# Ajay Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 420
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-18
- **Case number:** Application U/S 482 No. 8349 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-ors-v-state-of-u-p-anr-54670
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Quashing of
Summoning Order -Challenge to summoning
9 All. Ajay Kumar & Ors. Vs. State of U.P. & Anr.
421
order under Sections 323, 504 & 506 IPC -
Grounds for challenge - Non-summoning of all
named persons - Section 204(2) Cr.P.C. - List
of witnesses not provided before issuance of
summons - Discretion of court to summon
persons involved in the offence - No prejudice
caused by non-compliance with Section 204(2) -
Provision of Section 204(2) Cr.P.C. held to be
directory in nature - Mere non-compliance does
not vitiate proceedings unless prejudice is
shown.

Application dismissed. (E-9)

List of Cases cited:

## Text

420 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the law of evidence. The
defence of the accused is required to be
taken note of in the trial by the trial Court.
At this stage, a mini trial is not permissible.
At the stage of framing of charge as also
while exercising power under the said
provision, the material/ evidence collected
during investigation by the Investigating
Officer and in the case of complaint the
documents and evidence produced by the
complainant before the court concerned can
only
be
considered.
[See:
Mohd.
Allauddin Khan Vs. The State of Bihar
And Others (2019) 6 SCC 107); R. P.
Kapur Vs. State of Punjab AIR 1960 SC
866; State of Haryana And Others Vs.
Ch. Bhajan Lal And Others 1992 Supp.
(1) SCC 355; State of Bihar & Anr.
Versus P. P. Sharma & Anr.; 1992 Supp
(1) SCC 222; Zandu Pharmaceuticals
Works Ltd. & Ors. Versus Mohammad
Shariful Haque & Anr.; 2005 (1) SCC
122; M. N. Ojha Vs. Alok Kumar
Srivastava; 2009 (9) SCC 682; Rajeev
Kourav Vs. Baisahab & Others (2020) 3
SCC 317; State of U.P. Vs. Akhil Sharda
& Others 2022 SCC OnLine SC; Salib
alias Shalu alias Salim Vs. State of U.P.
and Others]. The defence which is
irrefutable/
indisputable/
undeniable/
unquestionable/
irrefragable/
beyond
suspicion may be considered in exceptional
circumstances in the peculiar facts of a
given case by this Court while exercising
its power/ jurisdiction under the said
provisions. [See: Harshendra Kumar D.
Vs. Rebatilata Koley and Others, (2011)
3 SCC 351; G. N. Mishra And Another
Vs. Smt. Divya Awasthi And Another,
MANU/UP/1879/2012].

13. Learned counsel for the applicant
has not shown any material to establish that
the evidence, which to the view of this
Court is not beyond suspicion, relied upon
in this application was verified by the
Investigating Officer during investigation.
In this view of the matter, the same cannot
be considered at this stage.

14. Having considered the aforesaid
facts as also the observations made by the
Hon'ble Apex Court in the judgments,
referred above, this Court is of the view
that no interference is required in this case
on the basis of plea of 'Alibi' taken by the
applicant.

15.

Accordingly,
the
present
application is dismissed. No order as to
costs.

16. The Court records the valuable
assistance given by Ms. Urmish Shankar,
Research Associate, attached with me in
drafting this judgment and finding out case
laws applicable in the present case.
---------
(2024) 9 ILRA 420
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Application U/S 482 No. 8349 of 2024

Ajay Kumar & Ors. ...Applicants
 Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Pradeep Kumar Srivastava, Sanjay Misra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Quashing of
Summoning Order -Challenge to summoning
9 All. Ajay Kumar & Ors. Vs. State of U.P. & Anr.
421
order under Sections 323, 504 & 506 IPC -
Grounds for challenge - Non-summoning of all
named persons - Section 204(2) Cr.P.C. - List
of witnesses not provided before issuance of
summons - Discretion of court to summon
persons involved in the offence - No prejudice
caused by non-compliance with Section 204(2) -
Provision of Section 204(2) Cr.P.C. held to be
directory in nature - Mere non-compliance does
not vitiate proceedings unless prejudice is
shown.

Application dismissed. (E-9)

List of Cases cited:

1. Rosy & anr. Vs St. of Kerela, reported in 2000
(2) SCC 230
2. Dilip Kumar Basu Vs St. of W.B. & ors.
reported in 2015 (8) SCC 744

3. Bachanan Devi & anr. Vs Nagar Nigam,
Gorakhpur & anr. reported in 2008 (12) SCC
372

4. Moti Lal & ors. Vs St. of U.P. & anr.

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard.

2. Under challenge is the order dated
09.07.2024 passed by learned Additional
Sessions Judge / Special Judge, P.C. Act,
Lucknow in Criminal Revision No. 10 of
2023 in re: Vidya Sagar and others vs State
of U.P. and others, a copy of which is
annexure 2 to the application, by which the
revision filed by the applicants has been
rejected. Also under challenge is the order
dated 28.05.2019, a copy of which is
annexure 1 to the application, whereby the
applicants
have
been
summoned
for
offences under Sections 323, 504 and 506
I.P.C.

3. Only two grounds which are raised
in order to challenge the said orders are (a)
of nine persons who are named in the
application under Section 156(3) Cr.P.C.
only four persons have been summoned
and (b) prior to summoning the provisions
of Section 204 (2) Cr.P.C. has not been
followed.

4. No other ground has been urged.

5. So far as ground (a) is concerned
suffice to states that it is the discretion of
court to summon any person who is found
to be prima facie involved in an offence.
Merely because various persons may have
been named in an application filed under
Section 156(3) Cr.P.C. it cannot be
construed that all persons named in
application should be summoned.

6. Thus, the ground (a) is rejected.

7. So far as ground (b) is concerned
i.e. the list of witnesses was not indicated
which appears in terms of Section 204(2)
Cr.P.C. that no summon or warrant shall be
issued against the accused under Section
204(1) Cr.P.C. until a list of prosecution
witnesses are filed, the said ground may
also not detain Court considering the law
laid down by this Court at Allahabad in
order
dated
14.09.2022
passed
in
APPLICATION U/S 482 No. - 19772 of
2022 in re: Moti Lal And 2 Others vs
State of U.P. and Another wherein this
Court has held as under:

"13. Although, in Section 204 (2)
Cr.P.C. the word"shall" is used but it
does not mean that whenever there is a
word"shall" has been used under any Act in
respect of a provision then the provision
will be mandatory one.

14. The Apex Court in the case of
Bachanan Devi and another Vs. Nagar
422 INDIAN LAW REPORTS ALLAHABAD SERIES
Nigam, Gorakhpur and another reported in
2008 (12) SCC 372 observed as:

"14. ".....Mere use of word 'may'
or 'shall' is not conclusive. The question
whether a particular provision of a statute
is directory or mandatory cannot be
resolved by laying down any general rule
of universal application. Such controversy
has to be decided by ascertaining the
intention of the Legislature and not by
looking at the language in which the
provision is clothed. And for finding out the
legislative intent, the Court must examine
the scheme of the Act, purpose and object
underlying the provision, consequences
likely to ensue or inconvenience likely to
result if the provision is read one way or
the other and many more considerations
relevant to the issue."

15. The Apex Court in the case of
Dilip Kumar Basu Vs. State of W.B. and
others reported in 2015 (8) SCC 744 again
observed that mere use of word "may" or
"shall" is not conclusive and it has to be
decided according to the object and scheme
of the Act and the contest and back ground
against which the word has been used.

16. Therefore, from the above
judgments of the Apex Court, it is apparent
that on the basis of mere word "may" or
"shall", it cannot be conclusively held that
"may" means directory and "shall" denotes
mandatory provision rather it depends
upon various factors, namely, object and
scheme of the Act, the context and
background against which the word "may"
and "shall" has used and purpose and
advantageous sought to be achieved by
using these words.

17. No doubt, in Section 204(2)
Cr.P.C. the word "shall" has been used by
legislature but whether word 'shall' used in
section 204(2) Cr.P.C. is mandatory or
directory it can be decided only after
considering the legislative intent coupled
with the fact that whether any prejudice
was caused to the accused by its violation.
If any prejudice can be caused to accused
by violation of section 204(2) Cr.P.C. then
the provision is mandatory.

18. The legislative intent behind
the provision of section 204(2) Cr.P.C. is
only to provide the list of witnesses to the
accused so as he can effectively defend
himself during trial and this requirement
can
very
well
be
fulfilled
by
the
complainant at the time of appearance of
accused before the trial court pursuant to
the summons issued to him. Therefore, from
the legislative intent provision of Section
204(2) Cr.P.C. appears to be non-
mandatory.

19. Further, as complainant can
provide the list of the witnesses to the
accused at the time of his appearance
before the trial court, therefore, it can not
be said that non-compliance of the
provisions of Section 204(2) Cr.P.C. causes
prejudice to him as after obtaining the
list of witnesses from complainant accused
can effectively defend himself during trial.
Therefore, from this angle too provision of
Section 204(2) Cr.P.C. appears to be
directory in nature.

20. The Apex Court in the case
ofRosy and another Vs. State of Kerela,
reported in 2000 (2) SCC 230 in para-20
deduced certain principles with regard to
Sections 200, 202 and 204 Cr.P.C. as
under:

"20. Hence, what emerges from
the above discussion is :

I.
(a)
Under
Section
200
Magistrate
has
jurisdiction
to
take
cognizance of an offence oa the complaint
after examining upon oath the complainant
and the witnesses present;

(b) When the complaint is made
in writing by a public servant acting or
9 All. Ajay Kumar & Ors. Vs. State of U.P. & Anr.
423
purporting to act in discharge of his official
duties, the Magistrate need not examine the
complainant and the witnesses.

(c) In such case Court may issue
process or dismiss the complaint.

II. (a) The Magistrate instead of
following the procedure stated above may,
if he thinks fit, postpone the issue of
process and hold inquiry for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the person
ac-cused. Such inquiry can be held by him
or by the police officer or by other person
authorised by him.

(b) However, where it appears
to the Magistrate that the offence
complained of is triable exclusively by
the court of Sessions, the direction of
investigation by the police officer is not
permissible and he is required to hold
inquiry by himself. During that inquiry
he may decide to examine the witnesses
on oath. At that stage, proviso further
gives mandatory directions that he shall
call upon the complainant to produce all
his witnesses and examine them on oath.
The reason obviously is that in a private
complaint, which is required to be
committed to the Sessions Court for
trial, it would safeguard the interest of
the accused and he would not be taken
by surprise at the time of trial and it
would reveal the version of the witnesses
whose list is required to be filed by
complainant under Section 204 (2)
before issuance of the process,

(c) The irregularity or noncompliance thereof would not vitiate the
further proceeding in all cases. A person
complaining of such irregularity should
raise objection at the earliest stage and
he should point out how prejudice is
caused or is likely to be caused by not
following the proviso. if he fails to raise
such objection at the earliest stage. he is
precluded from raising such objection
later."

21. From the perusal of the
above judgment of the Apex Court it is
undoubtedly
clear
that
mere
noncompliance of the provisions of Section
204(2) Cr.P.C. would not vitiate further
proceedings unless and until prejudice is
caused or likely to be caused by not
following the provisions."

8. From the perusal of aforesaid
judgement of this Court in the case of Moti
Lal (supra) which judgement has been
passed after considering the judgement of
Hon'ble Supreme Court in the case of Rosy
(supra)
it
emerges
that
mere
noncompliance of provisions of Section 204(2)
Cr.P.C.
would
not
vitiate
further
proceedings unless and until prejudice is
caused in not following the provisions.

9. A perusal of the application filed
by the applicants would indicate the
applicants have failed to indicate prejudice
that has either been caused or likely to be
caused by not following the provisions of
Section 204(2) Cr.P.C.

10. Further the provisions of Section
204(2) Cr.P.C. are only directory and thus
unless prejudice is shown by the applicants
simply on the basis of non-compliance of
the
aforesaid
provisions
neither
proceedings pending against the applicants
can be said to be vitiated nor summoning
order can be quashed.

11. Keeping in view the aforesaid
discussion, no case for interference is made
out.

12. Accordingly, the application is
dismissed.
---------
424 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 9 ILRA 424
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 9112 of 2019

Smt. Neha Tripathi @ Neha ...Applicant
 Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Pradeep Kumar Singh, Santosh Kumar
Upadhyay

Counsel for the Opposite Parties:
Dhirendra Singh, Dinesh Kumar Maurya,
G.A.

Criminal Law - Indian Penal Code,
1860-
Section
498-A-Criminal
Procedure Code, 1973 - Section 482 -
Quashing of proceedings - Scope of
Section 498-A Indian Penal Code and
The Dowry Prohibition Act, 1961 -
Malicious Prosecution - The applicant is a
friend of the coM.P.lainant's husband,-seeks
the quashing of the entire proceedings -she
was neither the husband nor a relative of the
husband of the coM.P.lainant- the applicant
was allegedly iM.P.licated solely based on
call details- showing conversations with the
coM.P.lainant's husband who was a former
classmate-only the husband or his relatives
can be charged for subjecting a woman to
cruelty-no
evidence
to
show
that
the
applicant conspired with the husband of the
coM.P.lainant to cause harm or to further
any unlawful object, such as facilitating
divorce or cruelty- unnecessarily iM.P.licated
due to the coM.P.lainant's suspicion about an
illicit relationship-which was not supported
by any evidence of wrongful conduct.-the
prosecution
against
the
applicant
is
malicious, proceedings quashed.

Application allowed. (E-9)
(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Shri Rishabh Kumar Pandey
holding brief of Shri Santosh Kumar
Upadhyay,
learned
counsel
for
the
applicant, Shri Ramesh Chand Yadav,
learned counsel for the opposite party no. 3
and Shri Kamlesh Kumar Tripathi, learned
A.G.A. for the State.

2. The instant application under
section 482 Cr.P.C. has been filed seeking
quashing of the entire proceedings of
Criminal Case No. 11843 of 2018 (State of
U.P. Vs. Naveen Kumar Verma and others
) arising out of Case Crime No. 490 of
2017 under section 498-A, 506, 120-B
I.P.C. and 3/4 of Dowry Prohibition Act,
1961 (in short, 'the D.P. Act'), Police
Station- Civil Lines District Allahabad,
pending in the court of Chief Judicial
Magistrate, Allahabad as well as charge
sheet No. 134 of 2018 dated 30.6.2018.

3. Learned counsel for the applicant
submitted that no offence, whatsoever can
be said to have been made out against the
applicant herein as for the offence under
section 498-A I.P.C., the accused must be
either husband or relative of the husband of
the victim. The applicant herein is neither
the husband nor the relative of the husband
of the opposite party no. 3, therefore, she is
not covered within the provisions of section
498-A I.P.C. and no offence whatsoever
can be said to have been made out against
the applicant herein. Similarly no offence
under section 3/4 of D.P. Act can be said to
have been made out against the applicant as
she is not a family member or remote
family member of the husband of the
opposite party no. 3. It is further submitted
that though the applicant herein has been
implicated in the instant case only on the