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

- **Citation:** (2024) 4 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** Application U/S 482. No. 27063 of 2023
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anshul-kumar-v-state-of-u-p-anr-51846
- **Pages:** 8

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-Section
482-
Indian
Penal Code,1860 - Sections 376, 377,
393, 504, 506, 323, 427 - Quashing of
Charge-Sheet and Cognizance Order Denied -
The applicant sought to quash the charge-sheet
dated 25.05.2023 and cognizance order dated
05.06.2023 in Criminal Case No. 46985 of 2023
under Sections 376, 377, 393, 504, 506, 323,
427 IPC - Held, a prima facie case of rape and
related offences was established based on the
allegations and Section 164 CrPC Statement,
warranting trial and not quashing. (Paras 2, 15,
16)

B. Section 376 IPC - Rape on False
Promise of Marriage - The opposite party no.
2 alleged that the applicant, a police officer,
forcibly
raped
her
after
administering
a
contaminated cold drink and maintained a
physical relationship under a false promise of
marriage - Held, as per Shambhu Kharwar, a
false promise of marriage known to be false
from inception vitiates consent, making out a
prima facie case of rape. (Paras 9, 14, 15, 16)

C. Abuse of Position by Police Officer - The
applicant, as the Investigating Officer in a prior
case, allegedly exploited his authority to coerce
the opposite party no. 2 into a physical
relationship - Held, the misuse of official
position to exploit the victim strengthens the
prima facie case against the applicant. (Paras
13, 16)

D. Previous FIR and Final Report - The opposite
party no. 2 had lodged a prior FIR (Case Crime
No. 392 of 2022) against the applicant, which
704 INDIAN LAW REPORTS ALLAHABAD SERIES
ended in a final report due to her coerced
Section 164 CrPC Statement - Held, her
explanation of coercion and false promises by
the applicant justifies the fresh FIR, and the
issue requires trial adjudication. (Paras 5, 6, 9,
16)

E. Consensual Relationship Defence Rejected -
The applicant claimed the relationship was
consensual and the opposite party no. 2 was
aware of his marital status - Held, the
allegations
of
initial
forcible
rape
and
subsequent false promise of marriage negate
the consensual relationship defence, as per
Vinod Kumar and Jiyaullah, requiring trial to
ascertain facts. (Paras 11, 15, 16)

Application Dismissed.

List of Cases cited:

## Text

4 All. Anshul Kumar Vs. State of U.P. & Anr.
703
posted the matter for framing charge,
without giving any opportunity of hearing
on the point of charge to the accusedapplicant. As the legal points raised by the
accused-applicants have not been decided by
the sessions court, it will not be proper for
this Court to enter into merits of the
arguments advanced by the learned counsels
for the parties. It will be just and proper to
direct the trial court i.e. the concerned court
of sessions where cases are pending to
consider all the legal aspects and the legal
objections, raised by the accused-applicants,
provide them opportunity for hearing on the
point of charge and then pass an appropriate
order in accordance with the provisions of
law.

9. From the aforesaid discussion it is
clear that order dated 18.01.2020 is not
sustainable in the eye of law and liable to be
quashed.

10. The application under section 482
Cr.P.C. is hereby partly allowed only in
respect
of
quashing
the
order
dated
18.01.2020 passed by the Additional Sessions
Judge,
Court
No.6,
Gorakhpur.
The
applicants may move a fresh application
within 15 days after obtaining a certified
copy, raising all their legal objections and
legal points against the prosecution and may
also pray for discharge. The sessions court
after providing opportunity of hearing to both
the parties will dispose of the same with a
reasoned order in accordances with the
provisions of law, within one month from the
date of filing of the such applications before
it.
----------
(2024) 4 ILRA 703
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2024

BEFORE
THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 27063 of 2023

Anshul Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gulab Chandra, Sri Rupesh Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Satish Kumar Tyagi

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-Section
482-
Indian
Penal Code,1860 - Sections 376, 377,
393, 504, 506, 323, 427 - Quashing of
Charge-Sheet and Cognizance Order Denied -
The applicant sought to quash the charge-sheet
dated 25.05.2023 and cognizance order dated
05.06.2023 in Criminal Case No. 46985 of 2023
under Sections 376, 377, 393, 504, 506, 323,
427 IPC - Held, a prima facie case of rape and
related offences was established based on the
allegations and Section 164 CrPC Statement,
warranting trial and not quashing. (Paras 2, 15,
16)

B. Section 376 IPC - Rape on False
Promise of Marriage - The opposite party no.
2 alleged that the applicant, a police officer,
forcibly
raped
her
after
administering
a
contaminated cold drink and maintained a
physical relationship under a false promise of
marriage - Held, as per Shambhu Kharwar, a
false promise of marriage known to be false
from inception vitiates consent, making out a
prima facie case of rape. (Paras 9, 14, 15, 16)

C. Abuse of Position by Police Officer - The
applicant, as the Investigating Officer in a prior
case, allegedly exploited his authority to coerce
the opposite party no. 2 into a physical
relationship - Held, the misuse of official
position to exploit the victim strengthens the
prima facie case against the applicant. (Paras
13, 16)

D. Previous FIR and Final Report - The opposite
party no. 2 had lodged a prior FIR (Case Crime
No. 392 of 2022) against the applicant, which
704 INDIAN LAW REPORTS ALLAHABAD SERIES
ended in a final report due to her coerced
Section 164 CrPC Statement - Held, her
explanation of coercion and false promises by
the applicant justifies the fresh FIR, and the
issue requires trial adjudication. (Paras 5, 6, 9,
16)

E. Consensual Relationship Defence Rejected -
The applicant claimed the relationship was
consensual and the opposite party no. 2 was
aware of his marital status - Held, the
allegations
of
initial
forcible
rape
and
subsequent false promise of marriage negate
the consensual relationship defence, as per
Vinod Kumar and Jiyaullah, requiring trial to
ascertain facts. (Paras 11, 15, 16)

Application Dismissed.

List of Cases cited:

1. Vinod Kumar Vs St. of Kerala, (2014) 5 SCC
678

2. Shambhu Kharwar Vs St. of U.P., 2022 SCC
Online

3. Vineet Kumar Vs St. of U.P., (2017) 13 SCC
369

4. Jiyaullah Vs St. of U.P., [2023 (10) ADJ 438]

5. St. of Har. Vs Bhajan Lal, 1992 Supp (1) SCC
335

6. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maharashtra, 2021 SCC OnLine SC 315

7. R.P. Kapur Vs St. of Punj., AIR 1960 SC 866

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Gulab Chandra, learned
counsel for the applicant, Sri Satish Kumar
Tyagi, learned counsel for the opposite
party no.2 and Sri Vibhav Anand, learned
A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the charge-sheet no.01 of 2023
dated 25.05.2023 as well as impugned
cognizance order dated 05.06.2023 and
entire criminal proceedings in Criminal
Case No.46985 of 2023 (State of U.P. vs.
Anshul Kumar), arising out of Case Crime
No.0109 of 2023 u/S 376, 377, 393, 504,
506, 323, 427 I.P.C., P.S.- Madhuban
Bapudham, District- Ghaziabad, pending in
the court of learned Additional Chief
Judicial Magistrate, .

3. The brief facts of the case are that
the opposite party no.2, Shivani Dube, was
previously married with one Prashant
Sharma. She obtained divorce by mutual
consent from said Prashant Sharma on
22.09.2020. Subsequently, the opposite
party no.2 had lodged an F.I.R. under
Sections 507, 376, 504, 508, 420 and 406
I.P.C. being Case Crime No. 31 of 2022 on
22.01.2022. In the said F.I.R. which was
registered by the opposite party no.2
against the said Jishan Hashim, the
applicant herein was the Investigation
Officer (IO). During the investigation of
the said F.I.R. against Jishan Hashim, the
opposite party no.2 came in contact with
the applicant herein. In the meantime on
27.03.2022
the
applicant
herein
has
prepared the charge-sheet against the said
Jishan Hashim, which was forwarded on
19.04.2022.

4. Subsequently, on 26.04.2022, the
opposite party no.2 lodged an N.C.R.
against Amita Rani (the wife of the
applicant herein), her brother (Rajat) and
her two sisters (Vimal and Mrs. Rakam
Singh). Subsequently, on 13.06.2022, the
opposite party no.2 allegedly submitted an
application to the Station House Officer
(S.H.O.), P.S. - Link Road, District-
Ghaziabad, stating that she doesn't want
any action on the N.C.R. No. 18 of 2022
4 All. Anshul Kumar Vs. State of U.P. & Anr.
705
dated 26.04.2022, registered by her against
Amita Rani and her other relatives. Since,
the opposite party no.2 used to visit the
house of the applicant herein in connection
of her case against Jishan Hashim, the said
Amita Rani had developed suspicion over
her and there was some altercation with
Amita Rani and she has further stated in
her application that she had filed this
N.C.R. to create a pressure on the applicant
herein, so that the applicant may take
stringent action in the F.I.R. registered
against Jishan Hashim. In the said case,
Jishan Hashim was granted bail on
11.07.2022.

5. Thereafter, on 15.10.2022, the
opposite party no.2 herein had lodged an
F.I.R. being Case Crime No. 392 of 2022
against the applicant herein, alleging that
when the applicant herein was the Beat
Incharge at Surya Nagar, Ghaziabad, she
came in his contact in connection to her
case wherein the applicant was the IO.
During the investigation, the applicant had
proposed her to which the opposite party
no.2 did not agree and on 05.01.2022, she
had made a call to the Women Cell and
complained
about
the
applicant.
Subsequently, she was afraid as it was her
first case and the applicant used to take her
on lonely places. Slowly, he made her to
believe that he will take divorce from his
wife and today when, as per his promise, he
did not come, then she went to his house
where he had abused her, broken her phone
and beaten her with fist. She further stated
that on the promise of marriage, the
applicant had made physical relations with
her at Hotel Country Inn Red - Kvelvet,
Ghaziabad, due to which she became
pregnant and after the confirmation of
pregnancy at Max Hospital, Vaishali.
Subsequently, her pregnancy was aborted
between 24-27, March. She further stated
in the F.I.R. that the applicant is such an
officer who promises to marry and then
breaks his own promise, therefore, strict
action be taken against such officer. During
the investigation in the instant F.I.R., the
opposite party no.2 refused to undergo the
medical examination on 15.10.2022 itself.
Subsequently, her statement under Section
164 Cr.P.C. was recorded and she has
stated that during the investigation of the
case lodged by her against the said Jishan
Hashim, she came in contact with the
applicant and both have developed a good
friendly relationship with each other and
due to some altercation she had lodged this
false F.I.R. against the applicant herein. On
the basis of such statement under Section
164 Cr.P.C., the final report in Case Crime
No. 392 of 2022 was submitted by the
Investigation Officer in the instant case on
02.12.2022
and
vide
order
dated
12.12.2022, the said final report was
accepted by the court below as same was
admitted by the applicant herself before the
court.

6. Subsequent thereto, the opposite
party no.2 filed an application under
Section 156 (3) Cr.P.C. alleging that earlier
she had lodged an F.I.R. being Case Crime
No. 392 of 2022 against the applicant
herein, wherein, the entire details have
been given. Subsequent to lodging of the
said F.I.R., the applicant herein had another
chance to correct his mistake and as per the
promise he again assured the opposite party
no.2 that he will take divorce from his wife
and will marry her. Thereupon, after four
days of registration of the said F.I.R., the
applicant took the opposite party no.2 to
Hotel Country Inn Kvelvet, P.S. Kavi
Nagar,
Ghaziabad,
where
he
had
established
consensual
physical
relationship with the opposite party no.2 on
the pretext of promise of marriage from
706 INDIAN LAW REPORTS ALLAHABAD SERIES
19.10.2022
till
31.10.2022
and
subsequently,
from
01.11.2022
till
15.12.2022, he kept the opposite party no.2
in a flat which he had taken on rent. On
28.10.2022, when her statement under
Section 164 Cr.P.C., was to be recorded,
then, the applicant through her advocate
had allured her with the promise of
marriage and stated that if she will not
make statement under Section 164 Cr.P.C.
as per their advice, then, the applicant will
go to jail and life of both the applicant and
the opposite party no.2 will be spoiled.
After such assurance, he took a flat on rent
and kept the opposite party no.2 as his wife
and continued physical relationship with
her under the promise of marriage. When
the opposite party no.2 realized that he is
just trying to be good only for the purpose
of getting her statement recorded and he
has no intention to marry the opposite party
no.2 then the opposite party no.2 objected
to such relationship with the applicant,
then, the applicant assaulted the opposite
party no.2 and locked her inside the flat.
When the opposite party no.2 tried to
contact the guard then the applicant broke
the intercom telephone and also took the
phone of the opposite party no.2. When the
guard came after hearing the noise, the gate
was opened by him and he told the guard
that there are some personal disputes
between them, thereupon, the guard had
went away. Thereafter, the applicant again
assaulted the opposite party no.2 and
threaten her that if she will not follow the
instructions given by the applicant then he
will kill her. It is further alleged that her
signatures were taken on blank papers,
which were later used as affidavits in the
proceedings and with regard to the final
report being accepted by the Magistrate.

7. The said application under Section
156(3) Cr.P.C., was dismissed with the
observation that opposite party no.2 should
approach at the first instance to the senior
police officials and thereupon if no action
is taken then she can again approach the
court.

8.

In
pursuance
thereof,
she
approached the higher police official and
thereupon on 28.03.2023, the instant F.I.R.,
was registered being Case Crime No. 109
of 2023 under Sections 376, 377, 493, 504,
506, 323, 427 I.P.C.

9. After this F.I.R., on 03.04.2023 a
medical examination of the opposite party
no.2 was conducted and her statement
under Section 164 Cr.P.C. was recorded
before the trial court again wherein she has
categorically stated that she came in
contact with the applicant herein with
regard to her case when he was Beat
Incharge and the applicant used to keep her
in the Police Beat till late night for the
purpose of the investigation of the case but
due to fear she could not oppose. After
sometime, he stalle the opposite party no.2
and on 28.02.2022 when she was sitting
with the applicant in his vehicle, then, the
applicant gave her cold-drink, infiltrated
with something, therefore, she lost her
consciousness, then the applicant forcibly
raped the opposite party no.2 in his vehicle.
Subsequently, he said sorry about the same
and on 29.02.2022, he called her in his
house where again the applicant raped the
opposite party no.2. In April, 2022, the
opposite party no.2 realised that she is
pregnant then the applicant took her to the
doctor and when the doctor confirmed that
she is four weeks pregnant then abortion
pills were given and pregnancy was
aborted. Though, the applicant was married
he used to promise that everything will be
alright and on 13.10.2022 the applicant
called her in his house and then the
4 All. Anshul Kumar Vs. State of U.P. & Anr.
707
applicant assaulted her. Thereupon, she
lodged the Case Crime No. 392 of 2022
against the applicant. When her statement
under Section 164 Cr.P.C. was to be
recorded then the applicant threaten her
that if she did not come within five minutes
then he will use very bad words for her
mother. Her advocate, namely Dilshad who
was also known to the applicant, has also
told her that if she will not say what she is
instructed in her 164 Cr.P.C. statement,
then it will be very bad for her. Thereupon,
in her 164 Cr.P.C. statement she told the
falsehood. After the statement, the said
Dilshad took her to Anshul, the applicant.
Thereupon, Anshul took her to Nilaya
Greens
Tower,
Rajnagar
Extension,
Ghaziabad where they lived together and
maintain physical relationship and on
14.12.2022, when there was a date fixed in
her previous case which she has lodged
against the applicant, then, her advocate
told her to sign the attendance slip. On
12.12.2022, the said Dilshad obtained
signatures in his chamber and she could not
read such papers as she was doing some
work of her office and on 12.12.2022,
Dilshad took her to the court where he
assured that he was going to submit the
papers related to divorce of Anshul where
she heard something like FR, but she did
not know what FR means, therefore, she
signed it and on 16.12.2022, Anshul came
to her in a drunkard position then abused
and assaulted the opposite party no.2 and
then she called the guard, the guard came
but when the applicant told the guard that
nothing had happened then the guard went
away. Again, the applicant tried to have
anal sex with her and raped her and since
thereafter from 16.12.2022, the applicant
did not come to her.

10. On the basis of this statement the
charge-sheet was filed against the applicant
herein. Thereupon, the cognizance was
taken
on
05.06.2023.
The
instant
application has been filed challenging the
charge-sheet as well as the order taking
cognizance against the applicant.

11. Learned counsel for the applicant
submits that there was a long-standing
consensual physical relationship between
the applicant and the opposite party no.2
who was a person of well understanding of
all the consequences of such relationship.
The applicant herein is a married man with
children and the opposite party no.2 was
well-aware of all the aforesaid facts.
Despite that she continued her relationship
with the applicant. Now, the opposite party
no.2 is trying to blackmail the applicant
herein for such consensual relationship and
in the earlier F.I.R. lodged by the opposite
party no.2, on her own statement under
Section 164 Cr.P.C., the final report was
filed. Thereupon, the instant F.I.R. has been
lodged. After four months of the final
report submitted in the earlier cases with
the same allegations, the said final report
was also accepted in her presence before
the court. She has not raised any objection
to the said final report before the court
concerned.
Learned
counsel
for
the
applicant further submits that the instant
F.I.R. is nothing but a counterblast to the
F.I.R. lodged by the mother of the applicant
herein against the opposite party no.2,
under the provisions of S.C./S.T. Act.
Since, the opposite party no.2 is an adult
person and it was a consensual relationship
between the applicant and the opposite
party no.2, therefore, no offence of rape is
made out against the applicant herein and
the instant case is nothing but a malicious
prosecution on behalf of the applicant.

12. Learned counsel for the the
applicant has relied upon the judgements of
708 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court in Vinod Kumar v. State of
Kerala, (2014) 5 SCC 678, Shambhu
Kharwar v. State of U.P. : 2022 SCC
Online and Vineet Kumar v. State of U.P.,
: (2017) 13 SCC 369 and the judgement of
this Court in Jiyaullah vs. State of U.P.
and Another : [2023 (10) ADJ 438].

13. Per contra, the learned A.G.A. for
the State submits that the applicant was a
Police Officer and was under obligation to
protect the opposite party no.2, who has
registered a case against Jishan Hashim and
under the garb of that investigation he had
established physical relationship by forcing
the opposite party no.2 to consume a
contaminated cold-drink, therefore, when
she become unconscious, he has committed
a forcible physical relationship with the
opposite party no.2 without her consent,
which clearly tantamounts to an offence of
rape. In the earlier F.I.R. lodged by the
opposite party no.2, the applicant in
connivance with the Advocate of the
opposite party no.2 had threatening to an ill
treatment of her mother, had got her
statement recorded under Section 164
Cr.P.C., under coercion and again she had
lodged the application under Section 156(3)
Cr.P.C., through her mother against the
applicant for the charges under the
provisions of the S.C./S.T. Act and in the
instant case, since, the applicant herein was
already married, there was, from the very
beginning, an element of force and
subsequently thereto, the false promise of
marriage by the applicant. Therefore, the
subsequent relationship on such false
promise of marriage which the applicant
knew from the very beginning that the
same is false, therefore, the offence is
categorically
made
out
against
the
applicant. Since, his promise to marry the
opposite party no.2 was false since its
inception, therefore, prima facie a case has
been made out against the applicant and the
same cannot be quashed in exercise of
power under Section 482 Cr.P.C.

14. Learned counsel for the opposite
party no.2 has relied upon the judgement of
Shambhu Kharwar (supra) to submit that
since from the inception the applicant knew
that he has no intention to marry the
opposite party no.2 and initially he had
established forcible physical relationship
by making the opposite party no.2 to
consume contaminated cold drink and
thereupon under the garb of false promise
to
marry,
he
had
maintained
the
relationship, therefore, a prima facie case
has been made out.

15. Having heard the submissions
made by learned counsels for the parties,
this Court has carefully gone through the
record of the case. In Vinod Kumar
(supra), the Apex Court having regard to
the facts of that case wherein the victim
was fully aware that the relationship of
marriage, which she has performed with the
accused in that case was a nullity and
continued with such relations and had
physical relationship with the accused. In
that circumstances, the Apex Court has
held that such consensual relationship
would not amount to rape, as the victim
was fully aware about such relationship. In
Shambhu Kharwar(supra), the Apex Court
has held that once it is established that the
promise of marriage under the garb of
which the accused had made relationship
with the victim was false from its inception
and on such promise if the accused has
induced
the
victim
into
a
sexual
relationship, then, the offence of rape shall
be made out. If initially the promise of
marriage was made in good faith and the
parties have entered into a consensual
physical relationship and on subsequent
4 All. Anshul Kumar Vs. State of U.P. & Anr.
709
breach of such promise, no offence of rape
shall be made out. In Vineet Kumar
(supra), the Apex Court having found
that the prosecution of the accused by the
victim was a malicious prosecution, has
allowed the appeal and quashed criminal
proceedings against the accused persons.
In Jiyaullah(supra), this Court having
regard
to
the
peculiar
facts
and
circumstances of the case wherein the
parties
were
having
long-standing
consensual physical relationship for more
than 15 years and initially there was
promise of marriage in good faith and
subsequently on such breach of promise
to marry, no offence of rape is made out.
Therefore, the criminal proceedings were
quashed.

16. In the instant case from the
statement as made under Section 164
Cr.P.C., it is clear that in the first
instance the applicant herein has raped
the opposite party no.2 by making her to
consume a contaminated cold-drinks,
thereby,
making
her
unconscious.
Therefore, it was prima facie an act of
force
without
consent.
Thereafter,
looking at the authority of the applicant,
she could not resist such relationship.
Subsequent thereto, the applicant had
established the physical relationship with
the opposite party no.2 under the garb of
promise to marry her by divorcing his
previous
wife.
However,
from
the
allegation it is crystal clear that the
applicant herein knew that such a promise
which is made by the applicant was
nothing but a false promise and he had no
intention to marry the opposite party
no.2. When the opposite party no.2 herein
had tried to create pressure on the
opposite party no.2 to keep his promise
and divorce his wife and marry the
opposite party no.2, then, the applicant as
being
a
Police
Officer
filed
an
Application
under
Section
156(3)
Cr.P.C., upon which an F.I.R. was
registered under the provisions of the
S.C./S.T. Act through his mother. The
Police Officers are duty bound to protect
the victims. However, in the instant case,
as per the allegations made, the applicant
herein appears to have misutilized his
position and has exploited the opposite
party no.2. Therefore, in the considered
opinion of this Court a prima facie case
has been established against the applicant
from
the
charge-sheet
as
well
as
statement under Section 164 Cr.P.C. of
the opposite party no.2 in the instant
case. With regard to the previous F.I.R.
and the final report submitted in the
previous F.I.R., the opposite party no.2
has categorically explained her conduct as
to under what circumstances and on the
pressure created by the applicant, the
opposite party no.2 did not make true
statement under Section 164 Cr.P.C. and
did not oppose the final report as the
applicant herein was continuously making
false promise of marriage and continuing
his relationship with opposite party no.2.
Therefore, all the allegations made in the
instant case are subject to evidence during
the trial in the instant case. Since, a prima
facie case has been found against the
applicant, therefore, this Court do not find
any good ground to interfere in the chargesheet or in the order taking cognizance
against the applicant herein. Accordingly,
the instant application is dismissed in the
light of the judgements of Apex Court in
State of Haryana v. Bhajan Lal : 1992
Supp
(1)
SCC
335,
Neeharika
Infrastructure Pvt. Ltd. vs. State of
Maharashtra and Others : 2021 SCC
OnLine SC 315 and R. P. Kapoor Vs.
State of Punjab, AIR 1960 S.C. 866.
----------
710 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 4 ILRA 710
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 29205 of 2023

Shree Om & Ors. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vipul Kumar Singh, Sri Amit Daga, Sri
Digvijay Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Code of Criminal
Procedure,1973 -Section 482- Indian
Penal Code,1860 - Sections 147, 149,
307, 436, 120-B - Quashing of Cognizance
Order Denied - The applicants sought to
quash the order dated 17.01.2020 by the
Chief Judicial Magistrate, rejecting the final
report and taking cognizance under Sections
147, 149, 307, 436, 120-B IPC - Held, the
Magistrate validly took cognizance under
Section 190(1)(b) CrPC based on material in
the police report, and no infirmity was found
in the order. (Paras 2, 15, 16, 18)

B. Section 190(1)(b) CrPC - Cognizance
on Police Report - The Magistrate rejected
the final report and took cognizance based
on the material in the police report - Held,
as per H.S. Bains, India Carat Pvt. Ltd., and
other precedents, a Magistrate can take
cognizance under Section 190(1)(b) CrPC,
ignoring the police's conclusion, if the
material supports a prima facie case. (Paras
7, 8, 9, 11, 15)

C. Rejection of Final Report - The
investigating agency submitted final reports
on
16.02.2018
and
19.11.2018,
both
rejected by the Magistrate after considering
protest petitions and material evidence -
Held, the Magistrate's rejection of the final
report and cognizance based on police report
evidence was lawful, as per Vishnu Kumar
Tiwari. (Paras 3, 12, 13, 16)

D.
Magistrate's
Discretion
in
Cognizance - The applicants argued that
cognizance could not be taken after rejecting
the final report - Held, the Magistrate is not
bound by the police's conclusion and can
independently take cognizance under Section
190(1)(b) CrPC without treating the protest
petition as a complaint under Section 200
CrPC, as clarified in Gangadhar Janardan
Mhatre and Asif Ahmad Siddiqui. (Paras 9,
11, 14, 15)

E.
Conflict
with
Coordinate
Bench
Judgment - The applicants relied on Shahid
and Others, which held that cognizance
cannot be taken after rejecting a final report
- Held, this judgment is inconsistent with
Supreme Court precedents and does not aid
the applicants. (Para 17)

Application Dismissed.

List of Cases cited:

1. H.S. Bains Vs St., (1980) 4 SCC 631

2. India Carat Pvt. Ltd. Vs St. of Karn., (1989)
2 SCC 132

3. U.O.I. Vs Prakash P. Hinduja, (2003) 6 SCC
195

4. Gangadhar Janardan Mhatre Vs St. of Mah.,
(2004) 7 SCC 768

5. Vishnu Kumar Tiwari Vs St. of U.P., (2019)
8 SCC 27

6. Shahid and Others Vs St. of U.P.,
Application u/s 482 No. 10032 of 2022

7. Asif Ahmad Siddiqui Vs St. of U.P.,
Application u/s 482 No. 5500 of 2023

8. Tula Ram Vs Kishore Singh, (1977) 4 SCC
459