Allahabad High Court
Anand Bihari Lal Saxena vs State Of U.P. And Others on 25 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- CRIMINAL MISC. WRIT PETITION No. - 4299 of 2011 Petitioner :- Anand Bihari Lal Saxena Respondent :- State of U.P. and Others Counsel for Petitioner :- Santosh Kumar Tiwari,Pramod Kr Srivastava,V.S. Sosodia,Virendra Singh Counsel for Respondent :- Govt. Advocate,Ashok Kumar Sharma,Rajiv Acharya Hon'ble Saurabh Shyam Shamshery,J.
The Court is considering initial proceedings arising out of summoning order dated 07.05.2002 whereby respondent Nos. 2 and 3 were summoned under Section 406, 419, 420 I.P.C. and 138 of N.I. Act after considering the evidence on record i.e. complaint, statement recorded under Sections 200 and 202 Cr.p.C. which was challenged by accused persons and was dismissed. Thereafter the matter came up before this Court by way of Criminal Misc. Writ Petition No. 8377 of 2003 which was allowed by an order dated 27.04.2007 and its operative portion is mentioned hereinafter -:
"The writ petition is allowed. The order dated 07.05.2002 passed by the trial court and the order dated 29.11.2003 passed by the court of revision, impugned in the writ petition are quashed. The matter is remanded back to the trial court for passing a reasoned order on the basis of the appreciation of the evidence produced before it after affording opportunity of hearing to the parties.
Dt. 27.07.2007"
In pursuance of above order, the matter was remanded back to decide afresh by the learned trial Court and by an order dated 14.01.2008 the accused persons were again summoned under Section 138 of N.I. Act and 420 I.P.C. The said order was challenged by way of Criminal Revision No. 77 of 2009 which was allowed by an order dated 07.04.2009 and the impugned summoning order therein was set aside as it was passed without hearing both the parties i.e. complainant as well as accused persons. The said order is challenged before this court.
Before going into merit of case, it appears that the order passed by this Court on 27.07.2007 has been misread while order of summoning impugned was set aside and the matter was remanded back to trial Court for passing a reasoned order. The opportunity of hearing has to be granted only to the complainant and not to the accused persons as it is settled position of law that at the stage of summoning, the only relevant party is the complainant and not accused persons as they came into picture only after order of summoning is passed.
Therefore, the Revisional Court has erred in law as well as of facts, hence, the impugned order is set aside and the order dated 27.07.2007 is revived.
However, there is another factor which requires consideration that whether in a complaint wherein both offences under Section 138 of N.I. Act and 420 I.P.C. can be tried separately and in this regard, the issue has already been referred to the Larger Bench of Supreme Court of India in the case of J. Vedhasingh vs. R.M. Govindan and others, 2022 SCC OnLine SC 1010. However, it is settled law that in the same proceedings, the offence under Section 138 of N.I. Act and Section 420 of I.P.C. cannot go together.
Therefore, summoning order dated 14.01.2008 is interfered only qua to summoning under Section 420 I.P.C. and proceedings shall go on under Section 138 of N.I. Act in accordance with law and learned trial Court is directed to conclude the trial expeditiously taking note of judgment of Supreme Court In Re : Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, 2021 SCC OnLine SC 325.
This application is disposed of.
Order Date :- 25.11.2022 Nirmal Sinha