# State of U.P v. Anil Kumar & Anr

- **Citation:** (2021) 11 ILRA 1285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-30
- **Case number:** Government Appeal No. 2599 of 1987
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-anil-kumar-anr-46543
- **Pages:** 8

## Headnote

Criminal Procedure Code, 1908 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - while exercising appellate powers, even
if
two
reasonable
views/conclusions
are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and
proper. (11, 16)

F.I.R. under section 376 IPC against accused -
Prosecutrix was medically examined - Doctor stated
in her statement before court that at the time of
internal examination of prosecutrix, she did not find
any mark of injury on her private-parts - Hymen was
old torn and healed - there was no bleeding at all -
Vaginal-smear was taken, no spermatozoa was found
- medical evidence does not support the version of
prosecutrix at all - Held - evidence of prosecutrix
(PW1) does not inspire confidence, mainly in the light
of medical evidence - trial court rightly appreciated
the evidence on record (Para 22)

Dismissed. (E-5)

List of cases cited:

## Text

11 All. State of U.P. Vs. Anil Kumar & Anr.
1285
has been examined in defence. He has stated
that his wife prosecutrix disappeared from the
house on 30.7.92 and did not turn back and
came back the next day. When he made an
inquiry she had told that some outsiders had
dragged her but has not revealed the complicity
of the accused persons. He has further stated
that his wife is a lady of dubious character and
she had been made a tool of certain influential
persons of the village for falsely implicating the
accused persons. He has further stated that she
had illicit relations with one Mangal Singh of
Village Pathri and, therefore, she has been
acting at their behest. Though I do not find the
defence story as gospel truth but in such
confusing circumstances as unfolded against the
accused persons might have been falsely
implicated due to local rivalry.

25. It is evident from the record that there
was oral rivalry and enmity and the prosecution
story was not plausible story even as per the
medical evidence, though there were multiple
injuries found on her body, they were simple in
nature. There was no injury on her private parts
and therefore also we cannot differ with the
view taken by the learned Judge.

26. Hence, in view of the matter & on the
contours of the judgments of the Apex Court, we
have no other option but to concur with the
learned Sessions Judge.

27. The appeal lacks merit and is
dismissed, accordingly.

28. The record and proceedings be sent
back to the court-below.
----------
(2021)12ILR A1285
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Government Appeal No. 2599 of 1987

State of U.P. ...Appellant
Versus
Anil Kumar & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri Arvind Kumar

Criminal Procedure Code, 1908 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - while exercising appellate powers, even
if
two
reasonable
views/conclusions
are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and
proper. (11, 16)

F.I.R. under section 376 IPC against accused -
Prosecutrix was medically examined - Doctor stated
in her statement before court that at the time of
internal examination of prosecutrix, she did not find
any mark of injury on her private-parts - Hymen was
old torn and healed - there was no bleeding at all -
Vaginal-smear was taken, no spermatozoa was found
- medical evidence does not support the version of
prosecutrix at all - Held - evidence of prosecutrix
(PW1) does not inspire confidence, mainly in the light
of medical evidence - trial court rightly appreciated
the evidence on record (Para 22)

Dismissed. (E-5)

List of cases cited:

1. M.S. Narayana Menon @ Mani Vs St. of Kerala &
anr., (2006) 6 S.C.C. 39

2. Chandrappa Vs St. of Kar., reported in (2007) 4
S.C.C. 415
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
3. St. of Goa Vs Sanjay Thakran & anr., reported in
(2007) 3 S.C.C. 75

4. St. of U.P. Vs Ram Veer Singh & ors., 2007 A.I.R.
S.C.W. 5553

5. Girja Prasad (Dead) by L.R.s Vs St. of M.P., 2007
A.I.R. S.C.W. 5589

6. Luna Ram Vs Bhupat Singh & ors. (2009) SCC 749

7. Mookkiah & anr. Vs State Representatives by the
Inspector of Police, Tamil Nadu AIR 2013 SC 321

8. St. of Karn. Vs Hemareddy, AIR 1981, SC 1417

9. Shivasharanappa & ors. Vs St. of Karn., JT 2013
(7) SC 66

10. St. of Pun. Vs Madan Mohan Lal Verma, (2013) 14
SCC 153

11. Jayaswamy Vs St. of Karn., (2018) 7 SCC 219

12. Shailendra Rajdev Pasvan Vs St. of Guj. (2020) 14
SC 750

13. Samsul Haque Vs St. of Assam, (2019) 18 SCC 161

(Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. This appeal, under Section 378 (3) Cr.P.C.
at the behest of the State, has been preferred
against the judgment and order dated 13.7.1987,
passed by the learned Additional Sessions JudgeVIII, Agra, in Session Trial No.193 of 1986 (State
vs. Anil Kumar and another) arising out of Case
Crime No.96 of 1985 under Sections 366, 376,
376/114 and 201 IPC, Police Station-Jagdishpura,
District-Agra,
whereby
learned
trial
Judge
acquitted both the accused persons of all the
charges.

2. Brief facts of this case are that a writtenreport dated 26.5.1985 was submitted by
complainant, namely, Raj Narayan Sharma (father
of the prosecutrix) stating that on 25.5.1985 at
about 6:00-6:30 pm, his daughter, namely, the
prosecutrix aged about 14 years, was coming to
home after fetching a bucket of water from the
well. At that time, Smt.Raj Kumari w/o Om
Prakash Sharma was standing on balcony of her
house. She called his daughter to her house. His
daughter went to the house of Raj Kumari after
giving bucket to him. After some time, his
daughter came back crying. Her clothes were
having blood. On hearing the hue and cry, Munna
Lal, Bhagwati Prasad, Deena Nath, etc. gathered
there. In front of all, his daughter told the entire
story that Anil Kumar was already in the house of
Raj Kumari and he forcibly caught her and tried to
commit rape. She called Raj Kumari to save her,
but Raj Kumari pushed her inside the room. Then
Anil
Kumar
committed
rape
with
her.
Subsequently, Anil and Raj Kumari cleaned the
blood from the floor of the room and Raj Kumari
gave safe escape to Anil Kumar from backdoor of
her house.

3. On the basis of above written-report, a
first information report was lodged as Case
Crime No.96 of 1985. Investigation was taken
up by SI Bacchu Lal Verma. Investigating
Officer visited the spot, prepared site-plan and
statements of witnesses under Section 161
Cr.P.C. were also recorded. During the course of
investigation, medical examination of the victim
was conducted and medical report as well as
supplementary report were prepared. After
completing the investigation, charge-sheet was
submitted against the accused persons, namely,
Anil Kumar and Raj Kumari. The case being
triable exclusively by court of session was
committed to the court of session for trial by
competent Magistrate. The learned trial court
framed charges against accused Anil Kumar
under Sections 376 and 201 IPC and against Raj
Kumari under Section 376/114 and 201 of IPC.
Accused persons denied charges and claimed to
be tried.
11 All. State of U.P. Vs. Anil Kumar & Anr.
1287

4. To bring home the charges, the
prosecution produced the following witnesses,
namely:-

1.
Prosecutrix
PW1
2.
Raj Narayan Sharma
PW2
3.
Dr. Sudha Rani Agrawal PW3
4.
Constable Parushuram
PW4
5.
S.I. Bacchoo Lal Verma
PW5

5. In support of the ocular version of the
witnesses, following documentary evidence was
produced and contents were proved by leading
the evidence :-

1.
Written Report
Ex.ka1
2.
FIR
Ex.ka4
3.
Medico
Legal
Examination
Ex.ka2
4.
Supplementary Report
Ex.ka3
5.
Report of FSL
Ex.ka13
6.
Copy of G.D.
Ex.ka9
7.
Site-plan
Ex.ka10

6. After completion of prosecution
evidence, statements of accused persons were
recorded under Section 313 Cr.P.C., in which
they denied the evidence and said that false
evidence has been led against them. No evidence
was examined in defence.

7. We have heard Shri Ashwini Prakash
Tripathi, learned AGA for the State of UP as
well as Shri Arvind Kumar, learned counsel for
the accused respondents and perused the record.

8. Before we embark on testimony and the
judgment of the Court below, the contours for
interfering in Criminal Appeals where accused
has been held to be non guilty would require to
be discussed.

9. The principles, which would govern and
regulate the hearing of an appeal by this Court
against an order of acquittal, passed by the trial
Court, have been very succinctly explained by
the Apex Court in catena of decisions. In the
case of M.S. Narayana Menon @ Mani vs.
State of Kerala and another, (2006) 6 S.C.C.
39, the Apex Court has narrated the powers of
the High Court in appeal against the order of
acquittal. In para 54 of the decision, the Apex
Court has observed as under:

"54. In any event the High Court
entertained an appeal treating to be an appeal
against acquittal, it was in fact exercising the
revisional jurisdiction. Even while exercising an
appellate power against a judgment of acquittal,
the High Court should have borne in mind the
well settled principles of law that where two
view are possible, the appellate Court should
not interfere with the finding of acquittal
recorded by the Court below."

10. Further, in the case of Chandrappa vs.
State of Karnataka, reported in (2007) 4 S.C.C.
415, the Apex Court laid down the following
principles;

"42. From the above decisions, in our
considered
view,
the
following
general
principles regarding powers of the appellate
Court while dealing with an appeal against an
order of acquittal emerge:

[1] An appellate Court has full power
to review, re-appreciate and reconsider the
evidence upon which the order of acquittal is
founded.

[2] The Code of Criminal Procedure,
1973 puts no limitation, restriction or condition
on exercise of such power and an appellate
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
Court on the evidence before it may reach its
own conclusion, both on questions of fact and of
law.

[3]
Various
expressions,
such
as,"substantial and compelling reasons", "good
and
sufficient
grounds",
"very
strong
circumstances",
"distorted
conclusions",
"glaring mistakes", etc. are not intended to
curtain extensive powers of an appellate Court
in
an
appeal
against
acquittal.
Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to interfere
with acquittal than to curtail the power of the
Court to review the evidence and to come to its
own conclusion.

[4] An appellate Court, however, must
bear in mind that in case of acquittal there is
double presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that every
person shall be presumed to be innocent unless
he is proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened
by the trial Court.

[5] If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court."

11. Thus, it is a settled principle that while
exercising appellate powers, even if two
reasonable views/conclusions are possible on the
basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court.

12. Even in the case of State of Goa vs.
Sanjay Thakran and another, reported in
(2007) 3 S.C.C. 75, the Apex Court has
reiterated the powers of the High Court in such
cases. In para 16 of the said decision, the Court
has observed as under:

"16. From the aforesaid decisions, it is
apparent that while exercising the powers in
appeal against the order of acquittal the Court of
appeal would not ordinarily interfere with the
order of acquittal unless the approach of the lower
Court is vitiated by some manifest illegality and
the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the
decision is to be characterized as perverse. Merely
because two views are possible, the Court of
appeal would not take the view which would upset
the judgment delivered by the Court below.
However, the appellate Court has a power to
review the evidence if it is of the view that the
conclusion arrived at by the Court below is
perverse and the Court has committed a manifest
error of law and ignored the material evidence on
record. A duty is cast upon the appellate Court, in
such circumstances, to re-appreciate the evidence
to arrive to a just decision on the basis of material
placed on record to find out whether any of the
accused is connected with the commission of the
crime he is charged with."

13. Similar principle has been laid down
by the Apex Court in cases of State of Uttar
Pradesh vs. Ram Veer Singh and others, 2007
A.I.R. S.C.W. 5553 and in Girja Prasad (Dead)
by L.R.s vs. State of MP, 2007 A.I.R. S.C.W.
5589. Thus, the powers, which this Court may
exercise against an order of acquittal, are well
settled.

14. In the case of Luna Ram vs. Bhupat
Singh and others, reported in (2009) SCC 749,
the Apex Court in para 10 and 11 has held as
under:

"10. The High Court has noted that the
prosecution version was not clearly believable.
11 All. State of U.P. Vs. Anil Kumar & Anr.
1289
Some of the so called eye witnesses stated that
the deceased died because his ankle was twisted
by an accused. Others said that he was
strangulated. It was the case of the prosecution
that the injured witnesses were thrown out of the
bus. The doctor who conducted the postmortem
and examined the witnesses had categorically
stated that it was not possible that somebody
would throw a person out of the bus when it was
in running condition.

11. Considering the parameters of
appeal against the judgment of acquittal, we are
not inclined to interfere in this appeal. The view
of the High Court cannot be termed to be
perverse and is a possible view on the evidence."

15. Even in a recent decision of the Apex
Court in the case of Mookkiah and another vs.
State Representatives by the Inspector of
Police, Tamil Nadu, reported in AIR 2013 SC
321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial
Court, on appreciation of oral and documentary
evidence led in by the prosecution and defence,
acquitted the accused in respect of the charges
leveled against them. On appeal by the State, the
High Court, by impugned order, reversed the
said decision and convicted the accused under
Section 302 read with Section 34 of IPC and
awarded RI for life. Since counsel for the
appellants very much emphasized that the High
Court has exceeded its jurisdiction in upsetting
the order of acquittal into conviction, let us
analyze the scope and power of the High Court
in an appeal filed against the order of acquittal.
This Court in a series of decisions has
repeatedly laid down that as the first appellate
court the High Court, even while dealing with
an appeal against acquittal, was also entitled,
and obliged as well, to scan through and if need
be reappreciate the entire evidence, though
while hoosing to interfere only the court should
find an absolute assurance of the guilt on the
basis of the evidence on record and not merely
because the High Court could take one more
possible or a different view only. Except the
above, where the matter of the extent and depth
of consideration of the appeal is concerned, no
distinctions or differences in approach are
envisaged in dealing with an appeal as such
merely because one was against conviction or
the other against an acquittal. [Vide State of
Rajasthan vs. Sohan Lal and Others, (2004) 5
SCC 573]"

16. It is also a settled legal position that in
acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give fresh
reasonings, when the reasons assigned by the
Court below are found to be just and proper.
Such principle is laid down by the Apex Court in
the case of State of Karnataka vs. Hemareddy,
AIR 1981, SC 1417, wherein it is held as under:

" ... This Court has observed in Girija
Nandini Devi V. Bigendra Nandini Choudhary
(1967) 1 SCR 93:(AIR 1967 SC 1124) that it is
not the duty of the Appellate Court on the
evidence to repeat the narration of the evidence
or to reiterate the reasons given by the trial
Court expression of general agreement with the
reasons given by the Court the decision of which
is under appeal, will ordinarily suffice."

17. In a recent decision, the Hon'ble Apex
Court in Shivasharanappa and others vs. State
of Karnataka, JT 2013 (7) SC 66 has held as
under:

"That appellate Court is empowered to
reappreciate the entire evidence, though, certain
other principles are also to be adhered to and it
has to be kept in mind that acquittal results into
double presumption of innocence."

18. Further, in the case of State of Punjab
vs. Madan Mohan Lal Verma, (2013) 14 SCC
153, the Apex Court has held as under:
1290 INDIAN LAW REPORTS ALLAHABAD SERIES

"The law on the issue is well settled
that demand of illegal gratification is sine qua
non for constituting an offence under the 1988
Act. Mere recovery of tainted money is not
sufficient to convict the accused when
substantive evidence in the case is not
reliable, unless there is evidence to prove
payment of bribe or to show that the money
was taken voluntarily as a bribe. Mere receipt
of the amount by the accused is not sufficient
to fasten guilt, in the absence of any evidence
with regard to demand and acceptance of the
amount as illegal gratification. Hence, the
burden rests on the accused to displace the
statutory presumption raised under Section 20
of the 1988 Act, by bringing on record
evidence, either direct or circumstantial, to
establish with reasonable probability, that the
money was accepted by him, other than as a
motive or reward as referred to in Section 7 of
the 1988 Act. While invoking the provisions of
Section 20 of the Act, the court is required to
consider the explanation offered by the
accused, if any, only on the touchstone of
preponderance of probability and not on the
touchstone of proof beyond all reasonable
doubt. However, before the accused is called
upon to explain how the amount in question
was found in his possession, the foundational
facts must be established by the prosecution.
The complainant is an interested and partisan
witness concerned with the success of the trap
and his evidence must be tested in the same
way as that of any other interested witness. In
a proper case, the court may look for
independent corroboration before convincing
the accused person."

19.

The
Apex
Court
recently
in
Jayaswamy vs. State of Karnataka, (2018) 7
SCC 219, has laid down the principles for laying
down the powers of appellate court in reappreciating the evidence in a case where the
State has preferred an appeal against acquittal,
which read as follows:

"10. It is by now well settled that the
Appellate Court hearing the appeal filed against
the judgment and order of acquittal will not
overrule or otherwise disturb the Trial Court's
acquittal if the Appellate Court does not find
substantial and compelling reasons for doing so.
If the Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of law; if
the Trial Court's judgment is likely to result in
grave miscarriage of justice; if the entire
approach of the Trial Court in dealing with the
evidence was patently illegal; if the Trial Court
judgment
was
manifestly
unjust
and
unreasonable; and if the Trial Court has
ignored the evidence or misread the material
evidence or has ignored material documents like
dying declaration/report of the ballistic expert
etc. the same may be construed as substantial
and compelling reasons and the first appellate
court may interfere in the order of acquittl.
However, if the view taken by the Trial Court
while acquitting the accused is one of the
possible
views
under
the
facts
and
circumstances of the case, the Appellate Court
generally will not interfere with the order of
acquittal particularly in the absence of the
aforementioned factors.

.................It is relevant to note the
observations of this Court in the case of
Ramanand Yadav vs. Prabhu Nath Jha & Ors.,
(2003) 12 SCC 606, which reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence upon
which an order of acquittal is based. Generally,
the order of acquittal shall not be interfered with
because the presumption of innocence of the
accused is further strengthened by acquittal. The
golden thread which runs through the web of
administration of justice in criminal cases is that
if two views are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
11 All. State of U.P. Vs. Anil Kumar & Anr.
1291
view which is favourable to the accused should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to re-appreciate
the evidence in a case where the accused has
been acquitted, for the purpose of ascertaining
as to whether any of the accused committed any
offence or not."

20. The Apex Court recently in Shailendra
Rajdev Pasvan v. State of Gujarat, (2020) 14
SC 750, has held that the appellate court is
reversing the trial court's order of acquittal, it
should give proper weight and consideration to
the presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed and
strengthened by the trial court and in Samsul
Haque v. State of Assam, (2019) 18 SCC 161
held that judgment of acquittal, where two views
are possible, should not be set aside, even if
view formed by appellate court may be a more
probable one, interference with acquittal can
only be justified when it is based on a perverse
view.

21.

Learned
AGA
submitted
that
prosecutrix and his father, both, have supported
the prosecution version in their respective
statements, but now the main accused Anil
Kumar has passed away. Hence, now respondent
accused-Raj Kumari is left, against which appeal
remains to be decided. Learned AGA submitted
that he was not submitting the factual and legal
arguments against main accused Anil Kumar,
since he is no more now. It is next submitted that
role of remaining respondent, namely, Raj
Kumari confines to the extent of abetment only
and there is ample evidence on record to show
that Raj Kumari called the prosecutrix to her
house where Anil Kumar was already present.
Raj Kumari also facilitated the commission of
crime, i.e., rape by Anil Kumar. It is also in
evidence that after the commission of rape, Raj
Kumari gave the safe passage to Anil Kumar
from backdoor of her house. Therefore, Raj
Kumari should have been held guilty for
abetment of commission of the crime, but the
court below did not appreciate the evidence in
this regard at all and acquitted respondent-Raj
Kumari also.

22. Perusal of record shows that FIR of this
case is delayed by a day. It is explained by
prosecution that keeping in view social
reputation, Raj Nath Sharma resisted the
complainant to lodge FIR on the date of
occurrence, but it is no where explained as to
under what circumstances, the FIR was lodged
on the very next day by the complainant. We
have
perused
the
oral
testimony.
PW1
prosecutrix narrated story in her statement as
mentioned in FIR, but she did not tell that story
to Investigating Officer in her statement under
Section 161 of Cr.P.C., which was recorded after
15-20 days of the occurrence. Prosecutrix has
clearly stated whatever is asked by defence
counsel in cross-examination was told to
investigation officer, but this is not mentioned in
her statement because accused-Anil etc. had
greased the palm of Investigating Officer, but in
our opinion, there is no iota of evidence in this
regard, rather it is clear that narration of story as
told in cross-examination by the prosecutrix was
not told to Investigating Officer. Analysis of the
evidence of prosecutrix (PW1) does not inspire
confidence, mainly in the light of medical
evidence. Prosecutrix was medically examined
by Dr.Sudha Rani Agrawal, who was produced
before the trial court as PW3. She has clearly
stated in her statement that at the time of internal
examination of prosecutrix, she did not find any
mark of injury on her private-parts. Hymen was
old torn and healed. It is also stated that there
was no bleeding at all. Vaginal-smear was taken
by doctor for chemical examination and
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
supplementary report on record shows that no
spermatozoa was found. In this way, the medical
evidence does not support the version of
prosecutrix at all.

23. In view of above, we are of the
considered opinion that learned trial court
rightly appreciated the evidence on record, the
evidence produced by the prosecution does not
inspire confidence as held by learned trial Judge.
We cannot take a different view from that of
taken by learned trial Judge. We also do not find
any infirmity in the impugned judgment and
order regarding the role of accused-Raj Kumari.

24. It is made clear that no argument is
submitted by learned AGA regarding the role of
respondent Anil Kumar, since he has passed
away during the pendency of this appeal.

25. Therefore, in view of above discussion,
facts and circumstances of the case, we have no
other option, but to concur with the findings
recorded by learned trial court. The appeal is
liable to be dismissed.

26. Hence, the appeal sans merit and is
dismissed.

27. We are thankful to Shri Ashwini
Prakash Tripathi, learned AGA for the State of
UP and Shri Arvind Kumar, learned counsel for
the accused respondents for ably assisting the
Court.
----------
(2021)12ILR A1292
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.12.2021

BEFORE

THE HON'BLE RAJAN ROY, J.

Civil Revision No. 45 of 2018

Waqf No. 34-A, Ashiq Abbas Khan ...Revisionist
Versus
U.P. Sunni Central Board of Waqfs, Lucknow &
Ors. ...Opposite Parties

Counsel for the Revisionist:
Yogesh Kesarwani, Dharmendra Kumar Bhatt,
Yogesh Kesarwani

Counsel for the Opposite Parties:
Mohd. Shakeel

Waqf Act, 1995 - Section 83(8) - Execution of
any decision of the Tribunal - execution of any
decision of the Tribunal shall be made by the
civil court to which such decision is sent for
execution in accordance with the provisions of
the Code of Civil Procedure, 1908 - Tribunal
does not itself have any power to execute any
decision taken by it and is required to send the
same for execution in accordance with the
provisions of the Code of Civil Procedure to the
civil court (Para 12)

Central Sunni Waqf Board entered into a contract
with the respondents no. 2 to 6 for sale of a
property which was part of the Waqf - Board did
not perform its part of the contract - Suit for
specific performance of contract was instituted,
which was decreed on 20.01.2001 - Execution Case
was filed before civil court for executing the
aforesaid decree - Civil Judge transferred the
records of the Execution Case to the U.P. Waqf
Tribunal
Lucknow
in
view
of
the
general
Administrative Order of the High Court whereby it
was directed that all matters pertaining to the
Waqf to be transferred to the Tribunal - Tribunal
returned back the records for execution by the civil
court in view of the provisions of S. 38 CPC & S. 83
of the Waqf Act, 1995 - Held - order passed by the
civil court transferring the records of the execution
case to the U.P. Waqf Tribunal merely on the basis
of the orders of the Registrar General & District
Judge on the Administrative side, which were
general orders, which was not specifically with
regard to execution of any decree, is without any
application of judicial mind, and unsustainable -
generally speaking no doubt - Tribunal was
justified in transferring the records of Execution
Case back to the civil court for execution which
does not suffer from any error (Para 17)

Dismissed. (E-5)