that after
recording the statement under Section 200
Cr.P.C. of the complainant and six
witnesses under Section 202 Cr.P.C. the
court concerned proceeded in the case and
after going through record as well as the
statements, issued summons.

11. It has been submitted by learned
counsel for the applicant that there is no
illegality, infirmity in the order of the
summons for reason that the court below
has to see whether after going through the
record and evidences, the offence is made
out or not. Once the six witnesses have
been examined by the court below under
Section 202 Cr.P.C., it was sufficient to see
whether the evidences do constitute the
offence or not. Counsel for the applicant
has relied the judgment of Hon'ble the
Supreme court in the case of Shivjee Singh
v. Nagendra Tiwary and ors., Criminal
Appeal No. 1158 of 2010, arising out of
SLP (Crl.) No. 1416 of 2009, (para 14,
16), as also Judgments and orders of High
this Court in Case under Sections
482/378/407
No.
1944
of
2011,
Parmeshwar & ors. v. State of U.P. &
ors.; Crl. Misc. Application No. 5611 of
1991, Doodh Nath Mishra and ors. v.
State of U.P. and anr., dated 23.11.2002
(para11); Criminal Revision No. 3222 of
2013, Smt. Guddi and 9 others, dated
08.11.2023 (para 16, 17); Application U/s
482 No. 38783 of 2022, Kanwarpal Lala
and 2 ors. v. State of U.P. and anr., dated
13.04.2023 (para- 11, 12, 16 ); Criminal
Revision No. 1703 of 1998, Brij Pal v.
State of U.P. & anr., dated 15.09.2021
(para- 7); Matters under Article 227 No.
3512 of 2020, Makibudeen and ors. v.
State of U.P. & anr., dated 02.12.2020
(para- 9, 17), Application U/S 482 No.
5705 of 2006, Sanjeev Kumar & ors. v.
State of U.P. & anr., dated 17.01.2020
(para- 23, 28); Application under Section
482 No. 4419 of 2004, Shiv Poojan and
ors. v. State of U.P. & ors., dated
04.07.2019 (para- 28, 30) and Misc. Cr.
Case No. 2758 of 1999, Leelawati Bai
(smt.) v. Rajendra Prasad and ors.,
dated 13.05.2009 (para- 11, 12).

12. On the other hand Mr. Nadeem
Murtaza, learned counsel for all the private
respondents has taken three grounds- (1)
that the trial court while issuing summons
committed error by summoning the dead
person, i.e. Raghunath and Vijay Pal. He
has submitted that while issuing summons
the trial court ought to have looked into the
fact that these two persons have died,
therefore, it was incumbent upon the trial
court to apply mind. (2) Counsel for the
respondents has further submitted that same
allegations have been levelled against two
persons, i.e., Jagpal and Babu, but while
issuing summons the trial court has
overlooked this fact that there is also same
allegation,
but
they
have
not
been
summoned. He has taken ground No. 3 that
all the witnesses should have been called
by the court below and thereafter summons
334 INDIAN LAW REPORTS ALLAHABAD SERIES
should have been issued, but in the present
case the trial court has summoned only six
witnesses and their statements under
Section
202
Cr.P.C.
were
recorded,
however, other witnesses have not been
examined, therefore, the summoning order
is bad. In support of his contentions, Sri
Murtaza, has relied on judgments of
Hon'ble the Supreme Court in the cases of
Javed Shaukat Ali Qureshi v. State of
Gujrat, (2023) 9 SCC 164 (para 15);
Kashi Nath Rai v. State of U.P., 2015
SCC Online All 5319(para 7-9); U.
Subhadhramma and State of Andhra
Pradesh & ors., (2016) 7 SCC 797 (para
9-10). He has also relied on a judgment of
this High Court in the case of Gudiya v.
State of U.P. & ors., (2024) 126 ACC 839
(para 15-27);

13. The Hon'ble Supreme Court in the
case of Shivji Singh (supra) has held that
witnesses cited in the complaint or whose
names are disclosed by the complainant in
furtherance of the directions given by the
Magistrate in terms of proviso to Section
202(2), Cr.P.C. is not a condition precedent
for taking cognizance. (para 14 to 16):

"14. Although, Shah, J. and
Thomas, J. appear to have expressed
divergent views on the interpretation of
proviso to Section 202(2) but there is no
discord
between
them
that
non
examination of all the witnesses by the
complainant
would
not
vitiate
the
proceedings. With a view to clarify legal
position on the subject, we deem it proper
to observe that even though in terms of
the proviso to Section 202(2), the
Magistrate is required to direct the
complainant to produce all his witnesses
and examine them on oath, failure or
inability of the complainant or omission
on his part to examine one or some of the
witnesses cited in the complaint or whose
names are furnished in compliance of the
direction issued by the Magistrate, will
not preclude the latter from taking
cognizance
and
issuing
process
or
passing committal order if he is satisfied
that there exists sufficient ground for
doing so. Such an order passed by the
Magistrate cannot be nullified only on the
ground of non-compliance of proviso to
Section 202(2).

15. In Birendra K. Singh v.
State of Bihar (2000) 8 SCC 498, the
only question considered by this Court
was whether non-compliance of Section
197 Criminal Procedure Code was fatal
to the prosecution. While holding that an
objection regarding non-compliance of
Section 197 can be raised only after the
case is committed to the Court of
Sessions, this Court observed that it was
not made aware of the fact whether
process was issued after complying with
the provisions of Section 202. Therefore,
that judgment cannot be read as laying
down
a
proposition
of
law
on
interpretation of proviso to Section
202(2). That apart, it is important to
mention that in Abdul Wahab Ansari v.
State of Bihar 2000(4) RCR (Criminal)
572: (2000) 8 SCC 500, a three-Judge
Bench held that the decision in Birendra
K. Singh's case does not lay down the
correct law.

16. 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
11 All. Sanehi @ Ram Sanehi Vs. State of U.P. & Anr.
335
the Chief Judicial Magistrate to conduct
further inquiry and pass fresh order in the
light of proviso to Section 202(2)."

14. The Hon?ble Supreme Court in the
case of Doodhnath (supra) has held that
all the witnesses out of 16 are not to be
examined by the court under Section
202(2) of Cr.P.C. (para-11):

"11. In the case on hand, as
stated earlier, there were sixteen witnesses
in all named in the complaint petition of
whom respondent complainant examined
twelve. No argument was advanced by the
counsel appearing for the petitioners as to
how non-examination of the remainaing
four witnesses caused any prejudice to the
petitioners. I am, therefore, of the view that
there was sufficient compliance of the
requirement of the proviso to sub-section
(2) of Section 202 of the Code and
therefore, I would hold that the order of the
learned Magistrate taking cognizance of
the offence cannot be interfered with."

15. In Case of Brijpal (supra) the
Hon'ble Supreme Court has observed that
it is not mandatory for the complainant to
examine all the witnesses named in the
complaint under Section 202 Cr.P.C. (
para-7):

"7. Thus, the legal position is
well settled as has been laid down in case
of Satyadeo Pandey v. State of U.P., 1987
(1) Crimes 637, Dudh Nath Mishra v.
State of U.P., 2003 Alld. Law Journal 55,
Chhotey Lal v. State of U.P., 2006 Cr.L.J.
2265, by the Allahabad High Court and
also in case of Abdul Hamidkhan Pathan
& ors. V. State of Gujarat & ors., 1989
Cr.L.J. 468, by the Gujarat High Court and
so also in case of Kishor Singh & Etc. v.
Sudama Prasad, 2002 Cr.L.J. 802 (MP),
wherein it is held that it is not mandatory
for the complainant to examine all the
witnesses named in complaint, he has
choice in the matter and, therefore, this
issue being already settled by several
pronouncements of this High Court and
other High Courts, is to be answered
accordingly that there is no need to
examine all the witnesses in terms of the
Proviso below Sub-Section 2 of Section 202
Cr.P.C., 1973 if a case is triable by
sessions court especially having regard to
the import and meaning of word 'His' used
in the proviso."

16. In case of Subradharma and ors.
(supra) the Hon?ble Supreme court has
held that the criminal court cannot continue
proceedings against a dead person and find
him guilty. Such proceedings are contrary
to
very
foundation
of
criminal
jurisprudence. (para 9 & 10):

"9. As far as the circumstances of
this case are concerned, we find that There
has been a gross miscarriage of justice at
several steps. In the first place, the finding
of the trial court that Ramachandraiah was
alone responsible for the offences is
completely vitiated as null and void since
Ramachandraiah had admittedly died on
the date this finding was rendered. It is too
well settled that a prosecution cannot
continue against a dead person. A fortiori a
criminal court cannot continue proceedings
against a dead person and find him guilty.
Such proceedings and the findings are
contrary to the very foundation of criminal
jurisprudence. In such a case the accused
does not exist and cannot be convicted.
Consequently, the learned District Judge
committed a gross error of law in acting
upon
such
a
finding
and
treating
Ramachandraiah as guilty of such offences
while making the order of attachment and
336 INDIAN LAW REPORTS ALLAHABAD SERIES
while confirming the said order of
attachment of properties.

10. In such circumstance, the
courts below erred in recording the finding
that Appellant 1 had committed the offence
as alleged by the prosecution. Further,
finding recorded by the learned Single
Judge of the High Court that Appellant 1
alone had committed the offence and not
Appellant 2, must be taken to have
misappropriated
the
said
amount
is
perverse:

"A criminal trial is not like a fairy
tale wherein one is free to give flight to
one's
imagination
and
phantasy.
It
concerns itself with the question as to
whether the accused arraigned at the trial
is guilty of the crime with which he is
charged... In arriving at the conclusion
about the guilt of the accused charged with
the commission of a crime, the court has to
judge the evidence by the yardstick of
probabilities, its intrinsic worth and the
animus of witness".

17. The Hon'ble Supreme Court in the
case of Javed Shaukaut Ali Quraishi
(supra) has held that if there is identical
evidence of eye-witnesses against two
accused, then court cannot connect one
accused and acquit the other (para 15):

15. When there is similar or
identical
evidence
of
eyewitnesses
against two accused by ascribing them
the same or similar role, the court
cannot convict one accused and acquit
the other. In such a case, the cases of
both the accused will be governed by the
principle of parity. This principle means
that the criminal court should decide
like cases alike, and in such cases, the
court cannot make a distinction between
the two accused, which will amount to
discrimination.

18. After going through record, I find
that
the
court
below
while
issuing
summons has considered the statements of
Section 200 Cr.P.C. of the complainant as
well as statements of six witnesses under
Section 202 Cr.P.C. The Magistrate while
applying his mind at the time of issuing
summons has to see the records available.
In case, the records and evidences available
make out the offence, there is no reason to
call upon all the other witnesses and get
their statement recorded under Section 202
Cr.P.C.

19. After going through the statements
recorded under Sections 200 and 202,
Cr.P.C. which were available before the
court, it cannot be said that the offence is
not made out. Once the offence is made
out, the trial court will proceed and the
evidences will be adduced in accordance
with law.

20.
Arguments
of
Sri
Nadeem
Murtaza, Advocate, that against dead
person summon cannot be issued, is not
sustainable in the eyes of law. It is relevant
to be mentioned here that if summon has
been issued against dead person, the
criminal case is deemed to be abated in
respect of dead person. The applicant's
case has to be seen on the given facts and
circumstances; the evidence on record and
the statements of the complainant and
witnesses and after going through records,
the offence is made out.

21. The argument that the same
allegation against two persons, namely,
Jagpal and Babu, have been levelled, but
summons have not been issued, is also not
sustainable in view of the fact that it is the
applicant who may be aggrieved and he
may take appropriate steps to challenge the
order, but certainly it cannot be said that
11 All. Sanehi @ Ram Sanehi Vs. State of U.P. & Anr.
337
the respondents are aggrieved, therefore,
this arguments is also overruled.

22. The third arguments that all the
witnesses have not been summoned, is also
not
sustainable,
because
after
going
through the record and statements of
complainant and six witnesses under
Sections 200 and 202, Cr.P.C., once the
offence is made out and at the stage of
summoning, the court below applied its
mind
and
found
that
offence
was
constituted,
therefore,
summons
were
issued. The other witnesses will be
examined at the time of trial, therefore, the
argument has no force.

23. The statement under Section 200
Cr.P.C. reads as under:-

"बयाि वाददिी अन्तगात धारा 200
दिं०प्र० िंदहता

राम िेही उम्र 50 वर्ा पुत्र रामदीि
पेशा खेती निवा ी खेता राय थािा दटिैतिगर
जजला बाराबिंिी िे शपथ बयाि किया कि
घटिा ददिािंि 16.12.2008 मय 9 बजे ददि
िी मैं गन्िा बेगम श्री दृगपाल, रघुिाथ
ववजयपाल, ोिू, गुड्िू, मदिू, दन्िू, टडड़माल
श्यामिरायि, लाल बाबू जगन्िाथ, रत्िेश, ये
लोग िरा रहे थे। मेरा लड़िा राम ुफल रोििे
गया। राम ेवि भी ाथ में थे बचई थी ाथ में
थे। इि लोगों िे रोिा कि गििा िरारों पैमाइश
िरािे भाई तुम्हारा हो तो िाट लेिा दृगपाल
राइफल सलये थे ववजय पाल बन्दूि सलये थे
रघुिाथ भी बन्दूि सलये थे श्यामिरायि बन्दूि
सलये थे भगवन्ते, ुरेन्र, रत्िेश व गुड्िू िट्टा
सलये थे अन्य लोग लाठी सलये थे। दृगपाल स िंह
ि ललिारा कि मारों ाले िो जािे ि पाये।
इिलोगों िे फायर किय। मेरे लड़िे राम ुफल
िो ीिे में गोली लग गयी यह घायल हो गया।
गोली िी आवाज ुििर हम लोग दौड़े। खेतो में
िाम िर रहे लोग भी दौड़े। मैं जब अपिे लड़िे
िो उठाया तो उ िी ािं चल रही थी। उ े
लेिर में अस्पताल भागा। भी लोग पहुाँच गये।
बािंिी लोगों िे ललिारिे पर मुजल्जमाि धमिी
देिे हुए भाग गये। िहे कि अगर ररपोटा
सलखवाये तो मार देगे लड़िे िो गाड़ी इलाज िे
सलए ले जाते मय उ िी मृत्यु हो गयी। यह
घटिा लीलार गािंव िी है। ररपोटा सलखिे गया
मेरे बोलिे पर जजलेदार िाम िे आदमी िे
तहरीर सलखी। मुिदमा िायम हो गया। दरोगा
जी गयेथे। हमलोगों िो पिड़िर जेल भेज
ददये। इ घटिा िो जजलेदार, मोखि, बेंचि,
तमाम और लोगों िे भी देखा था इ े दरोगा
जी पूछताछ िी और फाइिल लगा ददया।
िोदट में सलखिर मुिदमें िायम।"

24.
The
said
statement
of
the
complainant has been recorded by the six
witnesses, who have been examined under
Section
202,
Cr.P.C.
and
they had
supported the prosecution case. It is
relevant to be mentioned here that there is
allegation of murder and bare perusal of the
statement and other evidences on record
goes to indicate that offence is made out
and there is no illegality in the summons
issued by the court below.

25. In view of the above, the
application is allowed. Order dated order
dated 13.04.2018 passed by the Additional
District Judge/Special Judge (Essential
338 INDIAN LAW REPORTS ALLAHABAD SERIES
Commodities
Act),
Room
No.
2,
Barabanki, in Criminal Revision no. 128 of
2017 (Drig Pal Singh v. State of U.P. and
ors.), arising out of Complaint Case No.
191/2016 (Ram Sanehi v. Drig Pal Singh
and ors.), bearing Case Crime No. 451A/2008, under Sections 147, 148, 149, 302,
504, I.P.C., Police Station Tikait Nagar,
District Barabanki, contained as Annexure
No. 1 to the application, is hereby set
aside.
---------
(2025) 11 ILRA 338
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 7520 of 2025
with connected cases Writ A No. 15574 of 2025
& 20898 of 2024

Nitish Maurya & Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
A.K.S. Parihar, C.S.C.

Issue for consideration
 Whether it is mandatory to publish a select list
having large number of candidates up to 25%
and no discretion can be exercised to fix a
criteria for waiting list?

Headnotes
A. Service Law - It is well settled that a
person in waiting list has no absolute right
for consideration to get appointed as well
as that a waiting list cannot remain in
existence
for
unlimited
period
or
a
particular selection process cannot remain
pending for unlimited period. (Para 15, 18)

It
is
not
mandatory
that
in
each
recruitment
process,
waiting
list
is
published to the extent of 25%. The
words used are "up to the extent",
therefore,
it
may
be
below
25%,
depending upon circumstances of the
case. A reasonable decision was taken to fix a
percentage of waiting list which was neither
arbitrary nor contrary to any provision of law.

Petitioners have not disputed that waiting list
could be published up to 25% of seats of
vacancies declared. Therefore, an argument
that there must be some criteria to five
percentage of waiting list does not have much
substance. At the request of petitioners, no
direction could be issued to the respondents to
publish a fresh waiting list to particular extent.
It is discretion of respondents to publish waiting
list to any extent up to 25%. (Para 17)

It would be more appropriate if respondents
have
followed
uniform
criteria
for
fixing
percentage of waiting list, but only on a ground
that uniformity was not followed, a decision
itself would not become arbitrary. Petitioners
have failed to show that any statutory provision
was violated. A direction was provided in Rules,
which was earlier upheld, therefore, this Court
cannot interfere with the decision in Writ
jurisdiction. (Para 19)

Number of vacancies are also not on record.
Procedure was commenced way back in the
year 2016 and it cannot be continued for
indefinite period. Recruitment process has
already been concluded. Discretion exercised by
respondents does not suffer with malice or is
not an arbitrary decision. (Para 12, 20)

Writ petition dismissed.(E-4)

Case Law Cited
1. Gaurav Kumar Vs. State of U.P. and others,
2025:AHC:32016 (Para 12)
2. Ambrish Kumar and others Vs. State of U.P.
and others, 2021:AHC:72924 (Para 12)

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