# Sanjay Kumar Chaurasia v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008
- **Case number:** Criminal Misc. Writ Petition No. 12766 of 2008
- **Bench:** Surendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-chaurasia-v-state-of-u-p-and-others-41182
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 200
and 203-complaint duly supported by the
statements
of
witness-rejection
by
Magistrate on ground of absence of any
documentary
evidence-held-committed
manifest error of law-at this stage
Magistrate to see prima faice case and
not the chances of conviction-order
quashed with fresh direction.

Held: Para 9

Having
given
my
thoughtful
consideration
to
the
aforesaid
submissions and the cases cited by the
learned counsel for the petitioner in
support of his contention as well as on
the perusal of the material placed on
record of the case, I am of the complete
in agreement with the contention raised
by the learned counsel for the petitioner
that ACJM has committed gross manifest
error of law and gross illegality in
dismissing the complaint
Case law discussed:
2008(60) ACC 780, 1973(10) ACC 181 SC,
1976 (13) ACC 225 SC, 2002 (44) ACC 168.

## Text

738 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Tribunal) Rules, 1947, it shall not be
necessary to consult Public Service
Commission].
Explanation--For the purposes of this
article-
(a) Departmental proceedings shall be
deemed to have been instituted when
the charges framed against the
pensioner are issued to him or, if the
officer has been placed under
suspension from an earlier date, on
such date; and
(b) judicial proceedings shall be deemed
to have been instituted :
(i) in the case of criminal proceedings,
on the date on which complaint is
made, or a charge-sheet is submitted,
to a criminal court; and
(ii) in the case of civil proceedings, on
the date on which the plaint is
presented or, as the case may be, an
application is made to a Civil court.
Note--As soon as proceedings of the
nature referred to in this article are
instituted the authority which institutes
such proceedings shall without delay
intimate the fact to the Audit Officer
concerned."

19. The above provision, thus, deals
with the right of the Governor to withhold
or withdraw a pension or part of it and to
order the recovery from a pension of the
whole or part of any pecuniary loss
caused
to
the
Government
in
the
circumstances mentioned in the above
provision. The above provision does not
apply in the case of recovery from
gratuity, and as such, the same is not
relevant in the present case.

20. Under the circumstances, I am of
the
opinion
that
the
recovery
of
Rs.21,416-00 sought to be made in
respect of the alleged deficiency in the
items in the Office Store from the amount
of gratuity payable in respect of the
deceased Awadhesh Singh is against the
provisions of the said Government Order
dated 28-7-1989 and the said recovery
cannot be made from the gratuity payable
in respect of the deceased Awadhesh
Singh.

21. The order dated 6-2-2002 is
evidently illegal being contrary to the
provisions of the Government Order dated
28-7-1989.

22. In view of the above, the writ
petition deserves to be allowed, and the
order dated 6-2-2002 is liable to be
quashed. Accordingly, the writ petition is
allowed and the order dated 6-2-2002
(Annexure No.2 to the writ petition) is
quashed. The respondent no.3 is directed
to release the balance 10% of the gratuity
payable in respect of the said Awadhesh
Singh alongwith interest payable at the
rate prescribed in the relevant rules and
the orders, within three months of the
production of certified copy of this order
before the respondent no.3. However, in
the facts and circumstances of the case,
there will be no order as to costs
Petition allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2008

BEFORE
THE HON'BLE SURENDRA SINGH, J.

Criminal Misc. Writ Petition No. 12766 of
2008

Sanjay Kumar Chaurasia
...Petitioner
Versus
State of U.P. and others ...Respondents
3 All] Sanjay Kumar Chaursiya V. State of U.P. and others
739
Counsel for the Petitioner:
Sri. D.R. Azad

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure-Section 200
and 203-complaint duly supported by the
statements
of
witness-rejection
by
Magistrate on ground of absence of any
documentary
evidence-held-committed
manifest error of law-at this stage
Magistrate to see prima faice case and
not the chances of conviction-order
quashed with fresh direction.

Held: Para 9

Having
given
my
thoughtful
consideration
to
the
aforesaid
submissions and the cases cited by the
learned counsel for the petitioner in
support of his contention as well as on
the perusal of the material placed on
record of the case, I am of the complete
in agreement with the contention raised
by the learned counsel for the petitioner
that ACJM has committed gross manifest
error of law and gross illegality in
dismissing the complaint
Case law discussed:
2008(60) ACC 780, 1973(10) ACC 181 SC,
1976 (13) ACC 225 SC, 2002 (44) ACC 168.

(Delivered by Hon'ble Surendra Singh, J.)

1. Aggrieved by the order dated
10.4.2008 passed by ACJM Sant Ravidas
Nagar (Bhadohi), in case no. 209 of 2008,
the revisionist preferred a revision which
was numbered as 54 of 2008, before the
Sessions Judge, Bhadohi which was also
dismissed by the revisional court by order
dated 23.6.2008. Thus, the present writ
petition has been filed before this Court.

2. Heard learned counsel for the
petitioner and learned AGA and have also
perused the entire materials placed on
record.

3. Notices to respondent nos. 2 to 8
are not required to be sent as no adverse
order has been passed against them by the
courts below.

4. Encapsulated facts of the case are
that a complaint was filed by the
complainant, Sanjai Kuamr Chaurasiya
(hereinafter referred to the petitioner) on
24.1.2008 in the court of ACJM Bhadohi,
at Gyanpur against the opposite party nos.
2 to 8 which was registered as criminal
case no. 209 of 2008. It was alleged in the
complaint that despite the order of the
status quo passed by the Hon'ble High
Court, on 16.12.2007 at about 6.30 p.m.,
the opposite party nos. 2 to 8 with the
common
intention
came
on
the
bhumidhari land of the petitioner having
armed with motely weapons such as axe,
lathi, danda etc started cutting the trees
and bushes and when the petitioner
stopped them from doing so, on the
instigation of the opposite party no. 2, all
of them entered into the house of the
petitioner and caused injuries with lathi,
danda, kicks and fists and thereupon when
the mother of the petitioner and brother,
Munna Lal and Ajai Kumar came for his
rescue, they too were assaulted. The
opposite
party
no.2,
Hari
Shanker
thereafter, fired with his country made
pistol causing panic terror in the family. It
has been further alleged that soon after,
the father of the petitioner also arrived
there and he was also beaten by Suresh,
Mahesh, Ajit and Awadesh Kumar and a
sum of Rs.7000/-(a day's sale amount)
was snatched from his pocket and coaccused Algoo, thereafter, attacked upon
his father with knife albeit, he was saved
unhurt. It has further been alleged that co-
740 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
accused Kamla Devi and Sarita Devi
opposite party nos. 4 and 7 with the
connivance of rest of the accused persons
destroyed the furniture and other domestic
articles of the house causing huge
monetary loss to the petitioner. It has also
been alleged that opposite party no. 8,
Algoo made an assault upon the petitioner
causing head injury by the butt of the
knife and snatched his golden chain.

5. In support of the complaint, the
petitioner got himself examined under
Section 200 Cr.P.C. on 24.1.2008 and
thereafter, the statement of Indrajit (pw1), Raj Kumar (pw-2), Jagdish Kumar
Chaurasiya
(pw-3),
Sushila
(pw-4),
Ghanshyam (pw-5) and Dr. K.S. Rai (pw6) was recorded under Section 202 Cr.PC.
After
hearing
the counsel for the
complainant, learned ACJM vide his
impugned
order
dated
10.4.2008
dismissed the complaint holding that the
allegations made in complaint and in the
statement of the witnesses are wholly
improper and are not supported by the
documentary evidence. Thus, the ground
to summon the accused persons/ the
opposite parties are not sufficient.

6. It was contended by the learned
counsel for the revisionist that learned
ACJM has committed gross illegality in
making detail assessment of the evidence
and dismissing the complaint on the basis
of non production of the documentary
evidence in support of the allegations
made, as well as the improbability of the
allegations contained therein.

7. It has also been contended that at
the stage of Section 202 Cr.PC. only
prima facie case to proceed against the
accused persons is to be seen and the
evidence led by the complainant is not to
be assessed with a view of possibility of
the conviction of the accused likely to be
summoned.

8.

Learned
counsel
for
the
revisionist in support of his assertion
relied upon the below noted cases;

1. Ghanshyam Singh vs. State of U.P
2008(60) ACC 780.
2. Nirmal Jit Singh Hoom Vs. State of
West Bengal and another 1973(10)
ACC 181 SC.
3. Smt.
Nagwa
vs.
Veeranna
Shivalinguppa Konglgi and other
1976 (13) ACC 225 SC.

9. Having given my thoughtful
consideration to the aforesaid submissions
and the cases cited by the learned counsel
for the petitioner in support of his
contention as well as on the perusal of the
material placed on record of the case, I
am of the complete in agreement with the
contention raised by the learned counsel
for
the
petitioner
that
ACJM
has
committed gross manifest error of law and
gross
illegality
in
dismissing
the
complaint.

10. It is settled position that at the
stage of passing order under Section 203
or 204 Cr.P.C. only prima facie offence is
to be seen and not that the court must
arrive to the satisfaction that there exists a
possibility of conviction of the accused
persons so summoned. It has been held in
the case of SW Panikkar Vs. State of
Bihar 2002 (44) ACC 168.

"In case of complaint under Section
200, Cr.PC. or IPC a Magistrate can take
cognizance of the offence made out and
then has to examine the complainant and
his witnesses if any, to ascertain whether
3 All] Bahraich Deen V. Board of Revenue, Lucknow and others
741
prima faice case is made out against the
accused to issue process so that the issue
of process is prevented on a complaint
which is either false or vexatious or
intended only to harass. Such examination
is provided in order to find out whether
there is or not sufficient ground for
proceeding. The word 'sufficient ground'
used under Section 203 Cr.P.C. have to
be construed to mean the satisfaction that
a prima facie case is made out against the
accused and not sufficient ground for the
purpose of conviction."

11. It is true that often, complaints
are filed under Section 200 Cr.P.C. with a
motive
or
to
cause
unnecessary
harassment, to wreck vengeance, to
pressurise the opponent to bring them to
their own terms etc instead of preferring
an
alternative
remedy
by
way
of
approaching civil court. Thus to meet out
with these situation before issuing the
process a Magistrate has to essentially
keep in mind the scheme contained in the
provision of Section 200 to 204 Cr.P.C.
Therefore, a Magistrate should pass an
order judicially and not mechanically or
in routine manner.

12. In view of the legal position
herein above and having regard to the
facts stated above, it is clear that after the
enquiry as contemplated under Section
200 and 203 Cr.P.C. if the Magistrate is
satisfied that there is sufficient evidence
to proceed against the accused, he may
issue summon or warrants as the case may
be and it is settled, that at this stage the
court is no required to appraise or
evaluate the evidence as if it was finally
deciding the case.

13. Thus, in my view, having
considered to the facts stated and the legal
position framed above, the Magistrate has
committed a serious error in law.

14. The petition is hereby allowed.

15. The order dated 10.4.2008
passed by ACJM Sant Ravidas Nagar
(Bhadohi) and the order dated 23.6.2008
passed by the revisional court are hereby
set aside. The Magistrate concerned is
directed to make a fresh look into the
matter
keeping
in
view
of
the
observations made above and then pass
order judiciously.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Recall/ Modification Application
No. 7046 of 2004

Bahraich Deen

...Petitioner
Versus
Board of Revenue, Lucknow and others

 ...Respondents

Counsel for the Petitioner:
Sri Hari Shanker Mishra

Counsel for the Respondents:
Sri V. K. Singh
Sri R.K. Srivastava
S.C.

Land Revenue Act-Section 28-correction
of
map-by
Chief
Revenue
Officerobjection regarding power of collectorsheld-misconceived-by
G.O.
dated
07.03.1996
the
post
of
CRO
re
designated as Addl. District Magistratein view of full bench decision of Brahm
Singh case-Addl Collectors entitled to
exercise the power of Collector under
section 14(A)14 of LR Act.