# Smt. Gudiya v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-16
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gudiya-v-state-of-u-p-ors-50871
- **Pages:** 9

## Headnote

A. Constitution of India, 1950-Article 227Criminal
Procedure
Code,1973-Section
311-In the instant case, revisional court
found that some of the material witnesses
992 INDIAN LAW REPORTS ALLAHABAD SERIES
such as medical officer/doctor were not
produced, which ought to have been
examined in a case exclusively triable by
the session court-deceased did not die of
any injury and she died a natural deathInvestigating officer did not find adequate
material to charge sheet the accused
persons and closed the case by filing a
final report-the powers conferred upon
the court u/s 311 Crpc have real purposethough the doctor and any other formal
witness may not be 'his witness' but
definitely the courts power to summon
them
remains
unaffected-Hence,
no
interference requires.(Para 1 to 19)

B. The provisions of section 311 Cr.P.C.
shall apply even at the stage of inquiry.
The trial court or the inquiry court may
summon any material witness/witnesses
which are necessary to be examined for
just decision. It will be rather unwise to
put fetters on a court whether it is a trial
court, inquiry court, the court of appeal or
a revisional court, where it seeks to
exercise its powers for production of some
important witness for just decision in the
matter.(Para 13 to 16)

The petition is dismissed. (E-6)

List of cases cited:

## Text

1 All. Smt. Gudiya Vs. State of U.P. & Ors.
991
Sub-Section (1) of such offences as are
within his competence to inquire into or
try."

The above provisions speak of
"taking cognizance of an offence". In my
view, offence is a wider term and cannot
be construed to mean only particular
sections defining any particular offence
in IPC or any other penal law. When an
offence is committed, more than one
sections may be attracted. At the time of
taking cognizance, the court shall broadly
look into material to find out what
offence/offences are made out, however
at the time of framing of charge, the court
is expected to look into material on
record and decide upon, in which
particular section the offence is falling.
This is not to say that at the time of
taking cognizance particular section of
law have not be mentioned or need not to
be mentioned. This is just to make a
distinction between the two stages in a
case. I do not agree with the proposition
that once cognizance of an offence is
taken
and
particular
sections
are
mentioned in the cognizance order, the
court shall have no scope to alter or add,
on those sections at the time of framing
of charge, whether at the stage of section
240 Cr.P.C. or section 246(1) Cr.P.C.

Broadly, there are four stages in
a criminal proceeding; the stage of taking
cognizance, the stage of framing of
charge, the stage of evidence and the
stage of judgment. A distinction has to be
maintained as regard duty entrusted on a
court, the powers of the court to proceed
and difference in judicial approach at
different stages. Definitely, as the case
proceeds from the stage of cognizance to
stage of framing of charge, and onwards
the proceedings begins to take shape, the
loose ends are tightened and the appraoch
becomes more and more penetrative.

16. In this case, at the time of framing
of charge, the learned trial court heard both
the sides. The attention of the court was
brought to the fact that medical report of
Yashveer showed grievous injuries caused
by sharp edged weapon and that there was
facial disfigurement and that the lobule of
the ear had been cut through and through
and was missing. On the basis of material
already on record, the court came to a
conclusion that besides charges under
sections under sections 147, 148, 149, 323,
324, 325, 504 and 506 IPC, a charge under
section 326 IPC is also needed to be framed
and accordingly proceeded.

17. In view of the above discussion, I
do not find any merit in the petition,
therefore, it is dismissed.
----------
(2024) 1 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 12091 of 2022 (Criminal)

Smt. Gudiya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raghuvansh Misra

Counsel for the Respondents:
G.A., Sri Alok Singh, Sri Deepak Dubey

A. Constitution of India, 1950-Article 227Criminal
Procedure
Code,1973-Section
311-In the instant case, revisional court
found that some of the material witnesses
992 INDIAN LAW REPORTS ALLAHABAD SERIES
such as medical officer/doctor were not
produced, which ought to have been
examined in a case exclusively triable by
the session court-deceased did not die of
any injury and she died a natural deathInvestigating officer did not find adequate
material to charge sheet the accused
persons and closed the case by filing a
final report-the powers conferred upon
the court u/s 311 Crpc have real purposethough the doctor and any other formal
witness may not be 'his witness' but
definitely the courts power to summon
them
remains
unaffected-Hence,
no
interference requires.(Para 1 to 19)

B. The provisions of section 311 Cr.P.C.
shall apply even at the stage of inquiry.
The trial court or the inquiry court may
summon any material witness/witnesses
which are necessary to be examined for
just decision. It will be rather unwise to
put fetters on a court whether it is a trial
court, inquiry court, the court of appeal or
a revisional court, where it seeks to
exercise its powers for production of some
important witness for just decision in the
matter.(Para 13 to 16)

The petition is dismissed. (E-6)

List of cases cited:

1. Dilip & ors.Vs St. of U.P. & anr.. CRLR No. 93
of 2020

2. Kallu Pal & ors.Vs St. of U.P & anr. (2008) 3
ADJ 254

3. Shivjee Singh Vs Nagendra Tiwary &
ors.(2010) 7 SCC 578

4. Dr. Divya Nand Yadav & anr. Vs St. of U.P. &
anr. CRLA No. 9188 of 2022

5. Fiona Shrikhande Vs St. of Mah. & anr.
(2013) 14 SCC 44

6. Pepsi Food Ltd & anr. Vs Spl. J. M. &
ors.(1998) 5 SCC 749

7. Ram Kishore Singh Vs St. of U.P. & ors.CRLR
No. 2078 of 2000
(Delivered by Mrs. Jyotsna Sharma, J.)

1. Heard Raghuvansh Misra, learned
counsel for the petitioner, Sri Alok Singh,
learned counsel for private respondent nos.
2 to 6 and Sri S.C. Mishra, learned AGA
for the State.

2. This petition under Article 227 of
the Constitution has been filed by the
petitioner claiming following relief:-

"(i) issue an appropriate order
or direction to set aside the order dated
17.10.2022 of Sri Vivek Sangal, Sessions
Judge, Agra in Criminal Revision no. 93
of 2020 (Dilip and others versus State of
U.P. and another)."

3. Relevant facts are as below:-

•
Smt.
Gudiya
moved
an
application under section 156(3) Cr.P.C.,
on the basis whereof case no. 51 of 2019
under sections 147, 148, 149, 323, 325,
452, 504, 506 and 302 IPC was registered.
The allegations in nutshell are that the
father and brother in-law of the informant
were assaulted with 'lathi-danda'. They
managed to escape. 10 minutes later, the
accused persons namely, Than Singh,
Dilip, Pawan armed with firearms and other
accused persons namely, Sunil, Anil, Lalit
and Sachin carrying lathi, danda, farsa
came to the informant's house and
assaulted her mother in-law Patri Devi.
Accused
Dilip
and
Pawan
fired
at
Mahendra and Sachin, which accidentally
hit not them, but Anil and Lalit i.e., two of
the assailants themselves. Patri Devi died
on the spot. Suresh and Hakim Singh
suffered fractures.

• The story in the application
under
section
156(3)
Cr.P.C.
also
mentioned the fact that she tried to lodge an
1 All. Smt. Gudiya Vs. State of U.P. & Ors.
993
FIR but the same was not registered by the
police. Instead an FIR case crime no. 665
of 2018 was registered against husband of
the informant and several others.

After investigation, a final report
was submitted by the police.

The first informant filed a protest
petition. The CJM, Agra rejected the final
report and treated the protest petition as
complaint by order dated 09.09.2019.

The court proceeded and examined
her and her witnesses. The complainantGudiya was examined under section 200
Cr.P.C. Her witness-Vijay as CW1, Laxmi
Devi as CW2, Phoolwati as CW3, Dr. C.P.
Rawat as CW4, Dr. Sumit Kumar Singh as
CW5 and Hakim Singh as CW6 were
examined under section 202 Cr.P.C.

The
CJM,
by
order
dated
12.03.2020,
summoned
accused
Than
Singh under sections 147, 148, 149, 323,
452, 304, 504 IPC; Dilip and Anil under
sections 147, 148, 149, 323, 452, 504 IPC;
Sunil and Sachin under sections 147, 148,
149, 323, 452, 307, 504 IPC.

The aforesaid accused persons
preferred a criminal revision no. 93 of 2020
against summoning order. The revisional
court by order dated 17.10.2022 directed
the Magistrate concerned to pass a fresh
order in the light of the observations of the
revisional
court
and
set
aside
the
summoning order.

Now the complainant is before
this court challenging the order of the
revisional court.

4. The submissions of the petitioner
are that the revisional court went beyond its
jurisdiction. It re-appreciated the evidence
on record, which cannot be done by the
revisional court. Further, it is argued that
the direction of the revisional court to
direct the complainant to produce some
more witnesses, is wrong as formal
witnesses cannot be said to be the witness
of the complainant. Contention of the
petitioner is based on proviso to subsection (2) to section 202 Cr.P.C., which is
as below:-

"In an inquiry under SubSection (1), the Magistrate may, if he
thinks fit, take evidence of witness on
oath; Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session,
he
shall
call
upon
the
complainant to produce all his witnesses
and examine them on oath."

5. On the basis of above provision, it
is argued that the formal witnesses like the
doctor and the head moharrir, cannot be
categorised as his witnesses, therefore he
was not obliged to produce them.

The petitioner refers to the
judgment of the Allahabad High Court
given in Kallu Pal and Others vs. State of
U.P. and Another; 2008 (3) ADJ 254. The
High Court observed in para nos. 3 and 4 as
below:-

"3. The word "his witness"
occurring in the proviso to Sub-section 2
of Section 202 Cr.P.C. is of material
significance. The formal witnesses, such
as doctor, Investigation Officer, Executive
Magistrate, Police constable etc are not
under the command of the complainant.
They are not the witnesses of the
complainants confidence. Hence they are
not "his witnesses". Thus the formal
994 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses are not covered by the proviso to
Section 202(2) Cr.P.C.

4. The complainant is bound to
produce only those witnesses of facts
whom he intends to produce in the court
of Sessions. The witnesses of fact who are
not produced under Section 200 or 202
Cr.P.C, cannot be produced by him, in the
court of Sessions. The complainant is not
bound to produce those witnesses of fact,
whose names are, though mentioned in
the complaint but who are not intended to
be produced by him in the Court of
Sessions."

6. The State and the private
respondent have not countered the above
proposition of law by bringing into this
court's notice any contrary law laid down
by the High Court or the Supreme Court in
this respect.

7. I do not propose to defer from the
interpretation of the word "his witness" as
mentioned in the judgment of Kallu Pal and
Others (supra). In my view, the purpose of
proviso to section (2) of section 202 Cr.P.C.
shall fail if the Court/Magistrate do not play
their own role.

8. In a matter before the Supreme
Court in Shivjee Singh vs. Nagendra
Tiwary and others, (2010) 7 SCC 578, the
issue was whether proviso to section 202(2)
Cr.P.C. was mandatory and whether the
Chief Judicial Magistrate committed a
serious error in taking cognizance against
the respondents without insisting on the
examination of remaining two witnesses.
The Supreme Court in para no. 7 of the
judgment held as below:-

"7. We have considered the
respective
submissions.
By
its
very
nomenclature, Cr.P.C. is a compendium
of law relating to criminal procedure. The
provisions contained therein are required
to be interpreted keeping in view the well
recognized rule of construction that
procedural prescriptions are meant for
doing substantial justice. If violation of
the procedural provision does not result in
denial of fair hearing or causes prejudice
to the parties, the same has to be treated
as directory notwithstanding the use of
word `shall'."

After observing as above, the
Supreme Court further elaborated the law
as to enquiry in section 202 Cr.P.C. and
then in para nos. 11, 12 and 13 touched
upon 'satisfaction of the Magistrate' before
he could proceed to summon the accused.

Para nos. 11, 12 and 13 of the
Supreme Court's judgment are as below:-

"11. Section 202(1)empowers the
Magistrate to postpone the issue of
process against the accused and either
inquire into the case himself or direct an
investigation to be made by a police officer
or by such other person which he thinks
fit for the purpose of deciding whether or
not there exists sufficient ground for
proceeding. By Amending Act No.25 of
2005, the postponement of the issue of
process has been made mandatory where
the accused is residing in an area beyond
the
territorial
jurisdiction
of
the
concerned Magistrate. Proviso to Section
202(1) lays down that direction for
investigation shall not be made where it
appears to the Magistrate that the offence
complained of is triable exclusively by the
Court of Sessions or where the complaint
has not been made by a Court unless the
complainant and the witnesses have been
examined on oath under Section 200.
1 All. Smt. Gudiya Vs. State of U.P. & Ors.
995

12. Under Section 202(2), the
Magistrate making an inquiry under subsection (1) can take evidence of the
witnesses on oath. If the Magistrate thinks
that the offence complained of is triable
exclusively by the Court of Sessions then
in terms of proviso to Section 202, he is
required to call upon the complainant to
produce all his witnesses and examine
them on oath.

13. Section 203 empowers the
Magistrate to dismiss the complaint if,
after considering the statements made by
the complainant and the witnesses on oath
and
the
result
of
the
inquiry
or
investigation, if any, made under Section
202(1), he is satisfied that there is no
sufficient ground for proceeding. The
exercise of this power is hedged with the
condition that the Magistrate should
record brief reasons for dismissing the
complaint. Section 204, which talks of
issue of process lays down that if the
Magistrate taking cognizance of an
offence is of the view that there is
sufficient ground for proceeding then he
may issue summons for attendance of the
accused in a summons-case. If it is a
warrant-case, then the Magistrate can
issue warrant for causing attendance of
accused."

A thing which is relevant to point
out is that after referring to the procedure
which could be adopted under section
202(1) and 202(2) Cr.P.C., the Supreme
Court spoke of sufficient ground to proceed
and the Magistrate's satisfaction thereon.

Further in concluding paras of the
judgment,
the
court
held
that
nonexamination of all the witnesses by the
complainant as per the provisions of
proviso to section 202(2) Cr.P.C. would not
vitiate the proceeding and it will not
preclude
the
Magistrate
from
taking
cognizance and issue process or passing a
committal order if he is satisfied that there
existed sufficient ground for doing so.

9. In my view, the Supreme Court
found it desirable that the complainant is
directed to examine all his witnesses,
however in case the complainant failed to
produce any one or one more of his
witnesses for some reason that cannot be a
ground to assail the summoning order or
the committal order. The Supreme Court, in
my opinion, did not put any bar on the
powers of the Magistrate or the court
concerned to summon any of the witnesses,
whether from the list of witnesses furnished
by the complainant or any other person not
from the list, for the purpose of arriving at
requisite satisfaction.

This aspect of the matter shall
be clearer by going through the view as
taken by Allahabad High Court given in
Criminal Appeal No. 9188 of 2022 (Dr.
Divya Nand Yadav and Another vs. State
of U.P. and Another) decided on
20.04.2023. It may be noted that the
proceedings before a Magistrate under
section 202 Cr.P.C. fall under the head of
'inquiry' as juxtaposed to trial or
investigation as defined in section 2(g)
and 2(h) Cr.P.C. Further Section 202
Cr.P.C. speaks of 'inquiry' into the case
by the Magistrate himself. The law casts
burden on the Magistrate to conduct an
inquiry himself. The manner in which the
provision is worded gives an impression
that Magistrate is expected to play an
active role and that he cannot afford to be
a passive spectator. This point of view
has been dealt with in the judgment of
Dr. Divya Nand Yadav and Another
(supra).
996 INDIAN LAW REPORTS ALLAHABAD SERIES

It was held in para nos. 8 and 9 as
below:-

"8.
It
is
clear
that
the
examination of witnesses under Section
202 Cr.P.C., as is popularly known, is in
fact part of inquiry which a Magistrate
may conduct in cases he does not find
enough of grounds to immediately proceed
to summon the accused. Though not
always, this part of procedure too has
become a routine matter. In almost all the
cases based on complaint, the witnesses
are examined without realizing the fact
that such a step shall be unnecessary if
the Magistrate/the court concerned is
satisfied that prima facie case is made out,
on the basis of the examination of the
complainant and his witnesses at previous
stage of the case i.e. section 200 Cr.P.C.
Where the Magistrate finds himself short
of requisite level of 'satisfaction' then only
he may decide to further probe into by
ordering
for
examination
of
more
witnesses. The reasons behind jumping to
the next step of Section 202 Cr.P.C. have
gone in to oblivion in the rush of work
and almost routinization of things.

9. The phrase occurring in
Section 202 Cr.P.C. "inquire into the case
himself" enjoins the Magistrate that he
actually plays its part by examining the
witnesses himself, rather than depending
upon the statements which might be
clouded, cryptic, obscure or ambiguous
and sometime very direct and bald. The
experience in courts strengthens the
impression that more often then not
unsupervised, one sided statement may
have more to conceal than to reveal. It is
said that law is a living being. It grows
and develops according to the exigencies
of the times. It will not be out of context to
mention that the superior courts have
observed in a number of cases that the
trial courts ought to be quite alert when
they decide to take cognizance or summon
the accused persons, may be at the stage
of Section 204 Cr.P.C. or otherwise. The
superior courts have consistently kept on
cautioning
the
courts
to
be
quite
circumspect, careful, alert and wakeful
while putting the legal machinery in
motion. The vicissitudes of cases, peculiar
facts and situations do impact the
interpretations of law and contribute
towards the developments and progress of
legal arena."

10. The court in Dr. Divya Nand
Yadav and Another (supra) equated the
word 'prima facie satisfaction' with the
sufficient ground to proceed on the basis of
the judgment of the Supreme Court passed
in
Fiona
Shrikhande
vs.
State
of
Maharashtra and Another; (2013) 14 SCC
44. The relative scope of Sections 203 and
204 Cr.P.C. were noted and considered by
the Supreme Court in Pepsi Food Limited
and
another
vs.
Special
Judicial
Magistrate and others; (1998) 5 SCC 749,
is as below:-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter
of course. it is not that the complainant
has to bring only two witnesses to support
his allegations in the complaint to have
the criminal law set into motion. The
order of the magistrate summoning the
accused must reflect that he has applied
his mind to the facts of the case and the
law applicable thereto. He has to examine
the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would
that be sufficient for the complainant to
succeed in bringing charge home to the
1 All. Smt. Gudiya Vs. State of U.P. & Ors.
997
accused. It is not that the Magistrate is a
silent spectator at the time of recording
of
preliminary
evidence
before
summoning of the accused. Magistrate
has to carefully scrutinise the evidence
brought on record and may even himself
put questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness
of
the
allegations
or
otherwise and then examine if any
offence is prima facie committed by all
or any of the accused."

The Supreme Court emphasized
the need that the Magistrate should not sit
like a silent spectator.

In para no. 14 of the judgment
of Dr. Divya Nand Yadav and Another
(supra), this court has held as below:-

"14. The fact of the matter is
that the court shall not proceed in a
mechanical or a routine manner. It shall
apply its mind, which is called a judicial
mind and discretion as well. The
court/the Magistrate, though shall not
go deep into the evidence given and
shall not weigh the evidentiary value in
a meticulous manner. Except this rider,
there is no other obstacles before the
court below for arriving at the "prima
facie satisfaction" a word which can be
equated with the word "prima facie
case".

11. A question may arise that in
case the complainant for some reason,
whether justifiable or not so justifiable,
either cannot produce its witness or
deliberately withholds any of them, then
what course is available to the Magistrate,
who is conducting an 'inquiry'. Can he be
left at the mercy of the complainant? There
may be instances where a Magistrate may
find that something more is required before
he can record his 'prima facie satisfaction'
with regard to summoning of the accused.

12. Moreover, a situation may arise
where in a genuine case put before the
court, the complainant is helpless in
producing even 'his witness' for some
extraneous reason. In such a situation
definitely he has an option to apply to the
court for summoning those witnesses,
which he cannot produce himself.

13. In my opinion, section 311
Cr.P.C. is framed to rescue situations,
particularly in cases where the Magistrate
is of the view that certain person/witness
must be examined before he can record his
'satisfaction' to proceed against certain
persons. Such person may or may not be
from the list. In case name of such witness
finds place in the list, the complainant may
not be willing to produce him for some
reason. Same applies where name of an
important witness is deliberately left out of
the list.

Section 311 Cr.P.C. is as below:-

"311. Power to summon material
witness, or examine person present. Any
Court may, at any stage of any inquiry,
trial or other proceeding under this Code,
summon any person as a witness, or
examine any person in attendance, though
not summoned as a witness, or. recall and
re- examine any person already examined;
and the Court shall summon and examine
or recall and re- examine any such person
if his evidence appears to it to be essential
to the just decision of the case."

14. From bare perusal, it is evident
that the provisions of section 311 Cr.P.C.
shall apply even at the stage of inquiry. The
998 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court or the inquiry court may summon
any material witness/witnesses which, in its
opinion, are necessary to be examined for
just decision. It will be rather unwise to put
fetters on a court whether it is trial court,
inquiry court, the court of appeal or a
revisional court, where it seeks to exercise
its
powers
for
production
of
some
important witness for just decision in the
matter. It is not at all necessary that when a
court chooses to exercise its powers, it
should specifically mention under which
provision of law such powers are being
exercised.

15. In the instant case, the learned
revisional court, after hearing both the sides
found a number of facts and circumstances
relating to the matter, which needed
attention. It may be noted that respondent's
main contention is that Patri Devi did not
die of any injury and that she died a natural
death. Further that after investigation, the
investigating officer did not find adequate
material to chargesheet the accused persons
and closed the case by filing a final report;
The court was attentive to the fact that
there was a criminal case already registered
against the complainant's husband and
number of others, (case crime no. 665 of
2018) under sections 147, 148, 149, 302,
307, 504 IPC. The revisionist had before
the revisional court, argued that a false FIR
against
them
was
lodged
by
the
complainant to create a defence in their
favour and to exert pressure on them to
settle scores in the wake of pending
criminal case against the other side. This
fact was also brought into notice of the
revisional
court
that
the
medical
officer/doctor, who prepared medical report
of Hakim Singh was not produced by the
complainant and there were certain other
relevant papers in respect of which witness
were not produced. Besides above material
facts, brought into notice of revisional
court, some other submissions were made
with regard to summoning order by the
revisionist.

I perused the order passed by the
revisional court. The revisional court has
given cogent reasons for setting aside the
order of the trial court. The revisional court
further found that some of the material
witness were not produced, which ought to
have been examined in a case exclusively
triable by the session court.

16. In my view, the powers conferred
upon the court under the provisions of
section 311 Cr.P.C. have a real purpose.
When a court properly exercises such
powers in interest of justice, the court
exercising supervisory powers should be
slow to interfere. Moreover, though the
doctor and any other formal witness may
not be 'his witness' but definitely, the
court's power to summon them remains
unaffected.
The
complainant-petitioner
cannot take shelter of the judgment
pronounced by the High Court in Kallu Pal
and Others (supra) to circumvent the
powers of the inquiry court or the court of
revision, which have been provided by
statutory law. In my view, even if certain
witnesses are not or cannot be produced by
the complainant, on the premise that those
witnesses were not 'her witnesses' and not
under his command, the court is perfectly
within its powers to summon and examine
them.

17. The respondent has raised an
objection against the maintainability of this
petition
and
places
reliance
on
the
judgment of the Bench of this Court passed
in Criminal Revision no. 2078 of 2000
(Ram Kishore Singh vs. State of U.P. and
Others). In the aforesaid case before the
1 All. Jayant Srivastava Vs. Prescribed Authority, Payment of Wages Act, 1936, Kanpur & Ors.
999
High Court, a common judgment and order
passed by the Sessions Judge, Varanasi in
two criminal revisions, whereby both the
criminal revisions were allowed, was
challenged. The revisional court had held
that when a specific task was given to the
Magistrate, he ought to have performed in
true spirit of order of the court. The
revisional court had set aside the order of
the C.J.M. concerned, expressing surprise
that the main appellant, the circle officer
was absolved of the charge, while public
persons who were said to be merely
standing there, were made accused under
section 34 IPC. The revisional court had
sent back all the record directing the
C.J.M., Varanasi for passing a fresh order,
after considering all material facts and
circumstances. The order of the revisional
court was challenged before the Allahabad
High Court. In para no. 17 of the judgment,
the Allahabad High Court observed that the
Sessions Judge had only set aside the order
of the learned Magistrate and to pass an
order a fresh and therefore the parties
would have another opportunity to address
the Magistrate's court. Hence, there was no
need to rush to High Court. The court
expressed a view that such an order falls
within the order of interlocutory order.

18. This may be noted at this juncture
that the present petition has been filed
under Article 227 of the Constitution of
India and the principles, if any, laid down
in the above noted judgment cited by the
respondents, definitely do not apply here.
The issue here is quite different. In the
instant case, the revisional court made
certain cogent observations in the backdrop
of certain facts and circumstances. It was of
the view that in the light of the contention
that the deceased-Patri Devi died a natural
death, the evidence of the doctor and
another witness ought to have been
recorded, before the Magistrate could have
decided the matter of summoning. When
the allegations are of serious nature, the
courts have to be extra cautious and
careful. And this view finds support from
the judgment of the Supreme Court in
Pepsi Food Limited and another (supra).

19. In my view, there is no good
ground to interfere in the impugned order.
Hence, the petition is dismissed.
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(2024) 1 ILRA 999
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Matters U/A 227 No. 12595 of 2023 (Civil)

Jayant Srivastava ...Petitioner
Versus
Prescribed Authority, Payment of Wages
Act, 1936, Kanpur & Ors. ...Respondents

Counsel for the Petitionera:
Sri Prabhav Srivastava

Counsel for the Respondents:
Sri Satyendra Narayan Singh, Sri Ishan
Mehta (Addl. C.S.C.)

A. Constitution of India, 1950-Article
227-Payment of Wages Act, 1936-Section
17-maintainability
of-Court
of
small
causes
or
the
District
Court,
while
exercising the power under section 17(1)
of the Act, 1936 functions as a Civil Court
and not as persona designate-When the
district court decides an appeal u/s 17 of
the Act, the High Court has power to
revise an order passed by the District
court-Hence, the order passed in exercise
of such power is amenable under Article
227 of the Constitution of India.(Para 13
to 27)