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

- **Citation:** (2023) 10 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-17
- **Case number:** Crl. Misc. Writ Petition No. 6908 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rooma-v-state-of-u-p-ors-49506
- **Pages:** 6

## Headnote

A. Criminal Law-Constitution of India,1950Article 226 & Indian Penal Code,1860Sections 376, 392-After investigation the
Investigating Officer has found that the
allegation of commission of the aforesaid
offence could not be established and he
submitted a report-the petitioner has not
filed any application before the trial Court
praying for addition of the charge-Hence,
the trial court has not committed any
illegality in not taking cognizance of offence
u/s 376 IPC.(Para 1 to 9)

B. The petitioner has also sought for
issuance of a Writ of Mandamus for taking
legal action against the DGP and other
police officers for the violation of section
173(1) and (1A) Cr.P.C.-Held-for issuance
of writ of mandamus, the existence of a
legally enforceable right and denial thereof
in spite of a specific demand having been
made, are essential pre-requisite conditionsThere is nothing on record to indicate that
the application was actually given or sent to
the D.G.P.-The applicant must make a
demand which is clear and it must be made
to an officer having the requisite authority
to perform the act demanded. Furthermore,
the authority against whom mandamus is
issued, should have rejected the demand
earlier.(Para 10 to 18)

The writ petition is dismissed. (E-6)

List of Cases Cited:

## Text

688 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Trial Court. The appeal is,
accordingly, dismissed.

Accused/appellant Kalim Asgar is in
jail since 25.06.2014. He shall serve out the
remaining period of the sentence in terms
of the impugned Judgment and Order dated
05.10.2019 passed by the Trial Court.

Office is directed to transmit a
certified copy of this Judgment and Order
to the concerned Court for necessary
information and compliance. It is further
directed that the original record of the case be
returned forthwith which shall be kept safely
by the Trial Court.
----------
(2023) 10 ILRA 688
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Writ Petition No. 6908 of 2023

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

Counsel for the Petitioner:
Syed Azizul Hasan Rizvi

Counsel for the Respondents:
G.A.

A. Criminal Law-Constitution of India,1950Article 226 & Indian Penal Code,1860Sections 376, 392-After investigation the
Investigating Officer has found that the
allegation of commission of the aforesaid
offence could not be established and he
submitted a report-the petitioner has not
filed any application before the trial Court
praying for addition of the charge-Hence,
the trial court has not committed any
illegality in not taking cognizance of offence
u/s 376 IPC.(Para 1 to 9)

B. The petitioner has also sought for
issuance of a Writ of Mandamus for taking
legal action against the DGP and other
police officers for the violation of section
173(1) and (1A) Cr.P.C.-Held-for issuance
of writ of mandamus, the existence of a
legally enforceable right and denial thereof
in spite of a specific demand having been
made, are essential pre-requisite conditionsThere is nothing on record to indicate that
the application was actually given or sent to
the D.G.P.-The applicant must make a
demand which is clear and it must be made
to an officer having the requisite authority
to perform the act demanded. Furthermore,
the authority against whom mandamus is
issued, should have rejected the demand
earlier.(Para 10 to 18)

The writ petition is dismissed. (E-6)

List of Cases Cited:

1. Savitri Devi Vs DJ, Gorakhpur (1999) 2 SCC 577

2. Jogendrasinhji Vijaysinghji Vs St. of Guj. (2015)
9 SCC 1,

3. Saraswati Industrial Syndicate Ltd. Vs U.O.I.
(1974) 2 SCC 630

4. Raj. St. Industrial Dev. & Investt. Corp. Vs
Diamond & Gem Dev. Corp. Ltd. (2013) 5 SCC 470

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Syed Azizul Hasan Rizvi,
the learned counsel for the petitioner and Sri
Rao Narendra Singh, learned Additional
Government Advocate-I for the State and
perused the records.

2. By means of the instant petition
filed under Article 226 of the Constitution
of India the applicant has prayed for the
following reliefs: -
10 All. Smt. Rooma Vs. State of U.P. & Ors.
689

"i. To issue an order or direction to
the Opposite Party No. 2 to take
cognizance and summon the accused
Opposite Party No. 12 under section 376
and 392 I.P.C. considering the material,
evidence, statements of witnesses esp. the
statements of the petitioner recorded under
Sections 161 & 164 Cr.P.C. available on
the record submitted by the police and
considering the findings of the opposite
party no. 2 itself in para no. 2 of its own
summoning
order
dated
21.03.2023
contained at Annexure No. 3 in the interest
of justice.

ii. To issue a writ order or direction in
the nature of MANDAMUS directing the
Opposite Party No. 3 to take stern and
effective legal actions against the Opposite
Party No. 4 to 11 for openly and flagrantly
violating the specific provisions of law
contained under section 173 (1) (1A)
Cr.P.C and the Circulars Nos. 35/2018
dated 05.07.2018 and 18/2022 dated
06.07.2022 issued by the office of the
Opposite Party No. 3 itself in the interest of
justice.

iii. Any other order or direction which
this Hon'ble court may deem just, fair and
appropriate
under
the
facts
and
circumstances of the case, may, also, be
passed in favour of the petitioner."

3. The Additional Chief Judicial
Magistrate-III,
Lucknow
has
been
impleaded as the opposite party no. 2.

4. In Savitri Devi Vs. District Judge,
Gorakhpur, (1999) 2 SCC 577, the
Hon'ble Supreme Court deprecated the
practice of Courts being impleaded as
opposite parties. The relevant portion of the
judgment is being reproduced below: -

"14. Before parting with this case it is
necessary for us to point out one aspect of
the matter which is rather disturbing. In the
writ petition filed in the High Court as well
as the Special Leave Petition filed in this
Court, the District Judge, Gorakhpur and
the 4th Additional Civil Judge (Junior
Division)
Gorakhpur
arc
shown
as
respondents and in the Special Leave
Petition they are shown as contesting
respondents. There was no necessity for
impleading the judicial officers who
disposed of the matter in a civil proceeding
when the writ petition was filed in the High
Court; nor is there any justification for
Impleading them as parties in the Special
Leave Petition and describing them as
contesting respondents. We do not approve
of the course adopted by the petitioner
which
would
cause
unnecessary
disturbance to the functions of the
concerned judicial officers. They cannot be
in any way equated to the officials of the
Government. It is high time that the
practice of impleading judicial officers
disposing of civil proceedings as parties to
writ petitions under Article 226 of the
Constitution of India or Special Leave
Petitions
under
Article
138
of
the
Constitution of India was stopped. We are
strongly depricating such a practice."

5. In Jogendrasinhji Vijaysinghji v.
State of Gujarat, (2015) 9 SCC 1, the
Hon'ble Supreme Court again discussed the
precedents on this point and explained the
same in the following words: -

"43.As we notice, the decisions
rendered inHari Vishnu Kamath[AIR 1955
SC 233 : (1955) 1 SCR 1104] ,Udit Narain
Singh[AIR 1963 SC 786] andSavitri
Devi[Savitri
Deviv.District
Judge,
Gorakhpur, (1999) 2 SCC 577] have to be
properly
understood.
InHari
Vishnu
Kamath[AIR 1955 SC 233 : (1955) 1 SCR
1104] , the larger Bench was dealing with a
690 INDIAN LAW REPORTS ALLAHABAD SERIES
case that arose from Election Tribunal
which had ceased to exist and expressed the
view how it is a proper party. InUdit
Narain Singh[AIR 1963 SC 786] , the
Court was really dwelling upon the
controversy with regard to the impleadment
of parties in whose favour orders had been
passed and in that context observed that
tribunal is a necessary party. InSavitri
Devi[Savitri
Deviv.District
Judge,
Gorakhpur, (1999) 2 SCC 577] , the Court
took exception to courts and tribunals
being made parties. It is apposite to note
here that propositions laid down in each
case have to be understood in proper
perspective. The civil courts, which decide
matters, are courts in the strictest sense of
the term. Neither the court nor the
Presiding Officer defends the order before
the superior court it does not contest. If the
High Court, in exercise of its writ
jurisdiction or revisional jurisdiction, as
the case may be, calls for the records, the
same can always be called for by the High
Court without the Court or the Presiding
Officer being impleaded as a party.
Similarly, with the passage of time there
have been many a tribunal which only
adjudicate and they have nothing to do with
the lis. We may cite a few examples: the
tribunals
constituted
under
the
Administrative Tribunals Act, 1985, the
Customs, Excise and Service Tax Appellate
Tribunal,
the
Income
Tax
Appellate
Tribunal, the Sales Tax Tribunal and such
others. Every adjudicating authority may
be nomenclatured as a tribunal but the said
authority(ies) are different from that pure
and simple adjudicating authorities and
that is why they are called the authorities.
An Income Tax Commissioner, whatever
rank he may be holding, when he
adjudicates, he has to be made a party, for
he can defend his order. He is entitled to
contest. There are many authorities under
many a statute. Therefore, the proposition
that can safely be culled out is that the
authorities or the tribunals, who in law
are entitled to defend the orders passed by
them, are necessary parties and if they are
not arrayed as parties, the writ petition
can be treated to be not maintainable or
the court may grant liberty to implead
them as parties in exercise of its
discretion. There are tribunals which are
not at all required to defend their own
order, and in that case such tribunals need
not be arrayed as parties. To give another
example: in certain enactments, the
District Judges function as Election
Tribunals from whose orders a revision or
a writ may lie depending upon the
provisions in the Act. In such a situation,
the superior court, that is the High Court,
even if required to call for the records, the
District Judge need not be a party. Thus, in
essence, when a tribunal or authority is
required to defend its own order, it is to be
made a party failing which the proceeding
before the High Court would be regarded
as not maintainable.

(Emphasis supplied)

6. When this Court objected to the
trial Court having been made an opposite
party to the Writ Petition, the learned
counsel for the applicant has submitted that
he had impleaded the court even in earlier
Writ Petition No.30880 (M/B) of 2021 and
the writ petition was entertained without
this objection. However, he did not give
any specific reply to the query put by the
court regarding having been impleaded as
an opposite party to the writ petition. The
act of impleading a court as opposite party
is highly improper and it is deprecated and
the mere fact that this fact had not been
noticed in an earlier Writ Petition would
not justify the Court being impleaded in
this Writ Petition.
10 All. Smt. Rooma Vs. State of U.P. & Ors.
691

7. So far as the relief of issuance of a
direction to the learned trial court for taking
cognizance of commission of offence under
Section 376 I.P.C. is concerned, after
investigation the Investigating Officer has
found that the allegation of commission of
the
aforesaid
offence could
not
be
established and he submitted a report under
Section 173 (2) of Cr.P.C. to the Court
stating commission of the offences under
Sections 323, 504, 506 I.P.C. only and the
commission of offence under Section 376
I.P.C. was not included in the charge sheet.

8. Section 190 of the Criminal
Procedure Code, 1973 provides as follows:
-

"190. Cognizance of offences by
Magistrates.-(1) Subject to the provisions
of this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence-

(a) upon receiving a complaint of facts
which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from
any person other than a police officer, or
upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the
second class to take cognizance under
sub-section (1) of such offences as are
within his competence to inquire into or
try."

9. Therefore, the learned trial court
has rightly taken cognizance of the
offence mentioned in the police report
submitted under Section 173 (2) Cr.P.C.,
as provided by Section 190 (1) (b) Cr.P.C.
Section 216 empowers the trial Court to
alter or add any charge, but the petitioner
has not filed any application before the
trial Court praying for addition of the
charge. In these circumstances, this Court
is of the considered view that the trial
Court has not committed any illegality in
not taking cognizance of offence under
Section 376 I.P.C.

10. The petitioner has also sought
for issuance of a Writ of Mandamus to
the Director General of Police for taking
legal action against the opposite parties
no. 4 to 11 for the alleged violation of
Section 173 (1) and (1A) Cr.P.C. and
Circulars
dated
05.07.2018
and
06.07.2018 issued by the D.G.P.

11. For issuance of a writ of
Mandamus, the existence of a legally
enforceable right and denial thereof in
spite of a specific demand having been
made,
are
essential
pre-requisite
conditions.

12. The petitioner claims to have
given an application dated 15.03.2023
requesting for issuing a direction for
arrest of the accused and submission of a
charge sheet. The charge-sheet has
already been submitted and arrest of an
accused person cannot be made on the
mere asking of the complainant. The
petitioner has also requested for issuance
of a direction to the police authorities to
act in accordance with all the orders
passed by the competent Courts and the
provisions of law. This request is vague.
The petitioner has not made any prayer to
the D.G.P. for taking any action against any
other opposite parties.

13. The petitioner does not have any
legally enforceable right for seeking a
direction to the D.G.P. for initiating legal
692 INDIAN LAW REPORTS ALLAHABAD SERIES
action against his subordinate officers for
the alleged delay in completion of
investigation.

14. There is nothing on record to
indicate that the application was actually
given or sent to the D.G.P. and was
received by or delivered to him.

15.

In
Saraswati
Industrial
Syndicate Ltd. Vs. Union of India: (1974)
2 SCC 630, the Hon'ble Supreme Court has
held as under: -

"24. ... The powers of the high Court
under Article 226 are not strictly confined
to the limits to which proceedings for
prerogative writs are subject in English
practice. Nevertheless the well recognised
rule that no writ or order in the nature of a
Mandamus would issue when there is no
failure to perform a mandatory duty applies
in this country as well. Evert in cases of
alleged breaches of mandatory duties the
salutary general rule which is subject to
certain exceptions applied by us as it is in
England when writ of Mandamus is asked
for could be stated as we find it set out in
Halsbury's Taws of England (3rd edition
vol. 13 p. 106):

"As a general rule the order will not be
granted unless the party complained of has
known what it was he was required to do so
that he had the means of considering
whether or not he should comply and it
must be shown by evidence that there was a
distinct demand of that which the party
seeking the mandamus desires to enforce
and that that demand was met by a refusal."

16. Again, in Rajasthan State
Industrial Development & Investment
Corporation Vs. Diamond and Gem
Development Corporation. Ltd.: (2013) 5
SCC 470, the Hon'ble Supreme Court has
reiterated the principles in the following
words: -

"21. ... The primary purpose of a writ
of mandamus, is to protect and establish
rights and to impose a corresponding
imperative duty existing in law. It is
designed to promote justice (ex debito
justiceiae). The grant or refusal of the writ
is at the discretion of the court. The writ
cannot be granted unless it is established
that there is an existing legal right of the
applicant, or an existing duty of the
respondent. Thus, the writ does not lie to
create or to establish a legal right, but to
enforce one that is already established.
While dealing with a writ petition, the court
must exercise discretion, taking into
consideration
a
wide
variety
of
circumstances, inter-alia, the facts of the
case, the exigency that warrants such
exercise of discretion, the consequences of
grant or refusal of the writ, and the nature
and extent of injury that is likely to ensue
by such grant or refusal.

22.
Hence,
discretion
must
be
exercised by the court on grounds of public
policy, public interest and public good. The
writ is equitable in nature and thus, its
issuance
is
governed
by
equitable
principles. Refusal of relief must be for
reasons which would lead to injustice. The
prime consideration for the issuance of the
said writ is, whether or not substantial
justice will be promoted. Furthermore,
while granting such a writ, the court must
make every effort to ensure from the
averments of the writ petition, whether
there exist proper pleadings. In order to
maintain the writ of mandamus, the first
and foremost requirement is that the
petition must not be frivolous, and must be
filed in good faith. Additionally, the
applicant must make a demand which is
clear, plain and unambiguous. It must be
10 All. Tuphail Ahmad & Ors. Vs. State of U.P. & Ors.
693
made to an officer having the requisite
authority to perform the act demanded.
Furthermore, the authority against whom
mandamus is issued, should have rejected
the demand earlier. Therefore, a demand
and its subsequent refusal, either by words,
or by conduct, are necessary to satisfy the
court that the opposite party is determined
to ignore the demand of the applicant with
respect to the enforcement of his legal
right. However, a demand may not be
necessary when the same is manifest from
the facts of the case, that is, when it is an
empty formality, or when it is obvious that
the opposite party would not consider the
demand."

(Emphasis supplied)

17. As the petitioner has no legally
enforceable right for seeking a direction to
the Director General Of Police for initiation
of legal proceedings against other officers
of Police Department and also because the
petitioner has not approached the authority
with the aforesaid demand, the instant writ
petition in respect of the aforesaid relief
cannot be entertained.

18. In view of the aforesaid
discussion, the Writ Petition is dismissed.
----------
(2023) 10 ILRA 693
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Crl. Misc. Writ Petition No. 11789 of 2023

Tuphail Ahmad & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vineep Pandey, Sri Pranvesh, Sri Agnivesh

Counsel for the Respondents:
G.A., Sri Sumit Goyal

A. Criminal Law-Constitution of India,
1950-Article 226- Indian Penal Code,
1860-Sections 420, 467, 468 & 471Impugned FIR lodged in respect of sale
deed-two sale deeds were subsequently
executed in respect of the same plotpower of attorney holder had executed at
least 10 sale deeds on behalf of petitionerthe fact concealed in the suit that the
same plot had been sold by the petitioner
no 2 and 3 to the petitioner no. 4 who is
daughter-in-law of the petitioner no. 1 by
registered sale deed wherein his son is
one of the witness- Therefore, the suit
filed after 31 years concealing all the
material facts is nothing but an attempt
to cover up the criminality of the act
committed by the petitioner no. 1 in
collusion with other co-accused personsHence, a civil dispute is pending and no
criminality is attached in the act, is not
sustainable in the eye of law.(Para 1 to
13)

B. It is true that a given set of facts may
make out a civil wrong as also a criminal
offence and only because a civil remedy
is available to the complainant that
itself cannot be a ground to quash a
criminal proceeding. The real test is
whether the allegations in the complaint
disclose the criminal offence of cheating
or not. Criminal prosecution cannot be
thwarted
merely
because
civil
proceedings are also maintainable.(Para
11,12)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Trisuns Chemical Indsy Vs Rajesh Agarwal &
ors. (1999) 8 SCC 686

2. Paramjeet Batra Vs St. of U.K. & ors. (2013)
11 SCC 673