# Vaibhav Jaiswal v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 10 ILRA 516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-10
- **Case number:** Application u/s 482 No. 25636 of 2023
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaibhav-jaiswal-v-state-of-u-p-ors-opp-parties-49471
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 200 - statements of
complainant, Section 202 - statements
witnesses, Indian Penal Code, 1860 -
Sections 323, 325, 504, 506, 452 - at the
stage of summoning the accused under
Section 204 Cr.P.C., Magistrate is not
required to go into the merit and demerit
of the case - Genuineness or otherwise of
the allegations cannot be even determined
at the stage of summoning the accused -
Only prima facie satisfaction of the
learned Magistrate about the existence of
sufficient ground to proceed in the matter
is required - honesty, fairness, purity of
mind should be of the highest order to
approach the court.(Para -10,14)

Misuse of Law Process in Criminal Revision Case
- Accused parties misused law by filing criminal
revision -
Suppressed material facts and documents
indicating their application under Section 482
Cr.P.C. was dismissed - Despite objections, the
revisional court did not mention the dismissal of
the High Court application. (Para -10,14)

HELD:- After dismissal of an application under
Section 482 Cr.P.C. against the summoning
order by the High Court, the criminal revision
under Section 397 and 399 Cr.P.C. against the
same summoning order before the Additional
Sessions Judge is not maintainable. Order
passed by District and Sessions Judge, not
sustainable in the eye of law. Impugned order
passed by Sessions Judge quashed. Summoning
order passed by Magistrate upheld. (Para -
14,15,16)

Application u/s 482 Cr.P.C. allowed. (E-7)

LIST OF CASES CITED:-

## Text

516 INDIAN LAW REPORTS ALLAHABAD SERIES
is worthy of rejection. Thus, on the ground
of jurisdiction, the argument of the Counsel
for the petitioner cannot be sustained as
there is no error or infirmity in the order
impugned dated 10.03.2023 passed by the
Commercial Court, Lucknow and the same
is upheld.

13. In view of above, the writ petition
is
dismissed
with
directions to
the
Commercial
Court-Ist,
Lucknow
to
expeditiously
conclude
the
execution
proceedings, in accordance with law.
----------
(2023) 10 ILRA 516
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.10.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application u/s 482 No. 25636 of 2023

Vaibhav Jaiswal ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Ram Raj Pandey, Sri Shubham Pandey

Counsel for the Opp. Parties:
G.A., Sri Bipin Kumar Tripathi, Sri Shubham, Sri
Ajay Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 200 - statements of
complainant, Section 202 - statements
witnesses, Indian Penal Code, 1860 -
Sections 323, 325, 504, 506, 452 - at the
stage of summoning the accused under
Section 204 Cr.P.C., Magistrate is not
required to go into the merit and demerit
of the case - Genuineness or otherwise of
the allegations cannot be even determined
at the stage of summoning the accused -
Only prima facie satisfaction of the
learned Magistrate about the existence of
sufficient ground to proceed in the matter
is required - honesty, fairness, purity of
mind should be of the highest order to
approach the court.(Para -10,14)

Misuse of Law Process in Criminal Revision Case
- Accused parties misused law by filing criminal
revision -
Suppressed material facts and documents
indicating their application under Section 482
Cr.P.C. was dismissed - Despite objections, the
revisional court did not mention the dismissal of
the High Court application. (Para -10,14)

HELD:- After dismissal of an application under
Section 482 Cr.P.C. against the summoning
order by the High Court, the criminal revision
under Section 397 and 399 Cr.P.C. against the
same summoning order before the Additional
Sessions Judge is not maintainable. Order
passed by District and Sessions Judge, not
sustainable in the eye of law. Impugned order
passed by Sessions Judge quashed. Summoning
order passed by Magistrate upheld. (Para -
14,15,16)

Application u/s 482 Cr.P.C. allowed. (E-7)

LIST OF CASES CITED:-

1. K.D Sharma Vs SAIL & ors., (2008) 12 SCC
481

2. Dalip Singh Vs St. of U.P. & ors., (2010) 2
SCC 114

3. K. Jayaram & ors. Vs B.D.A. & ors., (2022) 12
SCC 816

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard Mr. Ram Raj Pandey,
learned counsel for the applicant, Mr.
Deepak
Mishra,
learned
Additional
Government Advocate assisted by Mr.
Ajay
Singh,
learned
Brief
Holder
representing the State, Mr. Shubham,
learned counsel for accused (opposite party
nos.
2,
3
and
4).
10 All. Vaibhav Jaiswal Vs. State of U.P. & Ors.
517

2- This application under Section 482
Cr.P.C.
has
been
preferred
by
the
complainant-applicant with a prayer to
quash the impugned order dated 26.05.2023
passed by the Additional Sessions Judge,
Court No. 15, Bulandshahr in Criminal
Revision No. 49 of 2023 (Vichitra Gupta
and others Vs. State of U.P.) arising out of
summoning order dated 29.03.2022 in
Complaint Case No. 55 of 2022, under
Sections 323, 325, 504, 506, 452 IPC,
police
station
Kotwali
City,
district
Bulandshahr.

3- Brief facts of the case, which are
required to be stated are that in an incident
which
took
place
on
09.12.2021,
applicant/complainant-Vaibhav
Jaiswal
received injuries, in respect whereof the
applicant filed a criminal complaint dated
01.01.2022 in the Court of Chief
Judicial
Magistrate,
Bulandshahr
against opposite party nos. 2, 3 and 4.
The learned Magistrate, after recording
the statements of the complainant and
the witnesses under Section 200 and
202 Cr.P.C respectively, summoned
opposite party nos. 2, 3 and 4 under
Section 204 Cr.P.C. to face trial for the
offence under Sections 323, 325, 504,
506, 451 I.P.C. vide order dated
29.03.2022. The said summoning order
dated 29.03.2022 was challenged by the
accused-opposite party nos. 2, 3 and 4
before the High Court by filing an
application under Section 482 Cr.P.C.
No. 10374 of 2022. The High Court
vide order dated 15.09.2022, while
declining
to
interfere
with
the
summoning
order
dated
29.3.2022,
directed
the
applicants
therein
to
surrender before the Trial Court and to
file bail application, which was directed
to be decided by the Trial Court in
terms of the judgment of the Supreme
Court in Satender Kumar Antil Vs. CBI
and another, (2021) 10 SCC 773.

4- Instead of complying with the
order of this Court dated 15.09.2022,
the applicants therein (opposite party
nos. 2, 3 and 4 ) by concealing the order
dated 15.09.2022 passed by the High
Court filed criminal revision under
Section 397, 399 Cr.P.C. on 03.10.2022
before the Additional Sessions Judge,
Court No. 15, Bulandshahr against the
same
summoning
order
dated
29.03.2022, in which, the applicant,
who is complainant, filed objection
dated
19.04.2023
mentioning
the
relevant facts about dismissal of the
application under Section 482 Cr.P.C.
No. 10374 of 2022 vide order dated
15.09.2022 by the High Court (copy
whereof has been brought on record as
Annexure No. 10 to this application)
but the revisional court, ignoring the
said fact, allowed the criminal revision
vide order dated 26.05.2023 setting
aside
the
summoning
order
dated
29.03.2022
directing
the
learned
Magistrate concerned to pass fresh
order, which is the subject matter of
challenge by the complainant in the present
application.

5- On putting query as to whether
pursuant to order dated 26.05.2023, Chief
Judicial
Magistrate,
Bulandshahr
has
passed any further order in the matter or
not, it has been informed by learned
counsel for the parties that no further order
has been passed by the Chief Judicial
Magistrate.

6- Assailing the impugned order dated
26.05.2023, main substratum of argument
of learned counsel of the applicant is that
the accused persons-opposite party nos. 2,
3 and 4 have preferred criminal revision
518 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 397 and 399 Cr.P.C. against
the summoning order dated 29.03.2022
before the Additional Sessions Judge by
concealing the material fact that their
application under Section 482 Cr.P.C.
against the same summoning order has
already been rejected by the High Court
vide order dated 15.09.2022. The said fact
and order dated 15.09.2022 of the High
Court was brought to the notice of the
revisional Court by the applicant through
his objection, but the revisional Court
ignoring the objection of the applicant
illegally allowed the criminal revision filed
by the accused vide impugned order, which
is not sustainable and is liable to be
quashed.

7- Learned A.G.A. representing the
State has supported the summoning order
dated 29.03.2022 by contending that
considering the allegations levelled in the
complaint as well as statement under
Section 200 Cr.P.C. of the complainant and
witnesses under Section 202 Cr.P.C., the
cognizable offence is made out against the
opposite party nos. 2, 3 and 4, hence
summoning order was not liable to be
interfered with and the same has been
illegally set aside by the revisional Court.

8- Learned Additional Government
Advocate has fairly conceded that after the
High Court has declined to interfere with
the summoning order 29.03.2022 vide
order dated 15.09.2022 and this fact has
been brought to the notice of the Additional
Sessions Judge, Court No. 15, Bulandshahr
by the applicant by means of objection, the
Additional Sessions Judge should not have
entertained the revision and pass order, but
the learned Judge has not only entertained
the revision, but also set aside the
summoning order, which is in the teeth of
the order of this Court.

9- Learned counsel for opposite party
nos. 2, 3 and 4 in response submits that
after dismissal of the application under
Section 482 Cr.P.C. No. 10374 of 2022 of
the accused-opposite party nos. 2, 3 and 4
on 15.09.2022 by this Court, Criminal
Revision No. 49 of 2023 was filed by
opposite party nos. 2, 3 and 4 on the illadvise of their counsel.

10- Having heard the submissions of
learned counsel for the parties and perusing
the record, I find that it is also not in
dispute that the complainant, who himself
is injured, has received as many as eight
injuries on his body and in the x-ray report,
his nasal bone was found fractured. It is
well settled that at the stage of summoning
the accused under Section 204 Cr.P.C., the
Magistrate is not required to go into the
merit and demerit of the case. Genuineness
or otherwise of the allegations cannot be
even determined at the stage of summoning
the accused. Only prima facie satisfaction
of the learned Magistrate about the
existence of sufficient ground to proceed in
the matter is required.

11- In K.D Sharma Vs. Steel
Authority of India Limited and others,
(2008) 12 SCC 481, Supreme Court held
that no litigant can play "hide and seek"
with the courts or adopt "pick and choose".
To hold a writ of the court one should come
with candid facts and clean breast.
Suppression or concealment of material
facts is forbidden to a litigant or even as a
technique of advocacy.

12- The Supreme Court in Dalip
Singh Vs. State of Uttar Pradesh and
others, (2010) 2 SCC 114 came down
heavily on unscrupulous litigants by
holding that it is now well established that
a litigant who attempts to pollute the stream
10 All. Vaibhav Jaiswal Vs. State of U.P. & Ors.
519
of justice or who touches the pure fountain
of justice with tainted hands, is not entitled
to any relief, interim or final.

13- In K. Jayaram and others Vs.
Bangalore
Development
Authority
and others, (2022) 12 SCC 816,
Hon'ble Supreme Court held as under:

"It is necessary for us to state here
that in order to check multiplicity of
proceedings pertaining to the same
subject-matter and more importantly to
stop
the
menace
of
soliciting
inconsistent orders through different
judicial forums by suppressing material
facts either by remaining silent or by
making misleading statements in the
pleadings in order to escape the
liability of making a false statement, we
are of the view that the parties have to
disclose
the
details
of
all
legal
proceedings and litigations either past
or present concerning any part of the
subject-matter of dispute which is
within
their
knowledge.
In
case,
according to the parties to the dispute,
no
legal
proceedings
or
court
litigations was or is pending, they have
to
mandatorily
state
so
in
their
pleadings in order to resolve the
dispute
between
the
parties
in
accordance with law.

In the instant case, since the
appellants have not disclosed the filing
of the suit and its dismissal and also the
dismissal of the appeal against the
judgment
of
the
civil
court,
the
appellants have to be non-suited on the
ground of suppression of material facts.
They have not come to the court with
clean hands and they have also abused
the process of law. Therefore, they are
not entitled for the extraordinary,
equitable and discretionary relief."

14- Having considered the factual
aspect of the matter in hand and the
dictum of the Supreme Court, it is well
settled that honesty, fairness, purity of
mind should be of the highest order to
approach the court. In the present case,
the accused/opposite party nos. 2, 3 and 4
have misused the process of law by filing
criminal revision before the Additional
Sessions Judge, Bulandshahr suppressing
the material facts and documents that their
application under Section 482 Cr.P.C.
against the same summoning order has
already been dismissed vide order dated
15.09.2022 and despite written objection of
the complainant that an application under
Section 482 Cr.P.C. against the same
summoning
order
has
already
been
dismissed by the High Court, the revisional
court did not even care to mention and
discuss the same in the impugned order
dated 26.05.2023. As a fall out of the above
discussion, keeping in view the judicial
hierarchy, proprieties and discipline, this
Court is of the view that after dismissal of
an application under Section 482 Cr.P.C.
against the summoning order by the High
Court, the criminal revision under Section
397 and 399 Cr.P.C. against the same
summoning order before the Additional
Sessions Judge is not maintainable.

15- In view of the above, I do not find
any illegality in the summoning order dated
29.03.2022 passed by the Magistrate and
the same is impeccable. So far as impugned
order
dated
26.05.2023
passed
by
revisional Court (District and Sessions
Judge, Bulandshahr) is concerned, the same
is not sustainable in the eye of law and is
liable to be quashed.

16- Accordingly, the impugned order
dated 26.05.2023 passed by the Additional
Sessions Judge, Court No. 15, Bulandshahr
520 INDIAN LAW REPORTS ALLAHABAD SERIES
is quashed and summoning order dated
29.03.2022
passed
by
the
learned
Magistrate is upheld.

17- The instant application under
Section 482 Cr.P.C. stands allowed.

18- The opposite party nos. 2, 3 and 4
shall immediately surrender before the
concerned Court below, failing which the
coercive measure shall be adopted against
them in order to secure their presence. The
concerned Court below shall proceed with
the matter pursuant to summoning order
dated 29.03.2022 in accordance with law.

19- Registrar General of this Court is
directed to place a copy of this order before
the
Hon'ble
Administrative
Judge,
Bulandshahr for information.
----------
(2023) 10 ILRA 520
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.10.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Appeal U/S 37 of Arbitration & Conciliation Act
1996 Defective No. 53 of 2023
with
other connected cases

NHAI ...Appellant
Versus
Smt. Sampata Devi & Ors. ...Respondents

Counsel for the Appellant:
Madhukar Ojha

Counsel for the Respondent:
--

Civil Law - Arbitration and Conciliation
Act, 1996 - Sections 34, 37 & 43 -
Commercial Courts Act, 2015 - Section
13(1A) - Limitation Act, 1963 - Sections
5, -Articles 116, 117 - National Highways
Act, 1956 - Sections 3A, 3C, 3D, 3G - 3H -
Condonation of Delay - Appeal Against Arbitral
Award - Limitation Period - The National
Highways Authority of India (NHAI) filed appeals
under Section 37 of the Arbitration and
Conciliation Act, 1996, challenging the
dismissal of their Section 34 applications by
the Additional District & Sessions Judge,
Barabanki, against an arbitral award dated
20.05.2015 concerning compensation for
land acquired for National Highway No. 28.
The appeals were filed with delays ranging
from 115 to 318 days, accompanied by
applications for condonation of delay. Held:
(1) The applications for condonation of
delay were rejected, and the appeals were
dismissed as time-barred. (2) Under Section
13(1A) of the Commercial Courts Act, 2015,
the limitation period for filing an appeal
under Section 37 is 60 days for commercial
disputes with a specified value of INR
3,00,000 or more. (3) Section 5 of the
Limitation Act applies to Section 37 appeals,
allowing condonation of delay for sufficient
cause, but only short delays can be
condoned as an exception, not as a rule,
per Government of Maharashtra Vs Borse
Brothers Engineers & Contractors Pvt. Ltd.
(2021 SCC OnLine SC 233). (4) NHAI failed
to provide sufficient cause for the delays,
particularly for the six-month gap after
approval to file appeals was granted on
10.01.2023, with appeals filed in July 2023.
(5) The Supreme Court's rulings in U.O.I. Vs
Varindera Const. Ltd. (2020) 2 SCC 111 and
M/s N.VS International Vs St. of Assam
(Civil Appeal No. 9244 of 2019) were
overruled by Borse Brothers to the extent
they
imposed
a
120-day
cap
on
condonation, as neither the Arbitration Act
nor the Commercial Courts Act imposes
such a limit. (6) No special treatment is
afforded
to
government
bodies
for
condonation
of
delay,
per
Postmaster
General Vs Living Media India Ltd. (2012) 3
SCC 563. (7) The court emphasized the
Arbitration Act's objective of speedy dispute
resolution, rejecting NHAI's claims of procedural
delays and counsel's ailment as insufficient. (8)
The appeals were dismissed without costs.