Dinesh Chandra Verma Vs the State of U.P. Thru. Its Addl. Chief Secy. Home Deptt. of Home, Govt. Lko. and Another

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Neutral Citation No. - 2024:AHC-LKO:59644

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 7595 of 2024

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Applicant :- Dinesh Chandra Verma

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Opposite Party :- The State Of U.P. Thru. Its Addl. Chief Secy. Home Deptt. Of Home, Govt. Lko. And Another Counsel for Applicant :- Praveen Kumar Yadav,Animesh Upadhyay,Neeraj Srivastava

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Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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Heard Sri Praveen Kumar Yadav, learned counsel for the applicant, and learned Additional Government Advocate appearing for the State.

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Instant petition under Section 528 of BNSS/482 Cr.P.C. has been filed raising a challenge to the order dated 04.03.2021 passed by learned trial court in Case No.4920 of 2012 in re: Vikas Chandra Verma vs. Dinesh Chandra Verma, a copy of which is Annexure-1 to the petition, whereby the application to recall the order dated 17.11.2017 has been dismissed. Also under challenge is the order dated 18.07.2024 passed by learned Additional Sessions Judge, Lucknow in Criminal Revision 100 of 2021, a copy of which is Annexure-2 to the petition, whereby the criminal revision filed by the applicant against the order dated 04.03.2021 has been dismissed.

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The contention of learned counsel for the applicant is that a complaint under Section 156(3) Cr.P.C. was filed by Sri Vikas Chandra Verma, who was the nephew of the applicant and died on 23.11.2016 during pendency of the proceedings. One Sri Rakesh Chandra Verma i.e. respondent no.2, who is the real brother of the applicant, filed an application for continuing the proceedings. In the said application, the respondent no.2 indicated himself to be son of the deceased. The learned court vide order dated 17.11.2017, a copy of which is Annexure-5 to the petition, allowed the said application and permitted him to continue in the proceedings. The applicant claims to have filed an application for recall of the order dated 17.11.2017 which has been rejected vide order dated

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04.03.2021. Being aggrieved, the applicant filed a revision which has also been rejected vide order dated 18.07.2024 and hence the instant petition.

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The argument of learned counsel for the applicant is that though admittedly any person could have continued the proceedings which were initiated by Sri Vikas Chandra Verma and for that matter even if respondent no.2 would have filed the application indicating himself to be the uncle of Sri Vikas Chandra Verma he could have been permitted to pursue the proceedings but because the application has been filed by respondent no.2 indicating himself to be the son of Sri Vikas Chandra Verma consequently the said order has been granted by fraud practiced by respondent no.2 which has not been appreciated by the learned court while rejecting the recall application vide order dated 04.03.2021 and in turn has not been appreciated by the revisional court while rejecting the revision of the applicant vide order dated 18.07.2024 and consequently all the orders impugned are patently vitiated on this ground alone.

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In this regard, learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of K.D. Sharma vs. Steel Authority of India Limited and others - (2008) 12 SCC 481 . Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Maj. Genl. A.S. Gauraya and another vs. S.N. Thakur and another - (1986) 2 SCC 709 to contend that in the case of death of a complainant the accused can be acquitted.

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Heard learned counsels for the contesting parties and perused the records.

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From perusal of the record, it emerges that one Sri Vikas Chandra Verma had filed a complaint under Section 156(3) Cr.P.C. against the applicant. During pendency of the said complaint, Sri Vikas Chandra Verma died on 23.11.2016. Admittedly, the said complaint could have continued by any person as stated by the learned counsel for the applicant. However, the respondent no.2 filed an application for continuing the said proceedings by indicating himself to be the son of Sri Vikas Chandra Verma despite he being the uncle of Sri Vikas Chandra Verma. The learned court vide order dated 17.11.2017 had allowed the said

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application. The application for recall indicating that the respondent no.2 is not the son of the deceased rather is the uncle of the deceased has been rejected and thereafter the revision filed by the applicant against the said order has also been rejected.

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The sheet anchor of the argument of learned counsel for the applicant is the judgment of the Hon'ble Supreme Court in the case of K.D. Sharma (supra) that an order obtained by fraud would be a nullity.

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The said judgment may not have any applicability in the facts of the instant case once no prejudice is caused to the applicant, as stated. The reason is that admittedly the said complaint could have been continued by any person meaning thereby that the said complaint after the death of Sri Vikas Chandra Verma could have been continued either by respondent no.2 in the capacity of being the uncle and thus merely because in the application which has been filed by respondent no.2 he has indicated himself to be son, would not make any difference to the order of the court dated 17.11.2017 wherein the respondent no.2 has been allowed to continue with the said proceedings. Thus, the said argument is rejected.

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So far as the judgment of Hon'ble Supreme Court in the case of S.N. Thakur (supra) is concerned, no doubt on the death of the complainant the accused could be acquitted but in the instant case when the learned court has allowed the application for continuation of the proceedings and admittedly as per learned counsel for the petitioner also the proceedings could have been continued by any person consequently the death of the complainant will not make any difference. Thus, the said argument is also rejected.

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Keeping in view the aforesaid discussion, no case for interference is made out. Accordingly, the petition is dismissed.

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Order Date :- 31.8.2024 A. Katiyar

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Digitally signed by :- AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

Dinesh Chandra Verma v. the State of U.P. Thru. Its Addl. Chief Secy. Home Deptt. of Home, Govt. Lko. and Another

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Dinesh Chandra Verma v. the State of U.P. Thru. Its Addl. Chief Secy. Home Deptt. of Home, Govt. Lko. and Another

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