# Sri Ramesh @ Mehandi Hasan v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 980
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-16
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ramesh-mehandi-hasan-v-state-of-u-p-ors-50869
- **Pages:** 5

## Headnote

A. Constitution of India, 1950-Article 227Indian Penal Code, 1860-Sections 363,
376 & 376 (2)(cha)-Criminal Procedure
Code, 1973-Sections 357 & 357-A-accused
was
convicted-
victim
claimed
compensation-accused filed an appeal and
no fine was deposited-learned trial court
while considering the application was not
aware of the scheme i.e. Uttar Pradesh
Victim Compensation Scheme 2014 and
this fund is operated by Secretary, State
Legal Service Authority- the provisions of
section 357-A were not considered by the
court concerned in right perspective and
the application was dismissed on the basis
of report of Probation Officer only-In fact,
it falls within the jurisdiction of District
Legal Service Authority to decide whether
the claim falls within the parameter of the
scheme of 2014 or not.(Para 3 to 12)

B. Section 357 CrPC provides that when
a court imposes a sentence of fine while
judgment, whole or any part of the fine
recovered, may be applied for payment
of compensation for any loss or injury
caused to any person, however no such
payment shall be made before the period
allowed for presenting the appeal has
elapsed or if an appeal be presented,
before the decision of the appeal.(Para
5)

The petition is disposed of. (E-6)

## Text

980 INDIAN LAW REPORTS ALLAHABAD SERIES

[(3A) Where a person convicted
under sub-section (2) for failure to transfer
any property as required by sub-section (1)
[or sub-section (3)] has not, before his
conviction under that sub-section, transferred
such property to the woman entitled thereto
or, as the case may be, [her heirs, parents or
children] the Court shall, in addition to
awarding punishment under that sub-section,
direct, by order in writing, that such person
shall transfer the property to such woman or,
as the case may be, [her heirs, parents or
children] within such period as may be
specified in the order, and if such person fails
to comply with the direction within the period
so specified, an amount equal to the value of
the property may be recovered from him as if
it were a fine imposed by such Court and paid
to such woman or, as the case may be, [her
heirs, parents or children]."

(4) Nothing contained in this
section shall affect the provisions of section 3
or section 4."

6. From perusal of above provision it
appears that there is no specific averment in
the complaint with regard to section 6 of D.P.
Act, however, it is stated therein that accused
persons failed to return her stridhan given by
her parents on demand made by her which
comes within the purview of section 406 IPC
itself. If section 406 IPC or any other penal
section of any criminal statute are lacking in
FIR, the informant has every right to move an
application for addition of charge, during
course of trial in case it proceeds, but fresh
complaint on similar version already taken in
F.I.R. lodged at the instance of complainant
will amount to misuse of process of law.
Even learned court below has not considered
this point in true prospective and dismissed
the revision filed by the petitioners against
the summoning order. The points raised in
present petition were raised before the
revisional court but same was not duly
considered by the revisional court and
revision was dismissed in summary manner
after citing certain case laws. Article 227 of
the Constitution of India confers on High
Courts power of superintendence over all
courts, tribunals throughout jurisdiction of
concerned High Court.

7. In the light of foregoing discussions
and for the reason that complainant version in
present complaint as well as in her previous
F.I.R. are substantially same, filing of
complaint on similar allegations taken in
F.I.R. already lodged is not tenable and
summoning order issued by the court of first
instance pursuant to said complaint and
judgement of revisional court affirming said
summoning order in criminal revision
preferred by present petitioners are not
sustainable and orders of both court below
are liable to be set aside.

8. The impugned orders passed by the
courts below are set aside. However, it is
clarified that observations made herein above
will not affect the proceedings initiated
pursuant to F.I.R. lodged bearing Case Crime
no. 142 of 2017, P.S. Noorpur, District Bijnor
against the petitioners and co-accused at the
instance of the present complaint/ respondent
no. 2.

9. The instant petition stands allowed
with above observations.
----------
(2024) 1 ILRA 980
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 5804 of 2023 (Criminal)
1 All. Sri Ramesh @ Mehandi Hasan Vs. State of U.P. & Ors.
981
Sri Ramesh @ Mehandi Hasan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shrikant Srivastava, Archana Srivastava

Counsel for the Respondents:
G.A.

A. Constitution of India, 1950-Article 227Indian Penal Code, 1860-Sections 363,
376 & 376 (2)(cha)-Criminal Procedure
Code, 1973-Sections 357 & 357-A-accused
was
convicted-
victim
claimed
compensation-accused filed an appeal and
no fine was deposited-learned trial court
while considering the application was not
aware of the scheme i.e. Uttar Pradesh
Victim Compensation Scheme 2014 and
this fund is operated by Secretary, State
Legal Service Authority- the provisions of
section 357-A were not considered by the
court concerned in right perspective and
the application was dismissed on the basis
of report of Probation Officer only-In fact,
it falls within the jurisdiction of District
Legal Service Authority to decide whether
the claim falls within the parameter of the
scheme of 2014 or not.(Para 3 to 12)

B. Section 357 CrPC provides that when
a court imposes a sentence of fine while
judgment, whole or any part of the fine
recovered, may be applied for payment
of compensation for any loss or injury
caused to any person, however no such
payment shall be made before the period
allowed for presenting the appeal has
elapsed or if an appeal be presented,
before the decision of the appeal.(Para
5)

The petition is disposed of. (E-6)

(Delivered by Mrs. Jyotsna Sharma, J.)

1. Sri Srikant Srivastava, learned
counsel for the petitioner and Sri S.C.
Mishra, learned A.G.A. for the State are
present.

2. This petition has been filed
challenging the order dated 09.02.2023,
passed in a case arising out of Case Crime
No. 793 of 2010 under sections 363, 376
I.P.C. by which, the application moved by
the victim in the light of order passed in
Writ No. 41664 of 2018 for grant of
compensation, was dismissed.

3. The relevant facts of the case are as
below.

(i) In a criminal case tried by
Second Additional Sessions Judge, i.e. S.T.
No. 629 of 2010 under sections 363 and
376, the petitioner was a victim of rape.
The accused was put to trial and was
convicted
and
sentenced
to
life
imprisonment along with fine of Rs.
25,000/- for the offence of 376 (2) (cha).

(ii)
The
learned
Second
Additional Sessions Judge also ordered that
half of the fine shall be payable to the
victim as compensation.

(iii) It is submitted by the
petitioner that the convict is in judicial
custody and he has filed an appeal
challenging the above judgment and order.
The convict is lodged in jail and the appeal
is pending and that till now, no fine has
been deposited, therefore, no compensation
could be obtained by her.

(iv) The victim filed a Writ No.
41664 of 2018 with a prayer for grant of
compensation under section 357, 357-A
Cr.P.C. which was decided by the order
passed by the High Court 18.12.2018 as
below:

"Heard Sri Shailesh Kumar
Srivastava,
learned
counsel
for
the
petitioners and the learned Standing
982 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the State-respondent nos.1 to
3.

By means of this writ petition,
the petitioner no.1 through her mother,
the
petitioner
no.2
is
claiming
compensation being victim of rape. The
accused has been convicted.

Learned
Standing
Counsel
submits that corpus has been created in
pursuance to the provisions of Section 357
& 357 (A) of Cr.P.C. for that petitioners
have to approach the same court.

In case, such an application is
filed, the same be considered and decided,
in accordance with law.

With the aforesaid observation,
the writ petition stands disposed of."

(v) In pursuance of the aforesaid
order, the victim moved an application
dated 21.02.2019 before the trial court
concerned. The District Probation Officer,
Gautam Buddh Nagar, submitted a report
stating therein that the scheme "Uttar
Pradesh Rani Laxmi Bai Mahila Evam Bal
Samman Kosh" was promulgated in the
year 2015, whereas the incident of the
instant case occurred in 2010, therefore, it
shall not be possible to grant any
compensation to the victim under that
scheme.

(vi) The learned Sessions Judge,
on the basis of aforesaid report, dismissed
the application by passing an order on
09.02.2023. Now, this order is under
challenge in this petition.

4.

The
way,
the
matter
of
compensation has been handled by the
court concerned, gives an impression that
the court was unaware of the scheme and
the formalities required for grant of
compensation as provided in U.P. Victim
Compensation Scheme, 2014. Before I
proceed further, I find it appropriate to go
through the relevant provisions of law.

5. Section 357 Cr.P.C. provides that
when a court imposes a sentence of fine
while passing a final judgment, whole or
any part of the fine recovered, may be
applied for payment of compensation for
any loss or injury caused to any person,
however, no such payment shall be made
before the period allowed for presenting the
appeal has elapsed or if an appeal be
presented, before the decision of the
appeal.

6. Section 357-A, which has been
introduced in Cr.P.C. by Act V of 2009
w.e.f. 31.12.2009, empowers the State
Government, in coordination of the Central
Government, to prepare a scheme for
providing funds for the purpose of
compensation
to
the
victim
or
his
dependents who suffered loss or injury as a
result of a crime.

7. The provisions of Section 357-A
Cr.P.C. are as below:

"[357A. Victim compensation
scheme.-- (1) Every State Government in
co-ordination with the Central Government
shall prepare a scheme for providing funds
for the purpose of compensation to the
victim or his dependents who have suffered
loss or injury as a result of the crime and
who require rehabilitation.

(2) Whenever a recommendation
is made by the Court for compensation, the
District Legal Service Authority or the
State Legal Service Authority, as the case
1 All. Sri Ramesh @ Mehandi Hasan Vs. State of U.P. & Ors.
983
may be, shall decide the quantum of
compensation to be awarded under the
scheme referred to in sub-section (1).

(3) If the trial Court, at the
conclusion of the trial, is satisfied, that the
compensation awarded under section 357 is
not adequate for such rehabilitation, or
where the cases end in acquittal or discharge
and the victim has to be rehabilitated, it may
make recommendation for compensation.

(4) Where the offender is not traced
or identified, but the victim is identified, and
where no trial takes place, the victim or his
dependents may make an application to the
State or the District Legal Services Authority
for award of compensation.

(5)
On
receipt
of
such
recommendations or on the application under
sub-section (4), the State or the District Legal
Services Authority shall, after due enquiry
award adequate compensation by completing
the enquiry within two months.

(6) The State or the District Legal
Services Authority, as the case may be, to
alleviate the suffering of the victim, may
order for immediate first-aid facility or
medical benefits to be made available free of
cost on the certificate of the police officer not
below the rank of the officer in charge of the
police station or a Magistrate of the area
concerned, or any other interim relief as the
appropriate authority deems fit."

8. Under the powers as available
under section 357-A, the Uttar Pradesh
Victim Compensation Scheme 2014, has
come into force.

9. Schedule-1 annexed with the
scheme provides for the maximum limit of
compensation which can be paid to a rape
victim. A victim compensation fund, from
which the compensation can be defrayed
under the scheme, has already been
established. This fund is operated by
Secretary,
State
Legal
Services
Authority.

10. Para-5 of the scheme provides that
the
recommendation
for
grant
of
compensation can be made by the court.
This recommendation can be made on the
application moved by the victim or by the
court
suo
moto.
Whenever,
such
recommendation is received by District
Legal Services Authority, it shall examine
the case and verify the contents of the
claim and after observing other formalities,
as provided under the scheme and after due
inquiry, award compensation within two
months from the date of receipt of the
recommendation in accordance with the
provisions of the scheme. This may also be
noted that the 'eligibility' of the victim for
grant of compensation and quantum
thereof can only be decided by the
D.L.S.A. The court concerned can only
make a 'recommendation'. It falls within the
jurisdiction of D.L.S.A. to decide whether
the 'claim' falls within the parameter of the
scheme of 2014 or not. The role of the
court, in such circumstances is formal and
no more.

11. It appears that the learned trial
court while considering the application
given by the victim, was not aware of such
scheme. It also appears that the provisions
of section 357-A were not considered by
the court concerned in right perspective and
the application was dismissed on the basis
of report of Probation Officer only.

12. This fact has been brought to my
knowledge that an appeal filed against the
judgment and order passed by the trial
984 INDIAN LAW REPORTS ALLAHABAD SERIES
court is pending. Undisputably, the matter
for
grant
of
compensation
can
be
considered by the court whether it is trial
court
or
the
court
of
appeal
and
accordingly, the District Legal Services
Authority may be asked to verify the claim
and to proceed as per provisions of the
scheme.

13. In view of the above legal
position, this petition is finally disposed
of, with liberty to the petitioner to move
suitable application either before the
Court considering the matter of appeal or
before the concerned District Legal
Services Authority, within a month. In
case, the matter comes before the District
Legal Services Authority, it shall be
considered by the authority, as per law.
----------
(2024) 1 ILRA 984
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 8979 of 20223 (Criminal)

Rajkumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Tripathi, Sri Kunj Bihari
Pandey

Counsel for the Respondents:
G.A.

A.
Constitution
of
India,1950-Article
227-Indian Penal Code, 1860-Sections
147, 148, 149, 323, 324, 325, 504, 506 &
326-Criminal
Procedure
Code,
1973Section 216-challenge to-addition of
charge
-Petitioner
argued
that
no
material was there on the basis of which
addition of section was made by the
court-While
at
the
framing
of
the
charge, application moved through the
APO was heard and the medical reports
showed grievous injuries-Hence, this is
not the case where once charged had
been framed and an addition of some
section was made subsequently.(Para
16)

B. The power to add or alter a charge is
comprehensive enough for remedying
defects, whether they arise out of the
framing of a charge or non-framing of
charge and whether they are discovered
at the inception of the trial or at
subsequent stages till prior to the
pronouncement
of
the
judgment.
Court's power to alter or add any
charge is unrestrained provided such
addition or alteration is made before
the
judgment
pronounced.
An
erroneous and improper charge may be
corrected under section 216 Cr.PC by
re-framing it properly or by addition or
altering it for an offence provable by
the evidence. It is discretionary power
and of course the discretion should be
exercised
judicially
and
not
arbitrarily.(Para 6 to 9)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Vikul Vs St. of U.P. & anr. {Matters U/A 227
No. 2014 of 2023}

2. Anant Prakash Misra @ Anant Sinha Vs St. of
Har. & anr. (2016) 6 SCC 105

3. Dr Nallapareddy Sridhar Reddy Vs the St. of
A.P. & ors., CRLA No. 1934 of 2019

4. P. Kartikalakshmi Vs Sri Ganesh (2017) 3 SCC
347

5. CBI Vs Karimullah Osan Khan (2014) 11 SCC
538

(Delivered by Mrs. Jyotsna Sharma, J.)