# Vijay v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-20
- **Case number:** Criminal Misc. Application U/S 482 No. 28701 of 2022
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-v-state-of-u-p-ors-50041
- **Pages:** 4

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
4 All. Vijay Vs. State of U.P.& Ors.
91
power , Section 200 - Examination of
complainant
,

Section
202
-
Postponement of issue of process , Indian
Penal Code, 1860 - Sections - 307, 323,
324, 504, 506 - Cross-examination is
conducted by the adverse party for trial
purposes under Section 137 Evidence Act .
(Para - 8)

Sessions Judge noted rivalry between parties -
criminal case of murder against petitioner father
- at evidence stage - accused persons claimed
alleged injuries were fake - C.M.O. ordered
petitioner
to
appear
for
a
re-medical
examination - but he couldn't - accused persons
used fake pellets to protect themselves from
murder and exert pressure - court did not find
any documents revealing petitioner's summons
by C.M.O. - rivalry dispute between parties not
considered - revisional court remands case to
proceed afresh, following the observations .
(Para - 9)

HELD:-Order of the revisional court that after
cross examining the complainant and the
witnesses, the learned Magistrate shall pass
orders does not seem to be tenable and is bad
in law. Order dated 28.7.2022 set aside to the
extent
it
directs
cross
examining
the
complainant and witnesses, while the rest is
upheld.
Magistrate
directed
to
proceed
according to law, disregarding revisional court's
direction for cross-examination of complainant
and witnesses.(Para - 9)

Petition disposed of. (E-7)

## Text

90 INDIAN LAW REPORTS ALLAHABAD SERIES
been served on seven days on local address
as it was sent through registered post. The
drawer of the cheque/applicant-accused
was supposed to make the payment of the
said amount of money to the payee within
15 days of the receipt of notice, therefore,
after expiry of 15 days within one month,
the complaint could have been filed which
has been done in this case. There is no
substance in the argument of learned
counsel for the applicant.

20. Even otherwise the applicant
accused has filed the summons of learned
trial court he has also filed the copy of the
complaint as well as the other documents
annexed with the complaint, therefore, it
will be presumed that he has received the
summons from the learned trial court along
with the copy of the complaint under
Section 138 of N.I. Act and therefore
cannot contend that there was no proper
service of notice as required under Section
138 of N.I. Act as held by the Apex Court
in the aforesaid case of C.C. Alavi Haji
(supra). Relevant para no. 17 is extracted.

17. It is also to be borne in mind
that the requirement of giving of notice is a
clear departure from the rule of criminal
law, where there is no stipulation of giving
of a notice before filing a complaint. Any
drawer who claims that he did not receive
the notice sent by post, can, within 15 days
of receipt of summons from the court in
respect of the complaint under Section 138
of the Act, make payment of the cheque
amount and submit to the court that he had
made payment within 15 days of receipt of
summons (by receiving a copy of complaint
with the summons) and, therefore, the
complaint is liable to be rejected. A person
who does not pay within 15 days of receipt
of the summons from the court along with
the copy of the complaint under Section
138 of the Act, cannot obviously contend
that there was no proper service of notice
as required under Section 138, by ignoring
statutory presumption to the contrary under
Section 27 of the GC Act and Section 114 of
the Evidence Act. In our view, any other
interpretation of the proviso would defeat
the very object of the legislation. As
observed in Bhaskaran case [(1999) 7 SCC
510 : 1999 SCC (Cri) 1284] if the "giving
of notice" in the context of Clause (b) of the
proviso was the same as the "receipt of
notice" a trickster cheque drawer would get
the premium to avoid receiving the notice
by adopting different strategies and escape
from legal consequences of Section 138 of
the Act.

21.
In
view
of
the
aforesaid
discussions and the law laid down by the
Apex Court, the petition fails and is
accordingly dismissed.
----------
(2023) 4 ILRA 90
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Application U/S 482 No. 28701 of
2022

Vijay ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sunil Kumar Yadav

Counsel for the Opposite Parties:
G.A., Sri Umesh Kumar

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
4 All. Vijay Vs. State of U.P.& Ors.
91
power , Section 200 - Examination of
complainant
,

Section
202
-
Postponement of issue of process , Indian
Penal Code, 1860 - Sections - 307, 323,
324, 504, 506 - Cross-examination is
conducted by the adverse party for trial
purposes under Section 137 Evidence Act .
(Para - 8)

Sessions Judge noted rivalry between parties -
criminal case of murder against petitioner father
- at evidence stage - accused persons claimed
alleged injuries were fake - C.M.O. ordered
petitioner
to
appear
for
a
re-medical
examination - but he couldn't - accused persons
used fake pellets to protect themselves from
murder and exert pressure - court did not find
any documents revealing petitioner's summons
by C.M.O. - rivalry dispute between parties not
considered - revisional court remands case to
proceed afresh, following the observations .
(Para - 9)

HELD:-Order of the revisional court that after
cross examining the complainant and the
witnesses, the learned Magistrate shall pass
orders does not seem to be tenable and is bad
in law. Order dated 28.7.2022 set aside to the
extent
it
directs
cross
examining
the
complainant and witnesses, while the rest is
upheld.
Magistrate
directed
to
proceed
according to law, disregarding revisional court's
direction for cross-examination of complainant
and witnesses.(Para - 9)

Petition disposed of. (E-7)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition has been filed under
Section 482 CrPC for setting aside
judgment and order dated 28.7.2022 passed
by Sessions Judge, Etah in Criminal
Revision No.63 of 2022 Chandra Kant alias
Vikku and others versus State of U.P. and
others under sections 307, 323, 324, 504,
506 I.P.C., P.S. Pilua, district Etah, with a
further prayer to remand back the case to
Sessions Judge, Etah to reconsider the
matter.

2. Heard learned counsel for the
petitioner, learned counsel for private
respondents and learned A.G.A. for the
State.

3. In brief, the case of the petitioner is
that he filed an application under section
156 CrPC before the trial court with the
allegation that on 25.12.2018 at 8.00a.m. he
along with one Raju alias Raj Kumar had
gone to attend call of nature and when they
reached near Primary School, Kapreta, they
found the accused persons, i.e. respondents
2 to 4 present there. They abused the
petitioner, beaten him and with an intent to
kill, the accused Shivkant and Shashikant
shot on him with fire arm, causing injury to
the petitioner by the shot of Shiv Kant. The
petitioner was escaped by the villagers.

4. Learned Addl. Civil Judge (Junior
Division)/Judicial Magistrate, Court No.21,
Etah after recording statement of the
complainant and witnesses under sections
200 and 202 CrPC passed order dated
10.5.2022 whereby the trial court took
cognizance and summoned the accused
Shivkant alias Bhalu, Shashikant alias
Gaurav under sections 323, 307, 504, 506
I.P.C. and and accused Chandrakant and
Abhishek under sections 323, 324, 504, 506
I.P.C.

5. Feeling aggrieved with order dated
10.5.2022 (supra), the accused persons
preferred a Criminal Revision No.63 of
2022 Chandrakant and three others versus
State of U.P. and another. The Sessions
Judge, Etah by the impugned order dated
28.7.2022 while allowing the revision
petition set aside the order passed by the
trial court with a direction to pass a fresh
92 INDIAN LAW REPORTS ALLAHABAD SERIES
order in the light of the observation made
in the order.

6. The learned counsel for the
petitioner has assailed the revisional court's
order mainly on the ground that the order
directing the trial court to pass a fresh order
after cross examining the complainant, i.e.
the petitioner and the witnesses with a view
to know the correct fact is bad in law and
being irregular is liable to be set aside.

7. Learned A.G.A. as well as learned
counsel for the private respondents have
opposed the petition.

8. A perusal of the order under
challenge reveals that the learned Sessions
Judge has noted in the impugned order that
there is a rivalry going on between the
parties and a criminal case of murder of the
father of the accused Shivkant is pending
against the petitioner and it is at the stage
of evidence.

Further it has been taken note of
by the learned revisional court that on the
complaint of the accused persons that the
alleged injuries on the person of the
petitioner are fake, the Chief Medical
Officer Etah vide order dated 4.1.2019
directed
the
petitioner/complainant
to
appear before him for his re-medical
examination
by
the
Medical
Board,
however, he could not turn up before him.
It was the case of the accused persons that
by arranging with the Doctor, fake pellets
were placed in the chest just below the skin
and with a view to protect himself from the
criminal offence of murder and exert
pressure, the petitioner/complainant made a
false case against the accused-respondents.
Learned revisional court further did not
find any document on record of the lower
court to disclose that the petitioner was
summoned by the Chief Medical Officer
for his medical examination before the
Medical Board.

A perusal of the order dated
10.5.2022 passed by learned trial court also
shows that the learned Magistrate while
summoning the accused persons did not
take into consideration the fact that the
P.W.3, Doctor has not deposed before the
court that the alleged injury caused to the
injured petitioner was an injury by fire arm,
nor there is any document on record to
prove the injury by fire arm. The rivalry
dispute going on between the parties has
not been taken into consideration by the
learned Magistrate. Taking this in view, the
revisional court's order does not call for any
interference to the extent it remands the
matter to proceed with the case afresh, in
accordance with law after taking into
consideration the observations contained in
it.

However,
the
order
of
the
revisional court that after cross examining
the complainant and the witnesses, the
learned Magistrate shall pass orders does
not seem to be tenable and is bad in law. In
this context, the law is very clear. The cross
examination is done by the adverse party
and it is for the purpose of trial within the
meaning of Section 137 Evidence Act.

9. In view of the above, the order
dated 28.7.2022(supra) to the extent it
directs cross examining the complainant
and witnesses is set aside. The rest part of
the order is upheld. The learned Magistrate
is directed to proceed with the case in
accordance with law and the discussions
made herein above, ignoring the direction
of the revisional court to cross examine the
complainant and the witnesses.

10. The petition is disposed of
accordingly.
4 All. Laxmi Shankar Pandey & Ors. Vs. State of U.P.& Anr.
93
----------
(2023) 4 ILRA 93
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.02.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Misc. Application U/S 482 No. 42957 of
2022

Laxmi Shankar Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sandeep Pandey

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections -323, 504, 506, 356 .

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Sections 155(2) , 200,
202, 203, 204(2) & 254 - If the Magistrate
taking cognizance of an offence considers
that
there
is
sufficient
ground
for
proceeding - he shall issue process against
the accused person -Object of requiring
the complainant/opposite party no.2 to
furnish a list of witnesses before issue of
process to the accused - contemplated
under Section 204(2) Cr.P.C. - to enable
the
accused
persons
to
prepare
themselves for their cross-examination -
nothing in section 204 Cr.P.C. says or
indicates that if no list of prosecution
witnesses is filed before the process is
issued to the accused, then none can be
filed later .(Para -8,10)

NCR filed by opposite party no.2 against
applicants - application under Section 155(2)
CrPC - requesting SHO to conduct investigation
- case treated as complaint case - summoned
applicants
-
appeared
before
court
and
obtaining bail - summoning order not passed
considering mandatory provision of Section
204(2) of CrPC - which requires list of
prosecution
witnesses
before
issuing
a
summons - process improper and illegal -
proceedings an abuse of law - application for
quashing entire proceedings & summoning
order.(Para -3,4)

HELD:-Section 204 (2) Cr.P.C. protects accused
interests from harassment by unscrupulous
litigants and does not limit Magistrate's power to
issue summons to witnesses under Section 254
(2) Cr.P.C.. Section 204(2) Cr.P.C. provisions do
not vitiate the issue of process or Court
jurisdiction, even if mandatory.(Para -10,11)

Application u/s 482 Cr.P.C. dismissed. (E7)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Sandeep Pandey, learned
counsel for the applicants, Mr. K.P. Pathak,
learned AGA for the State and perused the
records.

2. This application U/s 482 Cr.P.C. has
been filed by the applicant with a prayer to
quash
the
summoning
order
dated
04.09.2015
as
well
as
the
entire
proceedings of Old Case No.1118 of 2018
(New Case No.4678 of 2021) (Smt. Rajni
Mishra vs. Laxmi Shankar Pandey and
others), under Sections 323, 504, 506, 356
IPC, Police Station-Kotwali Katra, DistrictMirzapur, pending before the Court of
Chief Judicial Magistrate, Mirzapur.

3. Brief facts of the case are that an
NCR was lodged by the opposite party no.2
on 29.09.2014 against the applicants under
Sections 323, 504, 506 IPC at Police
Station-Kotwali Katra, District-Mirzapur.
Subsequently,
on
10.10.2014,
an