# (U/s 482 Cr.P.C.) Dr. Malay Sharma v. State of U.P. & Anr

- **Citation:** (2014) 3 ILRA 1300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-24
- **Case number:** Criminal Misc. Application No. 40543 of 2014
- **Bench:** Mrs. Ranjana Pandya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-482-cr-p-c-dr-malay-sharma-v-state-of-u-p-anr-43125
- **Pages:** 3

## Headnote

Cr.P.C. Section 482-Quashing of complaint
case-offence u/s 506 I.P.C. no independent
witness-applicant also working in same
hospital-present prosecution-on malafide
ground-held-prima facie offence made outconsidering amendment by notification
21.08.89-offence under section 506 IPC
punishable
with
7
years
rigorous
imprisonment-is cognizable offence under
definition of 2-D of Cr.P.C.-no relief can be
granted-application rejected.
Held: Para-7
Perusal of the record shows that vide
State
amendment
notification
No.
777/VIII 9-4(2)-87, dated 31st July,
1989, published in U.P. Gazette, Extra,
Part A, Section (Kha), dated 2nd August,

## Text

1300
 INDIAN LAW REPORTS ALLAHABAD SERIES
operation of the rule is not suspended during
the minority of a member of the family.
19. There is no doubt that
immediacy of financial hardship is to be
considered and the claim of the applicant
is to be considered within the parameter
of Rule 5 of Rule Dying in Harness Rule
1974 as amended from time to time.
20. In the present as already held that
the petitioner has included in the family of
late Manoj Kumar as defined under Rule 2
(c) (iv) of the Dying in Harness Rule 1974,
as such the petitioner who is brother of the
deceased and is not in service is entitled for
appointment
on
compassionate
ground
provided he maintains other family members
of the deceased namely his younger brother
Amit Kumar, who is also living with him
and was also dependent of late Manoj
Kumar. Admittedly, deceased Manoj Kumar
was unmarried as such the question of
spouse being being in service does not arise.
It is also undisputed fact that the petitioner
Akhilesh Kumar is not in service of Central
Govt. or State Govt. or in any Corporation as
mentioned in Rule 5 of the Act.
21.
As laid down in Full Bench
decision in the case of Sheo Kumar Dubey
(supra) para 29 (ii) (iii) (iv) suffice to say that
once the father had left all the three brothers
namely
late
Manoj
Kumar,
petitioner
Akhilesh Kumar and younger brother Amit
Kumar, the purpose and scheme of Dying in
Harness Rule 1974 would be served by
providing financial assistance to the petitioner
by appointing him on compassionate ground
who had filed his application well within time
on 5.5.2011 whereas Manoj Kumar has
expired on 13.1.2010 after completion of 18
years of his age. There is no evidence on
record that the petitioner had any source of
income to maintain himself and his younger
brother Amit Kumar, who is now his
dependent. Therefore, applying the golden
Rule of interpretation which says that every
statute has to be construed in the context of a
scheme as a whole and is to be given the
meaning of the legislative intention according
to the terms it has been expressed. Therefore,
in view of the above discussion the impugned
order dated 27.4.2013 is not sustainable and is
liable to be quashed.
22.
Consequently, the order dated
27.4.2013
passed
by
Superintendent
Engineer, U.P. Jal Nigam, Allahabad is
hereby quashed. The respondent authorities
are, accordingly, directed to consider the
claim of the petitioner for appointment of on
compassionate
ground
in
Jal
Nigam
department
and
accordance
with
the
educational qualifications and pass suitable
order afresh, in the light of the above noted
discussion, within a period of three months
from the date of the production of the
certified copy of this order.
23. The writ petition is, accordingly,
allowed with the aforesaid observations.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2014
BEFORE
THE HON'BLE MRS. RANJANA PANDYA, J.
Criminal Misc. Application No. 40543 of 2014
(U/s 482 Cr.P.C.)
Dr. Malay Sharma
...Applicant
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Sri Aditya Prasad
Counsel for the Respondents:
A.G.A., Sri Swetashwa Agarwal
3 All]. Dr. Malay Sharma Vs. State of U.P. & Anr.
1301
Cr.P.C. Section 482-Quashing of complaint
case-offence u/s 506 I.P.C. no independent
witness-applicant also working in same
hospital-present prosecution-on malafide
ground-held-prima facie offence made outconsidering amendment by notification
21.08.89-offence under section 506 IPC
punishable
with
7
years
rigorous
imprisonment-is cognizable offence under
definition of 2-D of Cr.P.C.-no relief can be
granted-application rejected.
Held: Para-7
Perusal of the record shows that vide
State
amendment
notification
No.
777/VIII 9-4(2)-87, dated 31st July,
1989, published in U.P. Gazette, Extra,
Part A, Section (Kha), dated 2nd August,
1989. It has been specified that any
offence punishable under Section 506
I.P.C. if committed in the State of Uttar
Pradesh shall be cognizable and if threat
be to cause death or grievous hurt,
punishment should be for seven years or
fine or both. Thus, since section 506
I.P.C
is
a
cognizable
offence,
the
definition of Section 2D Cr.P.C. defining a
complaint shall not be applicable in this
case. As far as the fact that only the
witnesses of hospital have been sighted
in the first information report, this
matter
and
all
the
other
disputed
defences of the accused cannot be
looked into at this stage by this court in
the jurisdiction under Section 482 Cr.P.C.
(Delivered by Hon'ble Mrs. Ranjana
Pandya, J.)
1. Heard learned counsel for the
applicant,
Sri
Swetashwa
Agrawal,
Advocate who has put his appearance on
behalf of the opposite party no. 2 and
learned A.G.A. for the State.
2. Counsel for the applicant has
argued that the applicant was also
working in the Jaswant Rai Hospital,
Meerut at the time of occurrence. All the
witnesses cited in the first information
report are those who were working in
Jaswant Rai Hospital, Meerut. The case
has no merit and the application is liable
to be allowed.
3. The contention of the counsel for
the applicant is that no offence against the
applicant is disclosed and the present
prosecution has been instituted with mala
fide intention for the purposes of
harassment.
4. From the perusal of the material
on record and looking into the nature of
the case at this stage it cannot be said that
no offence is made out against the
applicant.
5. All the submissions made at the
bar relates to a disputed questions of fact
which cannot be adjudicated upon by this
court under Section 482 Cr.P.C. At this
stage only prima facie case is to be seen
in the light of law laid down by the
Supreme Court in cases of R.P. Kapur Vs.
State of Punjab, AIR 1960 SC 866, State
of Haryana Vs. Bhajan Lal, 1992 SCC
(Cr.) 426, Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Saraful Haq and another
(Para-10) 2005 SCC (Cr.) 283.
6. He has further relied on a
judgment passed in application under
Section 482 No. 27543 of 2011, in which
this court disposed of the application. The
order passed in Application No. 27543 of
2011 cannot be looked into, neither it can
be considered because that court did not
look into the amendment as incorporated
by the State of U.P. and thus, that order
cannot be relied on.
7. Perusal of the record shows that
vide State amendment notification No.
777/VIII 9-4(2)-87, dated 31st July, 1989,
1302
 INDIAN LAW REPORTS ALLAHABAD SERIES
published in U.P. Gazette, Extra, Part A,
Section (Kha), dated 2nd August, 1989. It
has been specified that any offence
punishable under Section 506 I.P.C. if
committed in the State of Uttar Pradesh
shall be cognizable and if threat be to cause
death or grievous hurt, punishment should
be for seven years or fine or both. Thus,
since section 506 I.P.C is a cognizable
offence, the definition of Section 2D
Cr.P.C. defining a complaint shall not be
applicable in this case. As far as the fact that
only the witnesses of hospital have been
sighted in the first information report, this
matter and all the other disputed defences of
the accused cannot be looked into at this
stage by this court in the jurisdiction under
Section 482 Cr.P.C.
8. The application is devoid of
merits and is liable to be dismissed.
9. Accordingly the application is
dismissed.
--------