Allahabad High Court
Himanshu Upadhyaya vs State Of U.P. Thru. Addl. Chief ... on 25 September, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:61922
Court No. - 28
Case :- APPLICATION U/S 482 No. - 9292 of 2023
Applicant :- Himanshu Upadhyaya
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Home, Lucknow And Another
Counsel for Applicant :- Indra Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard Sri Indra Pratap Singh, learned counsel for the applicant, Sri Nirmal Kumar Pandey, learned A.G.A. for the State and perused the material placed on record.
The instant application under section 482 Cr.P.C. has been filed with the prayer to quash the impugned judgment and order dated 03-08-2023 contained as Annexure No. 1, passed by the learned Additional District and Sessions Judge/FTC-II, District-Raebareli in Criminal Revision No. 110 of 2022(Ram Sewak Vs State of U.P. and Another) and also the whole proceedings of complaint case no. 13614 of 2021(Ram Sewak Vs. Himanshu Upadhyaya).
The legal question has been raised by the learned counsel for the applicant that the learned revisional court, while passing the impugned order dated 03-08-2023, has given direction, which is not permissible under law as the same would affect the merit of the case before the trial court.
Adding his arguments, he submits that the fact which has been recorded in the finding clause that the written memo dated 07-08-2021, was received by the complainant on 16-08-2021, are the new facts, which were brought before the learned revisional court, but, it was not before the trial court. He added that because of the aforesaid finding, the prejudice is being caused to the present applicant inasmuch as this is also against the settled proposition of law. Thus, submission is that the impugned order dated 03-08-2023 passed by the revisioinal court, may be set aside to the extent of the fact i.e. 'the receiving of the return memo dated 07-08-2021, which was said to be received on 16-08-2021'.
On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that no prejudice would be caused to the present applicant and he has no locus to challenge the revisional order as well as the order passed by the trial court. He next added that infact, in the finding clause, the statement of the revisionist has been recorded and there is no direction at all to the trial court for deciding the matter in a particular way or manner. Thus, submission is that the instant application has no merit and is liable to be dismissed.
Having heard learned counsels for the parties and after perusal of the material placed on record, it transpires that initially a complaint was lodged by the revisionist before the trial court, which was dismissed and being aggrieved, he instituted a revision namely, Criminal Revision No. 110 of 2022 under section 397 of Cr.P.C.
When this court examines the impugned order dated 03-08-2023, it transpires that the learned trial court has recorded the statement in it's finding clause that 'the return memo dated 07-08-2021, was received by him on 16-08-2021', though as per the contention of learned counsel for the applicant, there was no such fact before the learned trial court at the time of hearing and this has been added upto the stage of revisional court. The order says that the learned trial court, will decide the matter in the light of the directions made in the revision and the matter has been remitted back to the trial court.
Since, it has been a settled law that the revisional court while remitting back the matter, could not decide the issue on it's own and no direction can be given which can affect the merit of the case and therefore, the order passed by the revisional court dated 03-08-2023, is modified to the extent that the learned trial court while deciding the matter, further, shall not be affected with any kind of direction, said to be issued by the revisional court.
With the aforesaid observations, the instant application is partly allowed.
Order Date :- 25.9.2023
AKS
