# Sri Kant Mishra v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2020) 12 ILRA 165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-18
- **Case number:** Application U/S 482/378/407 No. 4495 of 2018
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-kant-mishra-v-state-of-u-p-anr-opp-parties-45452
- **Pages:** 4

## Headnote

Criminal Law - Code of Criminal Procedure,
1973- Section 311, Section 482 Cr.Pc-
Rejection of application u/s 311 Cr.Pc-
Revision- Maintainability of- Order under
Section 311 Cr.P.C. is an interlocutory order
and therefore against the rejection of an
application under Section 311 Cr.P.C., a
revision was not maintainable and therefore
learned Additional District and Sessions
Judge, Pratapgarh has wrongly assumed
jurisdiction and exercised the revisional
powers under Section 397 Cr.P.C.

An order passed u/s 311 of the Cr.Pc, is an
interlocutory order and a criminal revision
against the said order is not maintainable.

Criminal Application allowed. (Para 14) (E3)
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Case law/ Judgements relied upon:-

## Text

12 All. Shri Kant Mishra Vs. State of U.P. & Anr.
165

8. On perusal of the charge-sheet, it is
reflected that there is sufficient material to
establish the payment in pursuance to an
agreement to handover the plot on deposit
of certain money. The investigating officer
upon examination of the totality of the case
found that the petitioners have committed
breach of trust and after taking money from
the complainant, have not provided plot as
assured by them.

9. Section 405 of the Indian Penal
Code provides as under :-

"405. Whoever, being in any manner
entrusted with property, or with any dominion
over property, dishonestly misappropriates or
converts to his own use that property, or
dishonestly uses or disposes of that property in
violation of any direction of law prescribing the
mode in which such trust is to be discharged, or
of any legal contract, express or implied, which
he has made touching the discharge of such
trust, or wilfully suffers any other person so to
do, commits 'criminal breach trust'."

9. Looking to the facts and
circumstances of the case, it is apparent
that harassment has been made to the
complainant by committing "breach of
trust" and in such circumstances the
complainant has lodged the FIR. The
petitioners belong to Ansal Group, which is
a renowned real estate firm and as per news
reportings, it is highlighted that Ansal
Group has played fraud on the mass with
public and there are so many FIRs lodged
against it. If, such a reputed firm is
permitted to be involved in harassment of
common people, it will ruin the entire
society and will demotivate the peoples,
who are willing to purchase plots and flats.

10. I have also perused the terms of
compromise which establishes that the
petitioners themselves have admitted the
crime by making compromise with the
complainant to return the alternative plot,
therefore, this court is of the view that there
is no illegality in the order impugned and in
submission of charge sheet.

11. The petition lacks merit and is
hereby rejected.
----------
(2020)12ILR A165
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.11.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

Application U/S 482/378/407 No. 4495 of 2018

Sri Kant Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
R.N. Shukla, R.M. Tripathi

Counsel for the Opp. Parties:
Govt. Advocate

Criminal Law - Code of Criminal Procedure,
1973- Section 311, Section 482 Cr.Pc-
Rejection of application u/s 311 Cr.Pc-
Revision- Maintainability of- Order under
Section 311 Cr.P.C. is an interlocutory order
and therefore against the rejection of an
application under Section 311 Cr.P.C., a
revision was not maintainable and therefore
learned Additional District and Sessions
Judge, Pratapgarh has wrongly assumed
jurisdiction and exercised the revisional
powers under Section 397 Cr.P.C.

An order passed u/s 311 of the Cr.Pc, is an
interlocutory order and a criminal revision
against the said order is not maintainable.

Criminal Application allowed. (Para 14) (E3)
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Case law/ Judgements relied upon:-

1. Sethuraman Vs Rajamanickam, (2009) 2 SCC
(Cr) 627

2. Mohit @ Sonus & anr Vs St. of U.P. & anr.,
(2013) 3 SCC (Cri.) 727

3. Girish Kumar Suneja Vs C.B.I., (2011) 14 SCC
809

(Delivered by Hon'ble Alok Mathur, J.)

1. Notices were issued to respondent
No. 2 by the earlier order of this Court
dated 25.07.2018.

2. Office has reported by its report
dated 27.09.2018 that notices have been
served personally.

3. The service on respondent No. 2 is
sufficient.

4. Heard Sri R.M. Tripathi, learned
counsel for applicant as well as learned
A.G.A. for the State.

5. No one appears on behalf of
respondent No. 2.

6. By means of the present application
under Section 482 Cr.P.C., the applicant has
assailed the order passed by the Additional
District and Sessions Judge, Pratapgarh
dated 11.06.2018 in Criminal Revision No.
103/2017 (District Government Counsel
(Criminal), Pratapgarh Vs. Sri Kant) and
Criminal Revision No. 104/2017 (Uma
Shankar Vs. State of U.P. and Sri Kant
Mishra) allowing the said revisions filed by
the State and Uma Shankar respectively
against the order dated 06.04.2017 passed
by Additional Chief Judicial Magistrate,
Court No. 13, Pratapgarh. By means of the
said impugned order, the trial court rejected
the application under Section 311 of the
Cr.P.C. It has been submitted by the
counsel for the applicant that a complaint
was lodged by Sri Sukhra on 10.03.1993
under Section 467, 468, 409, 420, 421
I.P.C., P.S. Lalganj, District - Pratapgarh.

7. It has further been submitted that
after investigation the chargesheet was
submitted and during trial five witnesses
were
examined
by
the
prosecution.
Towards the end of the trial one Mr. Uma
Shanker appeared before the trial court on
06.10.2015 and moved an application with
a request to file certain documents. On the
said
application,
comments
of
the
State/Prosecution Officer were sought for.
Incidentally, the State also filed an
application under Section 311 Cr.P.C.
requesting the Court to summon the said
Uma Shanker as witness with the object of
placing the receipt No. 33/39281 as
evidence before the Court. The applicant
filed
his
objection
against
the
said
application under Section 311 Cr.P.C. The
learned trial court by means of the
judgment and order dated 06.04.2017 has
rejected the application moved by Uma
Shanker. Aggrieved by the order of trial
court dated 06.04.2017, Uma Shanker as
well as State filed Criminal Revisions
which have been allowed by means of
impugned order dated 11.06.2018

8. One of the main contention raised
by the counsel for applicant is that the said
revision is not maintainable inasmuch as
under Section 397 of the Cr.P.C. a revision
is not maintainable against an interlocutory
order, and the order of the trial court passed
in exercise of power vested under Section
311 of the Cr.P.C. rejecting the application
for summoning of any witness or any
witness not included in the chargesheet was
the interlocutory order and therefore the
12 All. Shri Kant Mishra Vs. State of U.P. & Anr.
167
Additional District and Sessions Judge,
Pratapgarh has wrongly exercised the
powers not vested in him under Section 397
of the Cr.P.C.

9. In support of his contention,
learned counsel has relied upon the
judgment of the Hon'ble the Supreme Court
in
the
case
of
Sethuraman
Vs.
Rajamanickam, 2009 (2) SCC (Cr) 627,
in paragraph No. 5 of the said judgment,
Hon'ble
the
Supreme
Court
has
categorically held that the orders passed by
the trial court refusing to to call the
documents and rejecting the application
under
Section
311
Cr.P.C.,
were
interlocutory orders and as such, the
revision against those orders was clearly
barred under Section 397 (2) Cr.P.C.,
paragraph No. 4 is quoted as under:-

"Secondly, what was not realized
was that the order passed by the Trial
Court refusing to call the documents and
rejecting the application under Section 311
Cr.P.C were interlocutory orders and as
such, the revision against those orders was
clearly barred under Section 397 (2)
Cr.P.C. The Trial Court, in its common
order, had clearly mentioned that the
cheque was admittedly signed by the
respondent/accused and the only defence
that was raised, was that his signed
cheques
were
lost
and
that
the
appellant/complainant had falsely used one
such cheque. The Trial Court also recorded
a finding that the documents were not
necessary. This order did not, in any
manner, decide anything finally. Therefore,
both the orders, i.e., one on the application
under Section 91 Cr.P.C. for production of
documents and other on the application
under Section 311 Cr.P.C. for recalling the
witness, were the orders of interlocutory
nature, in which case, under Section 397
(2), revision was clearly not maintainable.
Under such circumstances, the learned
Judge could not have interfered in his
revisional
jurisdiction.
The
impugned
judgment is clearly incorrect in law and
would have to be set aside."

10. It has been submitted by learned
counsel for applicant that despite the fact
that such objection was never raised before
the revisional court still this Court in
exercise of power under Section 482
Cr.P.C. will have the jurisdiction to set
aside the proceedings as the same are
arbitrary and without jurisdiction.

11. It is clear from the report as well
as the arguments raised by learned counsel
for applicant that the trial court had rejected
the application under Section 311 Cr.P.C.
by a detailed order dated 06.04.2017.
Aggrieved by the said order, the said Uma
Shanker as well as State filed a revision
which was allowed on merits. The trial
court only considered the necessity and
relevance of the receipt sought to be placed
before the trial court in evidence without
looking into the fact as to whether the
revision itself was maintainable or not.

12. Hon'ble the Supreme Court in the
case of Mohit alias Sonus & another Vs.
State of U.P. and Another, 2013 (3) SCC
(Cri.) 727 held that sub-section (2) of
Section 397 puts a restriction on exercise of
such power in relation to an interlocutory
order passed by the Criminal courts in any
appeal, inquiry, trial or other proceeding.

13. Hon'ble the supreme Court in the
case of Girish Kumar Suneja Vs. C.B.I.,
2011 (14 SCC 809 describing different
nature of orders and while dealing with the
scope of Section 397 (2) of Code of
Criminal Procedure held as follows:-
168 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. There are three categories of
orders that a court can pass-final, intermediate
and interlocutory. There is no doubt that in
respect of a final order, a court can exercise its
revision jurisdiction-that in respect of a final
order of acquittal or conviction. There is equally
no doubt that in respect of an interlocutory order,
the court cannot exercise its revision jurisdiction.
As far as an intermediate order is concerned, the
court can exercise tis revision jurisdiction since it
is not a interlocutory order.

18. The concept of an intermediate order
first found mention in Amar Nath Vs. State of
Haryana (1977) 4 SCC 137 in which case the
interpretation and impact of Section 397 (2) of the
Cr.P.C. came up for consideration. This decision is
important for two reasons. Firstly, it gives the
historical reason for the enactment of Section 397(20
of Cr.P.C. and secondly considering that historical
background, it gives a justification for a restrictive
meaning to Section 482 of the Cr.P.C.

21. The concept of an intermediate
order was further elucidated in Madhu Limaye
Vs. State of Maharashtra, (1977) 4 SCC 551 by
4
of
5(5)
CRM-M-29578-2019
(O&M)
contradistinguishing a final order and an
interlocutory order. This decision lays down the
principle that an intermediate order is one which
is interlocutory in nature but when reserved, ti
has the effect of terminating the proceedings and
thereby resulting in a final order. Two such
intermediate orders immediately come to mind -
an order taking congnizance of an offence and
summoning an accused and an order for framing
charges.
Prima
facie
these
orders
are
interlocutory in natu4re, but when an order
taking congnizance and summoning an accused
is reversed, it has the effect of terminating the
proceedings against that person resulting in a
final order in his or her favour. similarly, an
order for framing of charges if reversed has the
effect of discharging the accused person and
resulting in a final order in his or her favour.
therefore, an intermediate order is one which if
passed in a certain way, the prceedings would
terminate but if passed in another way, the
proceedings would continue. "

14. In light of the fact that order under
Section 311 Cr.P.C. is an interlocutory order and
therefore against the rejection of an application
under Section 311 Cr.P.C., a revision was not
maintainable and therefore learned Additional
District and Sessions Judge, Pratapgarh has
wrongly assumed jurisdiction and exercised the
revisional powers under Section 397 Cr.P.C.
Under
such
circumstances,
the
learned
Additional District and Sessions Judge,
Pratapgarh should not have interfere with the
order passed by trial court. The impugned order
dated 11.06.2018 is clearly erroneous and is
accordingly is set aside.

15. The application is allowed.

16. The trial court is expected to
conclude the trial expeditiously without
giving any unnecessary adjournments.
----------
(2020)12ILR A168
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2020

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Application U/S 482 No. 8463 of 2020

Amarjeet @ Kaluwa ...Applicant(In Jail)
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Kamal Krishna, Sri Mohd. Afzal

Counsel for the Opp. Parties:
A.G.A., Sri Pradeep Singh Sengar

Criminal Law -Code of Criminal Procedure,
1973- Section 311- In order to enable the