Court No. - 1

Case :- APPLICATION U/S 482 No. - 2846 of 2021

Applicant :- Saroj Kanjilal

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Diwan Aslam,Arun Pratap

Singh,Kshitij Shailendra

Counsel for Opposite Party :- G.A.

Hon'ble Vivek Agarwal,J.

1. Sri Kshitij Shailendra, learned counsel for the applicant –

Saroj Kanjilal. Sri Janardan Prakash, learned AGA for the State.

2. This application under section 482 Cr.P.C. has been filed

being aggrieved of the summoning order dated 24.10.2019

passed by learned Judicial Magistrate-II, Jhansi in Case No.

2952 of 2019 under section 420 & 506 IPC.

3. Counsel for the applicant submits that in the agreement there

is clause 19.0 which provides for a mechanism for settlement of

disputes. It is submitted that matter has already been referred to

panel of Arbitrators situated at Calcutta and this dispute was

raised by the present applicant who represents M/S RXPE

Projects Private Limited against complainant i.e. M/S Jaya

Engineering & Constructions. It is further submitted that after

initiation of this dispute on 10.9.2018, Arbitral Tribunal has

already passed interim order and therefore in terms of the

provisions contained in Section 5 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as the Act, 1996

only), criminal proceedings cannot continue.

4. Counsel for the applicant also places reliance on the

provisions contained in UP Police Regulations, 104 (hereinafter

referred to as Police Regulation only) as contained in Chapter

XI, which reads as under:

"104.- When a report of a congizable offence is received, the

officer-in-charge of the station must decide whether

investigation is desirable. In exercising the discretion allowed

by Section 157(1)(b) of the Code of Criminal Procedure, he

should consider whether the case is for the civil rather than for

the criminal Courts and whether action by the police is

necessary in the interest of the administration or expedient for

the preservation of law and order."

5. It is submitted that once a case of civil nature was made out

especially when clause 5 of Police Regulation provides that in a

case under section 406 and 420 of the IPC when there is prima

facie evidence that case is of civil nature, no investigation

should be made.

6. Thus placing reliance on the provisions contained in Police

Regulation, section 5 of the Act, 1996, it is submitted that

summoning order be quashed.

7. Counsel for the State in his turn submits that there is no

illegality in the summoning order and applicant is always free

to present himself before the summoning court. Thereafter

present his defence at the time of framing of the charge under

section 228 of Cr.P.C., 1973.

8. After hearing counsel for the parties and going through the

record, certain facts need to be set in correct order. Firstly, FIR

was lodged on 14.8.2018 registering case crime no. 0136 of

2018, police station Badagaon, district Jhansi under section

420, 506 IPC, whereas admittedly arbitration proceedings were

initiated at the instance of the accused, present applicant on 10

September, 2018, as is evident from Annexure-18 annexed to

the present application.

9. Earlier applicant had approached the High Court by filing a

Criminal Misc. Writ Petition No. 29209 of 2018; Saroj Kanjilal

Vs. State of UP and others, which was heard by a Division

Bench of this Court in which orders were passed on 11.10.2018

in the following terms:-

"In view of the above, it is hereby directed that in case arrest of

petitioner is to be effectuated and the offence, in which he is

wanted, will not entail sentence of more that 7 years then in

that event concerned police personnel should deal with the

matter in compliance of the provisions as contained under

Section 4(1)(b) read with Section 41-A of the Cr.P.C.

It is further provided that if investigation in this matter has

been completed and police report under Secti