Shyama Devi, and Another. Vs. State of U.P. and Another.

Shyama Devi, and Another. vs State of U.P. and Another.

Type Court Judgment Court Allahabad Decided Aug 02, 2010

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https://sooperkanoon.com/case/912165

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Citation: sooperkanoon.com/912165
Court: Allahabad High Court
Judge: Shri Kant Tripathi, J.
Decided On: Aug 02, 2010
Case Number: APPLICATION U/S 482 No. - 14610 of 2008
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

[K.T. Thomas and; R.P. Sethi, JJ.] - Civil Procedure Code (CPC) - Sections 104 - Order 39, Rules 1, 2, 2A, 3A, 4 and 10 - Order 43, Rule 1; Constitution of India - Article 227 - Orders from which appeal lies -- When a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the ...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) - Section 482; Indian Pebal Code (IPC) - Sections 420, 467, 468, 471

Parties & Advocates

Appellant / Petitioner

Shyama Devi, and Another.

Advocate R.O.V.S. Chauhan; S.O.V.S. Chauhan, Advs.

Respondent

State of U.P. and Another.

Advocate Rajiv Lochan Shukla, Govt. Adv.

Legal References

Acts: Code of Criminal Procedure (CrPC) - Section 482; Indian Pebal Code (IPC) - Sections 420, 467, 468, 471

Excerpt

[k.t. thomas and; r.p. sethi, jj.] - civil procedure code (cpc) - sections 104 - order 39, rules 1, 2, 2a, 3a, 4 and 10 - order 43, rule 1; constitution of india - article 227 - orders from which appeal lies -- when a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the defendants and obtained it, those defendants rushed to the high court to get that order quashed. appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant nos.1 to 5 from dispossessing him. documents perused. ad interim injunction till then. order 39 rule 3 to be complied with. after holding thus learned single judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously. order 43 rule 1 says that: an appeal shall lie from the following orders under the provisions of section 104 namely. an order under rule 1, rule 2, rule 2a, rule 4 or rule 10 of order 39. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. learned senior counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in rule 3 of order 39 be void. learned single judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. the aforesaid rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. second is the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing......family register. it was next submitted that the summoning order based on mere comparison of khataunis and previous family register with the disputed family register was not proper.7. in reply, mr. rajiv lochan shukla the learned counsel for the respondent no.2submitted that the summoning order has been passed on the basis of the materials collected during the investigation, therefore, it cannot be quashed on the ground that there was some error in making appraisal of the evidence onrecord.8. keeping in view the facts and circumstances of the case and submissions of the learned counsel for the parties, the summoning order which is based on the materials collected during the investigation cannot be quashed. the learned counsel for the applicants further submitted that the applicants may be provided a liberty to move an application through counsel for discharge so that they may place their view points before the magistrate on the basis of the materials collected during the investigation. it was next submitted that the applicants may be provided some interim protection in the bail matters. 9. keeping in view the facts and circumstances of the case, it is provided that if the applicants move any application for discharge through counsel, the same may be considered and disposed of in accordance with law without being influenced from the observations made herein before. it is further provided that if the applicants move any application for bail, the same may be considered and disposed of in accordance with the principles laid down by the apex court in the case of lal kamlendra pratap singh versus state of u.p. & others (2009) 4 scc 437.10 .with the aforesaid observations, the petition are finally disposed of.

Full Judgment

1. This is a petition under section 482 Cr.P.C. for quashing the order dated 2.11.2007 passed by Additional Sessions Judge, Court No.1 Etowah in criminal revision no. 290 of 2007 (Shyama Devi v. State of U.P.) where by the learned Additional Sessions Judge dismissed the revision filed on behalf of the applicant and confirmed the order dated 11.6.2007 passed by the Judicial Magistrate Its Etowah in case crime no. 160 of 2005 under sections 420, 467, 468, 471 IPC.

2. It appears that in the aforesaid case the investigating officer submitted a final report on the ground that no case was made out. The respondent no.2 Smt. Saroj, who is the complainant, moved a protest petition against the final report. The learned Magistrate considered the protest petition report and perused the entire case diary and arrived at the conclusion that the final report was not correct and there were sufficient materials on record to take cognizance of the offences under section 420, 467, 468 and 471 IPC and he accordingly summoned the applicants as accused.

3. The counter affidavit has been filed on behalf of the applicant. No rejoinder affidavit has been filed.

4. It appears that in the present case the respondent no.2 Smt. Saroj was the wife of the deceased Ajay Krishan who died in a road accident. The case of the applicants is that the respondent no.2, after the death of her husband Ajay Krishan, remarried with one Surendra Singh, therefore, she lost her rights not only in the agricultural land and other properties left by her husband Ajay Krishan but also became disentitled to continue with the job she obtained in place of her husband after his death. In support of this plea a reliance was placed on an entry made in the family register in which the respondent no.2 was shown as the wife of Surendra Singh. The said entry in the family register was made on the application moved by Surendra Singh.

5. The respondent no.2 lodged the FIR with the allegations that the family register entry showing her as the wife of Surendra Singh was a forged entry made in connivance with the applicants. The investigating officer concluded the matter with the observation that no criminal case was made out. The Learned Magistrate seems to have perused the entire case diary and its annexure and arrived at a prima facie conclusion that the respondent no.2 is the widow of Ajay Krishan and, therefore, the family register entry showing the respondent no.2 as wife of Surendra Singh was not genuine and was forged.

6. The learned counsel for the applicant submitted that the learned Magistrate has failed to see as to whether there was any material in the case diary to support that the respondent no.2 remarried with Surendra Singh. If there was no such material, the family register entry showing the respondent no.2 as wife of Surendra Singh ought not to have been prima facie adjudged as forged only on the ground of Khatauni entries and previous family register. It was next submitted that the summoning order based on mere comparison of Khataunis and previous family register with the disputed family register was not proper.

7. In reply, Mr. Rajiv Lochan Shukla the learned counsel for the respondent no.2submitted that the summoning order has been passed on the basis of the materials collected during the investigation, therefore, it cannot be quashed on the ground that there was some error in making appraisal of the evidence onrecord.

8. Keeping in view the facts and circumstances of the case and submissions of the learned counsel for the parties, the summoning order which is based on the materials collected during the investigation cannot be quashed. The learned counsel for the applicants further submitted that the applicants may be provided a liberty to move an application through counsel for discharge so that they may place their view points before the Magistrate on the basis of the materials collected during the investigation. It was next submitted that the applicants may be provided some interim protection in the bail matters.

9. Keeping in view the facts and circumstances of the case, it is provided that if the applicants move any application for discharge through counsel, the same may be considered and disposed of in accordance with law without being influenced from the observations made herein before. It is further provided that if the applicants move any application for bail, the same may be considered and disposed of in accordance with the principles laid down by the Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. & others (2009) 4 SCC 437.

10 .With the aforesaid observations, the petition are finally disposed of.

Same Court & Year Allahabad · 2010 Same Parties Shyama Devi, and Another. vs State of U.P. and Another. Same Subject Criminal Same Judge Shri Kant Tripathi, J. Acts & Sections Code of Criminal Procedure (CrPC) - Section 482; Indian Pebal...

Criminal