# Amit Kumar v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** Criminal Misc. Writ Petition No. 20280 of 2013
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-v-state-of-u-p-anr-51600
- **Pages:** 6

## Headnote

Criminal Law -Code of Criminal Procedure,
1973 - Sections 200, 202(2) & 204 -
Constitution of India,1950 - Article 227-
Petitioner challenged the summoning order
dated 24.05.2013 by Chief Judicial Magistrate,
Orai, under Sections 307, 504, 506 IPC, and its
affirmation by Sessions Judge, Jalaun, on
21.09.2013 in Criminal Revision No. 147/2013.
FIR (Case Crime No. 1005/2002) alleged
petitioner
and
two
others
attacked
the
complainant's brother, with one co-accused
firing, causing a firearm injury. Final report
deemed the incident doubtful, but the protest
petition, treated as a complaint, led to
summoning after examining the complainant
(Section 200) and three witnesses (Section
202). Court held that Section 202(2) mandates
examining all witnesses in sessions triable
cases, and failure to summon the doctor who
examined the injury was a violation, critical for
assessing
Section
307
IPC
applicability.
Magistrate's casual approach lacked "prima facie
satisfaction" as per Fiona Shrikhande Vs St. of
Maharashtra, (2013) 14 SCC 44, and Dr. Divya
Nand Yadav Vs St. of U.P., 2023 AHC 9188.
Impugned orders set aside; matter remanded
for fresh order in compliance with Section
202(2). Petition treated under Article 227 per
Radhey Shyam Vs Chhabi Nath, (2015) 5 SCC

## Text

1724 INDIAN LAW REPORTS ALLAHABAD SERIES
reports to claim substandard drugs of
standard quality; therefore, on perusal of
the contents of the impugned FIR, the
ingredients of commission of cognizable
offence are prima- facie made out.

23. The allegations made in the
impugned FIR, in our considered opinion,
do clearly constitute a cognizable offence
justifying the registration of a case and the
investigation thereon, and this does not fall
under any of the categories of cases
formulated by the Supreme Court in State
of Haryana v. Bhajan Lal16, calling for the
exercise of extraordinary or inherent
powers of the High Court to quash the
impugned FIR. Otherwise also, it is not the
case of the petitioners that even if the
allegations made in the FIR/complaint, is
taken at their face value and-accepted in
their entirety, do not prima facie constitute
any offence or make out a case, against the
accused. The petitioners have also not
pleaded any express bar engrafted in any
provisions of the Code or any other law,
including the Drugs and Cosmetics Act, to
the institutions and continuance of the
proceedings.

24. Therefore, the petition is devoid
of merits, and hence dismissed, at this
stage.
----------
(2024) 3 ILRA 1724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Writ Petition No. 20280 of 2013

Amit Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents
Counsel for the Petitioner:
Sri Ali Hasan, Sri Hariom Tiwari, Sri Ishtiyak
Ahmad

Counsel for the Respondents:
G.A., Sri Ashok Singh, Sri B.N. Singh

Criminal Law -Code of Criminal Procedure,
1973 - Sections 200, 202(2) & 204 -
Constitution of India,1950 - Article 227-
Petitioner challenged the summoning order
dated 24.05.2013 by Chief Judicial Magistrate,
Orai, under Sections 307, 504, 506 IPC, and its
affirmation by Sessions Judge, Jalaun, on
21.09.2013 in Criminal Revision No. 147/2013.
FIR (Case Crime No. 1005/2002) alleged
petitioner
and
two
others
attacked
the
complainant's brother, with one co-accused
firing, causing a firearm injury. Final report
deemed the incident doubtful, but the protest
petition, treated as a complaint, led to
summoning after examining the complainant
(Section 200) and three witnesses (Section
202). Court held that Section 202(2) mandates
examining all witnesses in sessions triable
cases, and failure to summon the doctor who
examined the injury was a violation, critical for
assessing
Section
307
IPC
applicability.
Magistrate's casual approach lacked "prima facie
satisfaction" as per Fiona Shrikhande Vs St. of
Maharashtra, (2013) 14 SCC 44, and Dr. Divya
Nand Yadav Vs St. of U.P., 2023 AHC 9188.
Impugned orders set aside; matter remanded
for fresh order in compliance with Section
202(2). Petition treated under Article 227 per
Radhey Shyam Vs Chhabi Nath, (2015) 5 SCC
423.

Petition Allowed.

Case Law Cited:

1. Radhey Shyam Vs Chhabi Nath, (2015) 5 SCC
423 (Para 4)

2. Fiona Shrikhande Vs St. of Maharashtra,
(2013) 14 SCC 44 (Para 9)

3. Dr. Divya Nand Yadav Vs St. of U.P., Criminal
Appeal No. 9188/2022, decided on 20.04.2023
(Paras
9,
10)
3 All. Amit Kumar Vs. State of U.P. & Anr.
1725
4. Smt. Gudiya Vs St. of U.P., 2023 AHC 238320
(Para 11)

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.,)

1. Heard Sri Ishtiyak Ahmad, learned
Advocate holding brief for Sri Ali Hasan,
learned counsel for the petitioner and Sri
S.C. Mishra, learned AGA for the State.

2. This writ petition has been filed by
the petitioner-Amit Kumar with a prayer to
issue a writ, order or direction in the nature
of certiorari for quashing the judgment and
order dated 21.09.2013 passed by learned
Sessions Judge, Jalaun at Orai in Criminal
Revision No. 147 of 2013 (Amit Kumar Vs
State of U.P. and Another) by which the
learned Judge has rejected the revision of
the petitioner, which was preferred against
the order dated 24.05.2013, passed by
learned Chief Judicial Magistrate, Orai in
Criminal
Case
No.
1277
of
2013
(Shatrughan Singh Vs. Ajay Kumar and
Others) under Sections 307, 504, 506 IPC,
Police Station Kotwali Orai, District
Jalaun.

3. Relevant facts are as below:-

• An FIR case crime no. 1005 of
2002 under sections 307, 504 and 506 IPC,
naming
three
persons
including
the
petitioner-Amit Kumar was lodged by
Shatrughan Singh, alleging that three
persons lay in wait and attacked his
brother Satyabhan Singh when he went to
attend call of the nature at about 3:15 am
on 28.11.2001; all the three were holding
firearms, one of them Ajai Kumar Sharma
fired at him which hit on his right side
below the shoulder; seriously injured he
fell down; on his cries, the first informant
and other members of his family reached
the spot to save him but the accused
persons escaped, extending threats to his
life.

• After the investigation, the
investigating officer submitted a final
report with the opinion that the incident
was doubtful and that the accused persons
were falsely named.

• The first informant moved a
protest petition which was treated as
complaint; the informant/the complainant
was examined under section 200 Cr.P.C.;
certain witnesses namely, the injuredSatyabhan as PW-1, Ranbir Singh as PW-2
and Mohit as PW-3, were examined under
section 202 Cr.P.C.

• The C.J.M. thereafter proceeded
to summon Amit Kumar and Arvind Kumar
Sharma for offence under Sections 307,
504,
506
IPC
by
an
order
dated
24.05.2013.

• The accused preferred Criminal
Revision No. 147 of 2013, which was
decided by the Session Judge, Jalaun at
Orai by on order dated 21.09.2013,
whereby the order passed by the Court of
C.J.M. was affirmed and revision rejected.

• Now one of the accused Amit
Kumar is before this Court, invoking writ
jurisdiction under Article 226 of the
Constitution and has challenged both the
aforesaid orders.

4. Very first objection from the
opposite side is that the petitioner has filed
Misc. Writ Petition under Article 226 of the
Constitution, instead he should have filed
Misc. Writ Petition under Article 227 of the
Constitution. On the above issue, I prefer to
place reliance on the judgment of the
Supreme Court in Radhey Shyam and
another vs. Chhabi Nath and others,
(2015) 5 SCC 423. In the above noted case,
the Supreme Court has clearly laid down
that order of judicial court could be
1726 INDIAN LAW REPORTS ALLAHABAD SERIES
challenged under Article 227 of the
Constitution of India and not under original
writ jurisdiction under Article 226 of the
Constitution of India. In my opinion, there
is no legal hindrance in converting the
petition under Article 226 to one under
Article 227 of the Constitution. I, therefore,
treat this petition as one under Article 227
of the Constitution. The registry shall
assign appropriate number accordingly.

5. The contention of the petitioner is
that at the time of the incident, he was on
duty and therefore the investigating officer
submitted a final report on 17.01.2002; the
allegation in the FIR is that at about 3:15
am on 28.11.2001, three persons attacked
the injured and only one of them i.e., Ajai
Kumar Sharma (who is not the petitioner in
the instant petition) actually fired on
Satyabhan;
Admittedly,
Satyabhan
sustained a single firearm injury, through
and through over his right arm. The
forceful contention of the petitioner is that
his name has been dragged in the FIR
falsely and that no case against him is made
out in view of the facts that there was a
single injury and the role of fire has been
assigned to one Ajai Kumar Sharma only
but said Ajai Kumar Sharma, who was
named (and was assigned main role) was
never summoned and the only other coaccused Arvind Kumar Sharma has died.
Further submission is that in fact it is the
first informant-Satrughan Singh @ Pappu
Singh, who had murdered Arvind Kumar
Sharma. And FIR case crime no. 641 of
2006 under sections 364 and 302 IPC has
been registered against the first informant;
he has also been chargesheeted. Argument
is that the learned C.J.M. did not consider
the evidence on record and passed an
arbitrary order, which is not sustainable in
the eyes of law. The learned Court of
revision too, did not notice the relevant
facts and circumstances and agreed with
the view taken by the C.J.M., in a most
mechanical way and declined to interfere,
hence the petitioner has no remedy except
to invoke powers under Article 226/227 of
the Constitution.

6. Admittedly, the protest petition has
been treated as a complaint. In the protest
petition, the first informant named Ranbir
Singh and Mohit Singh as the witnesses,
who came on the spot and identified the
accused persons. It is also alleged in the
protest petition that the co-accused-Ajai
Kumar Sharma did not pay the price of the
articles transferred on his assurance,
therefore there has been a dispute between
him and the injured on this issue. The Court
while treating the protest as complaint,
called upon the complainant to produce his
witness under section 202 Cr.P.C. The
witnesses of fact i.e., PW1-Satyabhan (the
injured), PW2-Ranbir Singh (the alleged
eye-witness)
and
PW3-Mohit
Singh
(another eye-witness), were examined. The
learned trial court took a view that at the
stage of summoning only, a prima facie
case has to be established and that there is
no need to examine rest of the witnesses.
And passed summoning order against
Arvind Kumar and instant petitioner under
sections 307, 504, 506 IPC.

7. In this session triable case only
three witnesses of fact have been examined
at the stage of inquiry before summoning.
Admittedly, the doctor who examined the
injured has not been summoned and
examined under section 202 Cr.P.C. It is
relevant to reproduce Section 202(2)
Cr.P.C. here which is as below:-

"(2) In an inquiry under subsection (1), the Magistrate may, if he
3 All. Amit Kumar Vs. State of U.P. & Anr.
1727
thinks fit, take evidence of witnesses on
oath :

Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session,
he
shall
call
upon
the
complainant to produce all his witnesses
and examine them on oath."

Section 202(2) Cr.P.C. enjoins the
Magistrate to call upon the complainant to
produce all of his witnesses and examine
them on oath. It appears that the Magistrate
did not find necessary to call upon the
complainant to examine all his witnesses
on a premise that for establishing a prima
facie case, there is no need to examine all
the witnesses.

8. A moot question is what is a prima
facie case and when it can be said to have
been made out before a Magistrate
proceeds to summon an accused.

9. This Court in its judgment in
Criminal Appeal No. 9188 of 2022 (Dr.
Divya Nand Yadav and Another vs. State
of U.P. and Another) decided on
20.04.2023 observed in para no. 10 as
below:-

"10.
There
cannot
be
two
opinions on the settled legal position that
the Magistrate has to decide whether
prima facie any case is made out or not,
before proceeding to summon the accused
persons. The meaning of prima facie case
must
be
understood
in
the
right
perspective. There may be cases where the
Magistrate finds that in literal sense of the
words occurring in the statements the
ingredients of an offence are there but he
feels not so satisfied with them. The
Hon'ble Supreme Court in para-11 of the
judgment passed in Fiona Shrikhande vs.
State of Maharashtra and Another; (2013)
14 SCC 44, observed as below:-

"At the complaint stage, the
Magistrate is merely concerned with the
allegations made out in the complaint and
has only to "prima facie satisfy" whether
there are "sufficient grounds to proceed"
against the accused and it is not the
province of the Magistrate to enquire into a
detailed discussion on the merits or
demerits of the case. The scope of enquiry
under Section 202 is extremely limited in
the sense that the Magistrate, at this stage,
is expected to examine prima facie the truth
or falsehood of the allegations made in the
complaint."

The Supreme Court has used the
pharse
arriving
at
"prima
facie
satisfaction" whether there are "sufficient
grounds to proceed"! Section 204 Cr.P.C.
nowhere said that the Magistrate shall
take cognizance and summon the accused
if prima facie case is made out, instead
Section
204
Cr.P.C.
says
that
the
Magistrate may take cognizance if there is
sufficient ground for proceeding, hence in
my view the prima facie case must be
construed
to
mean
"prima
facie
satisfaction" arrived at by the Magistrate.
In other words the Magistrate shall proceed
only if he finds that there is sufficient
ground for the same. This is not to say that
the proposed accused shall have any right
to be heard at that stage or that any
evidence in defence can be considered. It
merely means that the Magistrate shall
assess all the material before it and apply
its mind to find out whether time has come
to proceed and take cognizance. In that
view of the matter the Supreme Court in the
case as aforesaid has instead of using the
word "prima facie case" has found fit to use
the phrase "prima facie satisfaction" and of
course this satisfaction has to be arrived at
1728 INDIAN LAW REPORTS ALLAHABAD SERIES
while acting within the four corners of law
i.e., by adopting the procedure as provided
under Sections 200 and 202 Cr.P.C. In my
view, the Magistrate is not powerless to
examine the truth or falsehood of the case
made in the complaint. And to fully utilize
this power the Magistrate has to play its
role of examining himself the complaint
and his witnesses under Sections 200
Cr.P.C., and if required to further inquire
into by calling more witnesses and
examining them or even by ordering
investigation. The steering wheel of the
inquiry cannot be left at the hands of the
complainant. For the reason that at that
stage, the accused has no say in the matter
and the court has no opportunity to hear
the other side, therefore he ought to remain
very cautious, circumspect and alert. The
broad probabilities or improbabilities of
the story of course may be seen at this
stage.

The Court further observed in para no.
14 as below:-

"14. The fact of the matter is
that the court shall not proceed in a
mechanical or a routine manner. It shall
apply its mind, which is called a judicial
mind and discretion as well. The court/the
Magistrate, though shall not go deep into
the evidence given and shall not weigh the
evidentiary value in a meticulous manner.
Except this rider, there is no other
obstacles before the court below for
arriving at the "prima facie satisfaction"
a word which can be equated with the
word "prima facie case".

10. The purpose of holding inquiry as
envisaged under section 202 Cr.P.C. is to
look for sufficient ground to proceed. The
words "prima facie satisfaction" stands in
equilibrium with "sufficient ground to
proceed" and the terms are broadly
interchangeable, as far as summoning of
the accused persons is concerned.

11. While considering the provisions
of law under section 202(2) Cr.P.C., this
Court in Smt. Gudiya vs. State Of U.P. And
5 Others 2023:AHC:238320, held that
ordinarily in a case exclusively triable by
the Sessions Court, the complainant has to
produce all the witnesses. In case he is
unable to produce any of the witnesses on
the premise that such witnesses are not
under his command or are not his witnesses
even then the Magistrate who is conducting
the inquiry, may summon those witnesses
for the purpose of recording his "prima
facie
satisfaction"
with
regard
to
summoning of the accused.

The Court in Smt. Gudiya case
(supra) observed in para nos. 11 and 12 as
below:-

"11. A question may arise that in
case the complainant for some reason,
whether justifiable or not so justifiable,
either cannot produce its witness or
deliberately withholds any of them, then
what course is available to the Magistrate,
who is conducting an 'inquiry'. Can he be
left at the mercy of the complainant?
There
may
be
instances
where
a
Magistrate may find that something more
is required before he can record his
'prima facie satisfaction' with regard to
summoning of the accused.

12. Moreover, a situation may
arise where in a genuine case put before
the court, the complainant is helpless in
producing even 'his witness' for some
extraneous reason. In such a situation
definitely he has an option to apply to the
court for summoning those witnesses,
which he cannot produce himself."
3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1729

12. The powers of the inquiry court
are not fettered in any manner and it may
call the witnesses, if in its view their
evidence may prove useful for just decision
in the matter for the purpose of summoning
the accused persons.

13. In the instant matter, the learned
trial court as well as the court of revision,
ignored the important provisions of law
under section 202(2) Cr.P.C. The approach
of the Courts was casual and cavalier. Even
the doctor who had examined the injured
was not summoned. His examination was,
quite important to draw an inference
whether prima facie an offence under
section 307 IPC is made out against the
accused persons. Any summoning order
passed ignoring the mandatory provisions
of law is vulnerable and is liable to be setaside.

14. In view of the above, the petition
is allowed. The impugned orders are setaside. The matter is remanded back to the
trial court concerned for passing a fresh
order in accordance with law.
----------
(2024) 3 ILRA 1729
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal from Order No. 226 of 2024
with
First Appeal from Order No. 227 of 2024

C/M Anjuman Intezamia Masajid Varanasi
 ...Appellant
Versus
Shailendra Kumar Pathak & Anr.
 ...Respondents
Counsel for the Appellants:
Sri Syed Ahmed Faizan, Sri Zaheer Asghar
Counsel for the Respondents:
Sri Prabhash Pandey, Sri Pradeep Kumar
Sharma, Sri Vineet Sankalp

Civil Law - Civil Procedure Code, 1908 -
Order XL Rule 1, Sections 151 & 152 -
Appointment
of
Receiver
-
Interlocutory
Mandatory Injunction - Appeals under Order
XLIII Rule 1(s) challenging orders dated
17.01.2024 and 31.01.2024 appointing District
Magistrate, Varanasi as Receiver for Vyas Ji
Tehkhana (cellar) and directing worship/rituals -
Held, appointment of Receiver justified as
plaintiff established strong prima facie case of
possession by Vyas family since 1551, supported
by map in Din Mohammad case (1937) and
Commissioner's report (1996) - No evidence of
appellant's possession - Order dated 31.01.2024
correcting omission of relief (b) valid under
Sections 151/152 CPC, rectifying accidental slip
(actus curiae neminem gravabit) - Interlocutory
mandatory
injunction
to
restore
worship
(stopped in 1993) upheld, restoring status quo
ante, not final relief - No clash of interest in
District Magistrate's role as Receiver and exofficio member of Kashi Vishwanath Trust Board
- Pleas of limitation, res judicata, and nonjoinder/mis-joinder premature without written
St.ment or framed issues - Dorab Cawasji
Warden guidelines satisfied . (Para 61-165)

Appeals dismissed.

List of Cases Cited:

1. Dorab Cawasji Warden Vs Coomi Sorab
Warden, (1990) 2 SCC 117

2. T. Krishnaswamy Chetty Vs C. Thangavelu
Chetty, AIR 1955 Mad 430

3. Dwaraka Das Vs St. of M.P., (1999) 3 SCC 500

4. Niyamat Ali Molla Vs Sonargon Housing
Cooperative Society Ltd., (2007) 13 SCC 421

5. Vareed Jacob Vs Sosamma Geevarghese,
(2004) 6 SCC 378

6. Satyanarayan Banerji Vs Kalyani Prosad Singh
Deo Bahadur, AIR 1945 Cal 387