Criminal Appeal No. 112 of 2024 · High Court

26.06.2024. Therefore, the court directed Sri Ratnesh Kumar Srivastava, learned Additional District & Sessions Judge, Court No.14, Prayagraj to submit his explanation why the date has been changed from 11.07.2024 to

11.06.2024 in absence of the appellant and this case was posted on

03.01.2025.

3. In pursuance of order dated 11.12.2024, Sri Ratnesh Kumar Srivastava, learned Additional District & Sessions Judge, has submitted his explanation mentioning therein that this fact is correct that appeal filed by the present applicant was posted on 30.05.2024 and on that date, next date was fixed as 11.07.2024 but by tampering the same, date was changed from

11.07.2024 to 11.06.2024 and within a span of 15 days, three dates were fixed and appeal was dismissed for want of prosecution.

4. On 03.01.2025, learned counsel for the applicant had submitted that though the learned Additional District & Sessions Judge, Sri Ratnesh Kumar Srivastava, has submitted that he has not changed the date from

11.07.2024 to 11.06.2024 but he himself dismissed the appeal of the applicant on 26.06.2024. Therefore, this court again directed learned Additional District & Sessions Judge, Court No.14, Prayagraj to submit fresh explanation vide order dated 03.01.2025. By this order, District Judge, Prayagraj was also directed to conduct enquiry as to how the date of order has been changed in Criminal Appeal No.112 of 2024 from 11.07.2024 to

11.06.2024 in absence of the appellant, when the same was fixed in presence of the appellant.

5. The order dated 03.01.2025 is being quoted as under: "1. Heard Sri Pravesh Kumar Yadav, in person and Sri Ratnesh Nandan Singh, learned A.G.A for the State.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 26.06.2024 passed by Sessions Judge, Prayagraj in Criminal Appeal No.112 of 2024 as well as entire proceedings of Complaint Case No.638 of 2022, under Sections 12, 18, 19, 20, 21, 22, 23 Protection of Women from Domestic Violence Act, 2005, pending in the court of Additional Chief Judicial Magistrate, Court No.5, Prayagraj.

3. This Court vide order dated 11.12.2024 directed the Incharge District Judge/ Additional District Judge, Court No.14, Prayagraj, Sri Ratnesh Kumar Srivastava to submit his explanation why he had changed the date from

11.07.2024 to 11.06.2024 in the order sheet, in absence of counsel for the applicant and subsequently dismissed the same for want of prosecution on

26.06.2024. The order dated 11.12.2024 passed by this Court is being quoted as below: "1. Heard Sri Pawan Kumar Shukla, learned counsel for the applicant, Sri Brijesh Kumar Dwivedi, learned A.G.A for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 26.06.2024 passed Sessions Judge, Prayagraj in Criminal Appeal No.112 of 2024 as well as entire proceedings of Complaint Case No.638 of 2022, under Sections 12, 18, 19, 20, 21, 22, 23 Protection of Women from Domestic Violence Act, 2005, pending in the court of Additional Chief Judicial Magistrate, Court No.5, Prayagraj.

3. Contention of learned counsel for the applicant is that the applicant had filed an appeal under Section 29 of the Domestic Violence Act against the order dated 26.05.2023 by which notice was issued to the applicant on the application filed by opposite party no.2 under Section 23 of the Domestic Violence Act though the appeal was posted for 30.05.2024. On that date, the applicant sought adjournment on the ground that he had filed an Application U/S 482 No.13501 of 2024 against the proceeding under Section 498A of IPC between the same parties before the High Court and the same is pending for mediation and next date fixed was 8th July, 2024. On that ground, appellate court directed that this matter would be posted after 8th July, 2024 and fixed for 11.07.2024, the applicant had also noted that date. Thereafter, in the absence of the applicant, the date was changed as 11.06.2024 in place of

11.07.2024 (by changing the digit '7' as '6') without intimating the applicant and in absence of the applicant, the matter was posted for 11.06.2024,

13.06.2024 and 18.06.2024 and finally appeal of the applicant got dismissed on

26.06.2024 for want of prosecution despite the fact that the applicant was not aware about the date in appeal as the same was fixed for 11th July, 2024 though this Court is of the opinion that appeal itself was not maintainable even then changing the date by making correction in absence of the applicant/appellant is serious misconduct on the part of Incharge Session/ Additional District Judge, Court no.14, Parayagraj.

4. In view of above, Sri Ratnesh Kumar Srivatava, Incharge Session Judge/ Additional Session Judge, Court no.14, Prayagraj is directed to submit his explanation as to why he has changed the date from 11.07.2024 to 11.06.2024 in absence of counsel for the applicant and subsequently dismissed the same on want of prosecution.

5. Put up this case as fresh on 17.12.2024. By that date, the concerned Incharge/Additional Sessions Judge, Prayagraj will submit his explanation through Registrar General of this Court.

6. Registrar (Compliance) is directed to send a copy of this order to Incharge Session Judge/ Additional Sessions Judge, Court No.14, Prayagraj."

4. In pursuance of the order dated 11.12.2024, Sri Ratnesh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj has submitted his explanation dated 16.12.2024. In his explanation, he has submitted that he is not aware as to how the date has been changed and he has also admitted that actually 11.07.2024 was fixed as next date on 30.05.2024. It is further mentioned in the explanation that while changing the date, there should be initial of concerned Judge. But the order dated 26.06.2024 by which the appeal of the applicant was dismissed for want of prosecution by Sri Ratnesh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj himself shows that the explanation of Sri Srivastava is absolutely contrary to record. If he is not aware about the change in date from 11.07.2024 to 11.06.2024 then why he has passed the final order on 26.06.2024 which is prior to next date i.e.

11.07.2024. Such incorrect explanation regarding tempering of the date in the order sheet without notice to the parties will amount to dereliction of duty.

5. Therefore, before referring this matter to the Administrative Committee so as to initiate disciplinary proceeding against Sri Ratensh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagra, it would be appropriate to give him one more opportunity to explain his negligence and incorrect reply by him stating that he was not aware as to how the date 11.07.2024 to 11.06.2024 has been changed despite the fact that he himself passed the order in criminal appeal on 26.06.2024.

6. The District Judge, Prayagraj is directed to conduct an inquiry as to how the date of order has been changed in Criminal Appeal No.112 of 2024 despite the fact that on 30.05.2024 date was fixed as 11.07.2024 and the learned Additional Sessions Judge, Prayagraj himself admitted that he has not changed the date in the order sheet. The District Judge, Prayagraj shall submits his report to this Court by next date fixed.

7. Put up this case as fresh on 17.01.2025 among top 10 cases.

8. By that date, Sri Ratensh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj will also submit his explanation.

9. Registrar (Compliance) is directed to communicate this order to the District Judge, Prayagraj as well as Sri Ratnesh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj for its compliance."

6. In pursuance of order dated 03.01.2025, learned Additional District & Sessions Judge, Court No.14, Prayagraj has submitted an explanation that interpolation has been made by any person because on 30.05.2024, he had fixed the next date as 11.07.2024 and in case any date is changed, it can be changed by the initial of the concerned Presiding Officer and in the order sheet, there is no initial made by him. Along with this report, dictation made by learned Additional District & Sessions Judge, Court No.14, Prayagraj has also been annexed which shows that next date fixed was 11.07.2024. It was also mentioned that, on 24.06.2024, appeal of the applicant was not dismissed for want of prosecution by him but by the Incharge Sessions Judge on that date. Therefore, explanation submitted by learned Additional District & Sessions Judge, Court No.14, Prayagraj, is correct and no fault can be assigned to Additional District & Sessions Judge, Court no.14, Prayagraj, Sri Ratnesh Kumar Srivastava. It appears that the second explanation was sought from learned Additional District & Sessions Judge, Court No.14, Prayagraj because of the misrepresentation on the part of the applicant, who is present in person before this court.

7. In pursuance of the order dated 03.01.2025, learned District Judge, Prayagraj has also submitted enquiry report dated 16.01.2025 in a sealed cover which has been opened before this Court by the Bench Secretary. As per this enquiry report, it was found that actually the appeal in question was posted before learned Additional District & Sessions Judge, Sri Ratnesh Kumar Srivastava on 30.05.2024. On that date, the next date was fixed as

11.07.2024 and tampering was made in the date by changing the same from 11.07.2024 to 11.06.2024 by any person. It was also mentioned in that report that issue of tampering the date came into his knowledge in another case u/s 25 of Guardians and Wards Act, 1890 between the same parties which is pending before the Additional Principal Judge, Family Court, Court No.4, Prayagraj. But it could not be determined who had tampered the date in that case. It is further submitted that after the enquiry, it was found that date in the criminal appeal no.112 of 2024 was neither changed by any Judicial Officer nor any employee. This act could be on the part of either of the parties, who had taken advantage of huge pendency and may have made interpolation in the date.

8. From the above, it is clear that there is no fault on the part of any Judicial Officer or any employee of the district judgeship, Prayagraj in tampering the date from 11.07.2024 to 11.06.2024 and it is also undisputed that actually the date was fixed on 11.07.2024 and because of this tampering, case was posted on 26.06.2024 and on that date, this case was mistakenly dismissed for want of prosecution.

9. In view of the above, the order dated 26.06.2024 passed by the Incharge Sessions Judge, Prayagraj in Criminal Appeal No.112 of 2024 is hereby set aside and the appellate court is directed to hear the criminal appeal no.112 of 2024 afresh.

10. It is made clear that this court has not expressed any opinion regarding maintainability of the appeal against the issuance of notice dated

26.05.2023.

11. In view of the above, present application is disposed of. Order Date :- 17.1.2025 S.Chaurasia

26.06.2024. Therefore, the court directed Sri Ratnesh Kumar Srivastava, learned Additional District & Sessions Judge, Court No.14, Prayagraj to submit his explanation why the date has been changed from 11.07.2024 to

11.06.2024 in absence of the appellant and this case was posted on

03.01.2025.

3. In pursuance of order dated 11.12.2024, Sri Ratnesh Kumar Srivastava, learned Additional District & Sessions Judge, has submitted his explanation mentioning therein that this fact is correct that appeal filed by the present applicant was posted on 30.05.2024 and on that date, next date was fixed as 11.07.2024 but by tampering the same, date was changed from

11.07.2024 to 11.06.2024 and within a span of 15 days, three dates were fixed and appeal was dismissed for want of prosecution.

4. On 03.01.2025, learned counsel for the applicant had submitted that though the learned Additional District & Sessions Judge, Sri Ratnesh Kumar Srivastava, has submitted that he has not changed the date from

11.07.2024 to 11.06.2024 but he himself dismissed the appeal of the applicant on 26.06.2024. Therefore, this court again directed learned Additional District & Sessions Judge, Court No.14, Prayagraj to submit fresh explanation vide order dated 03.01.2025. By this order, District Judge, Prayagraj was also directed to conduct enquiry as to how the date of order has been changed in Criminal Appeal No.112 of 2024 from 11.07.2024 to

11.06.2024 in absence of the appellant, when the same was fixed in presence of the appellant.

5. The order dated 03.01.2025 is being quoted as under: "1. Heard Sri Pravesh Kumar Yadav, in person and Sri Ratnesh Nandan Singh, learned A.G.A for the State.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 26.06.2024 passed by Sessions Judge, Prayagraj in Criminal Appeal No.112 of 2024 as well as entire proceedings of Complaint Case No.638 of 2022, under Sections 12, 18, 19, 20, 21, 22, 23 Protection of Women from Domestic Violence Act, 2005, pending in the court of Additional Chief Judicial Magistrate, Court No.5, Prayagraj.

3. This Court vide order dated 11.12.2024 directed the Incharge District Judge/ Additional District Judge, Court No.14, Prayagraj, Sri Ratnesh Kumar Srivastava to submit his explanation why he had changed the date from

11.07.2024 to 11.06.2024 in the order sheet, in absence of counsel for the applicant and subsequently dismissed the same for want of prosecution on

26.06.2024. The order dated 11.12.2024 passed by this Court is being quoted as below: "1. Heard Sri Pawan Kumar Shukla, learned counsel for the applicant, Sri Brijesh Kumar Dwivedi, learned A.G.A for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 26.06.2024 passed Sessions Judge, Prayagraj in Criminal Appeal No.112 of 2024 as well as entire proceedings of Complaint Case No.638 of 2022, under Sections 12, 18, 19, 20, 21, 22, 23 Protection of Women from Domestic Violence Act, 2005, pending in the court of Additional Chief Judicial Magistrate, Court No.5, Prayagraj.

3. Contention of learned counsel for the applicant is that the applicant had filed an appeal under Section 29 of the Domestic Violence Act against the order dated 26.05.2023 by which notice was issued to the applicant on the application filed by opposite party no.2 under Section 23 of the Domestic Violence Act though the appeal was posted for 30.05.2024. On that date, the applicant sought adjournment on the ground that he had filed an Application U/S 482 No.13501 of 2024 against the proceeding under Section 498A of IPC between the same parties before the High Court and the same is pending for mediation and next date fixed was 8th July, 2024. On that ground, appellate court directed that this matter would be posted after 8th July, 2024 and fixed for 11.07.2024, the applicant had also noted that date. Thereafter, in the absence of the applicant, the date was changed as 11.06.2024 in place of

11.07.2024 (by changing the digit '7' as '6') without intimating the applicant and in absence of the applicant, the matter was posted for 11.06.2024,

13.06.2024 and 18.06.2024 and finally appeal of the applicant got dismissed on

26.06.2024 for want of prosecution despite the fact that the applicant was not aware about the date in appeal as the same was fixed for 11th July, 2024 though this Court is of the opinion that appeal itself was not maintainable even then changing the date by making correction in absence of the applicant/appellant is serious misconduct on the part of Incharge Session/ Additional District Judge, Court no.14, Parayagraj.

4. In view of above, Sri Ratnesh Kumar Srivatava, Incharge Session Judge/ Additional Session Judge, Court no.14, Prayagraj is directed to submit his explanation as to why he has changed the date from 11.07.2024 to 11.06.2024 in absence of counsel for the applicant and subsequently dismissed the same on want of prosecution.

5. Put up this case as fresh on 17.12.2024. By that date, the concerned Incharge/Additional Sessions Judge, Prayagraj will submit his explanation through Registrar General of this Court.

6. Registrar (Compliance) is directed to send a copy of this order to Incharge Session Judge/ Additional Sessions Judge, Court No.14, Prayagraj."

4. In pursuance of the order dated 11.12.2024, Sri Ratnesh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj has submitted his explanation dated 16.12.2024. In his explanation, he has submitted that he is not aware as to how the date has been changed and he has also admitted that actually 11.07.2024 was fixed as next date on 30.05.2024. It is further mentioned in the explanation that while changing the date, there should be initial of concerned Judge. But the order dated 26.06.2024 by which the appeal of the applicant was dismissed for want of prosecution by Sri Ratnesh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj himself shows that the explanation of Sri Srivastava is absolutely contrary to record. If he is not aware about the change in date from 11.07.2024 to 11.06.2024 then why he has passed the final order on 26.06.2024 which is prior to next date i.e.

11.07.2024. Such incorrect explanation regarding tempering of the date in the order sheet without notice to the parties will amount to dereliction of duty.

5. Therefore, before referring this matter to the Administrative Committee so as to initiate disciplinary proceeding against Sri Ratensh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagra, it would be appropriate to give him one more opportunity to explain his negligence and incorrect reply by him stating that he was not aware as to how the date 11.07.2024 to 11.06.2024 has been changed despite the fact that he himself passed the order in criminal appeal on 26.06.2024.

6. The District Judge, Prayagraj is directed to conduct an inquiry as to how the date of order has been changed in Criminal Appeal No.112 of 2024 despite the fact that on 30.05.2024 date was fixed as 11.07.2024 and the learned Additional Sessions Judge, Prayagraj himself admitted that he has not changed the date in the order sheet. The District Judge, Prayagraj shall submits his report to this Court by next date fixed.

7. Put up this case as fresh on 17.01.2025 among top 10 cases.

8. By that date, Sri Ratensh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj will also submit his explanation.

9. Registrar (Compliance) is directed to communicate this order to the District Judge, Prayagraj as well as Sri Ratnesh Kumar Srivastava, Additional Sessions Judge, Court No.14, Prayagraj for its compliance."

6. In pursuance of order dated 03.01.2025, learned Additional District & Sessions Judge, Court No.14, Prayagraj has submitted an explanation that interpolation has been made by any person because on 30.05.2024, he had fixed the next date as 11.07.2024 and in case any date is changed, it can be changed by the initial of the concerned Presiding Officer and in the order sheet, there is no initial made by him. Along with this report, dictation made by learned Additional District & Sessions Judge, Court No.14, Prayagraj has also been annexed which shows that next date fixed was 11.07.2024. It was also mentioned that, on 24.06.2024, appeal of the applicant was not dismissed for want of prosecution by him but by the Incharge Sessions Judge on that date. Therefore, explanation submitted by learned Additional District & Sessions Judge, Court No.14, Prayagraj, is correct and no fault can be assigned to Additional District & Sessions Judge, Court no.14, Prayagraj, Sri Ratnesh Kumar Srivastava. It appears that the second explanation was sought from learned Additional District & Sessions Judge, Court No.14, Prayagraj because of the misrepresentation on the part of the applicant, who is present in person before this court.

7. In pursuance of the order dated 03.01.2025, learned District Judge, Prayagraj has also submitted enquiry report dated 16.01.2025 in a sealed cover which has been opened before this Court by the Bench Secretary. As per this enquiry report, it was found that actually the appeal in question was posted before learned Additional District & Sessions Judge, Sri Ratnesh Kumar Srivastava on 30.05.2024. On that date, the next date was fixed as

11.07.2024 and tampering was made in the date by changing the same from 11.07.2024 to 11.06.2024 by any person. It was also mentioned in that report that issue of tampering the date came into his knowledge in another case u/s 25 of Guardians and Wards Act, 1890 between the same parties which is pending before the Additional Principal Judge, Family Court, Court No.4, Prayagraj. But it could not be determined who had tampered the date in that case. It is further submitted that after the enquiry, it was found that date in the criminal appeal no.112 of 2024 was neither changed by any Judicial Officer nor any employee. This act could be on the part of either of the parties, who had taken advantage of huge pendency and may have made interpolation in the date.

8. From the above, it is clear that there is no fault on the part of any Judicial Officer or any employee of the district judgeship, Prayagraj in tampering the date from 11.07.2024 to 11.06.2024 and it is also undisputed that actually the date was fixed on 11.07.2024 and because of this tampering, case was posted on 26.06.2024 and on that date, this case was mistakenly dismissed for want of prosecution.

9. In view of the above, the order dated 26.06.2024 passed by the Incharge Sessions Judge, Prayagraj in Criminal Appeal No.112 of 2024 is hereby set aside and the appellate court is directed to hear the criminal appeal no.112 of 2024 afresh.

10. It is made clear that this court has not expressed any opinion regarding maintainability of the appeal against the issuance of notice dated

26.05.2023.

11. In view of the above, present application is disposed of. Order Date :- 17.1.2025 S.Chaurasia