# Ashish Shukla @ Kallu @ Ashok Kumar & Anr v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-02
- **Case number:** Application U/S 482/378/407 No. 4301 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-shukla-kallu-ashok-kumar-anr-v-state-of-u-p-anr-46508
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure,1973-Section 482 - Indian Penal
Code, 1860-Sections 147, 304, 506-quashing of
chargesheet-incidence in question took place in
Delhi-victim admitted to the hospital at Delhi
and after being discharged from the hospital he
reached at his native village situated at Hardoithere
was
substantial
delay,
which
is
unexplained, of about ten days-on account of
failure on the part of informant the actual truth
could not comeforth-these facts have not been
verified by the Magistrate before taking
congnizance of the Charge-Sheet so the factum
of due care and precaution on the part of
Magistrate was missing in this case-this
cognizance may not be said to be taken in good
faith, therefore, the protection of Section 460
Cr.P.C.
may
not
be
extended
to
such
cognizance order-Since no cause of action
accrued at Hardoi, the concerned Magistrate
had
no
jurisdiction
to
deal
with
the
matter.(Para 1 to 29)

The application is allowed. (E-6)

List of Cases cited:

Abraham Ajith & ors. Vs Insp. of Police, Chennai &
anr. CRLA No.904 of 2004 {SLP (Crl.) No. 4573 of
2003 }

## Text

11 All. Ashish Shukla @ Kallu @ Ashok Kumar & Anr. Vs. State of U.P. & Anr.
305
(2021)12ILR A305
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 4301 of 2021

Ashish Shukla @ Kallu @ Ashok Kumar & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Indresh Kumar Mishra, S.C. Misra

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law
-
Code
of
Criminal
Procedure,1973-Section 482 - Indian Penal
Code, 1860-Sections 147, 304, 506-quashing of
chargesheet-incidence in question took place in
Delhi-victim admitted to the hospital at Delhi
and after being discharged from the hospital he
reached at his native village situated at Hardoithere
was
substantial
delay,
which
is
unexplained, of about ten days-on account of
failure on the part of informant the actual truth
could not comeforth-these facts have not been
verified by the Magistrate before taking
congnizance of the Charge-Sheet so the factum
of due care and precaution on the part of
Magistrate was missing in this case-this
cognizance may not be said to be taken in good
faith, therefore, the protection of Section 460
Cr.P.C.
may
not
be
extended
to
such
cognizance order-Since no cause of action
accrued at Hardoi, the concerned Magistrate
had
no
jurisdiction
to
deal
with
the
matter.(Para 1 to 29)

The application is allowed. (E-6)

List of Cases cited:

Abraham Ajith & ors. Vs Insp. of Police, Chennai &
anr. CRLA No.904 of 2004 {SLP (Crl.) No. 4573 of
2003 }
(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Indresh Kumar Mishra,
learned counsel for the petitioners and Sri Ran
Vijay Singh, learned Additional Government
Advocate for the State.

2. By means of this petition filed under
Section 482 Cr.P.C., the petitioners have prayed
for quashing the Charge-sheet No.128 of 2020
dated 17.03.2020 arising out of Case Crime
No.647 of 2018, under Sections 147, 304 & 506
I.P.C. relating to Police Station-Kotwali City
Hardoi, as well as the summoning order and also
the
entire
proceeding
of
Criminal
Case
No.18362 of 2020 (State vs. Ashish Shukla @
Kallu & others) pending in the Court of the
learned Chief Judicial Magistrate, DistrictHardoi.

3. On the first date of admission, a pure
legal question was argued to the effect that when
the appropriate alleged overt act has been
committed at Delhi, as to how the investigation
can be carried out at Hardoi and pursuant to such
investigation as to how the charge-sheet can be
filed at Hardoi. Since the charge-sheet was filed
at Hardoi, therefore, the cognizance was taken
by the learned court below at Hardoi.

4. So learned counsel for the petitioners
has submitted that the entire proceedings,
investigation and the cognizance order in the
present case is nullity in the eyes of law,
therefore, the same may be quashed. For this
reason, no notice was issued to the private
opposite party i.e. opposite party No.2.

5. Since the aforesaid legal question is
being dealt with, therefore, notice to opposite
party No.2 is hereby dispensed with as no
prejudice is being caused him by this order.

6. The brief facts of the present case are
that one First Information Report (in short
306 INDIAN LAW REPORTS ALLAHABAD SERIES
F.I.R.) was lodged bearing Case Crime No./0647
of 2018, under Sections 147, 304 & 506 I.P.C.,
at Police Station-Kotwali City, District-Hardoi
for the incidence dated 15.09.2018 which
admittedly took place at Delhi.

7. On account of prosecution story narrated
in the F.I.R., the present petitioners and three other
persons have assaulted/ beaten the brother of the
informant mercilessly at Delhi, resultant thereof,
his brother sustained serious injuries at Delhi.
Thereafter, the victim got admitted in the Hospital
at Delhi on the same day i.e. 15.09.2018 and after
being recovered at Delhi, he came to his home at
District-Hardoi and informed the informant about
the date of incidence which took place on
15.09.2018 at Delhi and in the meantime he
(victim) again felt ill and he was got admitted in
the Hospital at Hardoi where he expired on
26.09.2018.

8. Learned counsel for the petitioners has
drawn attention of this Court towards the
postmortem report, which is contained as
Annexure No.3 to this petition, such postmortem
was conducted at Hardoi and the opinion of Doctor
does not suggest as to what is the cause of death of
victim inasmuch as the incidence of assault had
taken place at Delhi on 15.09.2018. Thereafter, the
victim came to Hardoi on 25.09.2018 and died on
26.09.2018. Therefore, Sri Mishra has submitted
with vehemence that the place where cause of
action has accrued is Delhi, therefore, if the family
members of the victim were aggrieved, they
should be lodged the F.I.R. at Delhi immediately
after 15.09.2018. Further, there is no allegation
regarding assault or beating up at Hardoi on or
after 15.09.2018, therefore, the impugned F.I.R.
should have not been lodged at Hardoi and
investigation should have not been conducted at
Hardoi. Not only the above, the charge-sheet
should have not been filed before the concerning
court at Hardoi and the learned court of Magistrate
should have not taken cognizance of such chargesheet where cause of action has accrued at Delhi.

9. In support of his aforesaid submissions,
Sri Mishra has placed reliance upon the dictum
of Apex Court in re: Y. Abraham Ajith and
others vs. Inspector of Police, Chennai and
another rendered in Criminal Appeal No.904
of 2004 arising out of SLP (Crl.) No.4573 of
2003) referring paragraphs-7 to 16, which are
being reproduced here-in-below:-

"7. In response, learned counsel for
respondent no.2-complainant submitted that the
offences were continuing in terms of Section 178
(c) of the Code, and therefore The Court had the
jurisdiction to deal with the matter.

8. Section 177 of the Code deals with
the ordinary place of inquiry and trial, and
reads as follows:

"Section 177 : ORDINARY PLACE OF
INQUIRY AND TRIAL:

Every offence shall ordinarily be
inquired into and tried by a Court within whose
local jurisdiction it was committed."

9. Section 177 to 186 deal with venue
and place of trial. Section 177 reiterates the
well-established common law rule referred to in
Halsbury's Laws of England (Vol. IX para 83)
that the proper and ordinary venue for the trial
of a crime is the area of jurisdiction in which, on
the evidence, the facts occur and which alleged
to constitute the crime. There are several
exceptions to this general rule and some of them
are, so far as the present case is concerned,
indicated in Section 178 of the Code which read
as follows:

"Section 178 PLACE OF INQUIRY
OR TRIAL

(a) When it is uncertain in which of
several local areas an offence was committed, or

(b) where an offence is committed
partly in one local area and partly in another, or

(c) where an offence is continuing one,
and continues to be committed in more local
areas than one, or

(d) where it consists of several acts
done in different local areas, it may be inquired
11 All. Ashish Shukla @ Kallu @ Ashok Kumar & Anr. Vs. State of U.P. & Anr.
307
into or tried by a Court having jurisdiction over
any of such local areas."

10."All crime is local, the jurisdiction
over the crime belongs to the country where the
crime is committed", as observed by Blackstone.
A significant word used in Section 177 of the
Code is "ordinarily". Use of the word indicates
that the provision is a general one and must be
read subject to the special provisions contained
in the Code. As observed by the Court in
Purshottamdas Dalmia v. State of West Bengal
(AIR 1961 SC 1589), L.N. Mukherjee V. State of
Madras
(AIR
1961
SC
1601),Banwarilal
Jhunjhunwalla and Ors. v. Union of India and
Anr. (AIR 1963 SC 1620) and Mohan Baitha
and Ors. v. State of Bihar and Anr. (2001 (4)
SCC 350), exception implied by the word
"ordinarily" need not be limited to those
specially provided for by the law and exceptions
may be provided by law on consideration or may
be implied from the provisions of law permitting
joint trial of offences by the same Court. No
such exception is applicable to the case at hand.

11. As observed by this Court in State
of Bihar v. Deokaran Nenshi and Anr. (AIR
1973 SC 908), continuing offence is one which is
susceptible
of
continuance
and
is
distinguishable from the one which is committed
once and for all, that it is one of those offences
which arises out of the failure to obey or comply
with a rule or its requirement and which
involves a penalty, liability continues till
compliance, that on every occasion such
disobedience or non-compliance occurs or
recurs, there is the offence committed.

12.
A
similar
plea
relating
to
continuance of the offence was examined by this
Court in Sujata Mukherjee (Smt.) v. Prashant
Kumar Mukherjee (1997 (5) SCC 30). There the
allegations related to commission of alleged
offences punishable under Section 498-A and
323 IPC. On the factual background, it was
noted that though the dowry demands were
made earlier the husband of the complainant
went to the place where complainant was
residing and had assaulted her. This Court held
in that factual background that clause (c) of
Section 178 was attracted. But in the present
case the factual position is different and the
complainant herself left the house of the
husband on 15.4.1997 on account of alleged
dowry demands by the husband and his
relations. There is thereafter not even a whisper
of allegations about any demand of dowry or
commission of any act constituting an offence
much less at Chennai. That being so, the logic of
Section 178 (c) of the Code relating to
continuance of the offences cannot be applied.

13.The
crucial
question
is
whether any part of the cause of action arose
within the jurisdiction of the concerned Court.
In terms of Section 177 of the Code it is the
place where the offence was committed. In
essence it is the cause of action for initiation of
the proceedings against the accused.

14.While in civil cases, normally the
expression "cause of action" is used, in criminal
cases as stated in Section 177 of the Code,
reference is to the local jurisdiction where the
offence is committed. These variations in
etymological expression do not really make the
position different. The expression "cause of
action" is therefore not a stranger to criminal
cases.

15.It is settled law that cause of action
consists of bundle of facts, which give cause to
enforce the legal inquiry for redress in a court of
law. In other words, it is a bundle of facts, which
taken with the law applicable to them, gives the
allegedly affected party a right to claim relief
against the opponent. It must include some act
done by the latter since in the absence of such
an act no cause of action would possibly accrue
or would arise.

16.The expression "cause of action"
has acquired a judicially settled meaning. In the
restricted sense cause of action means the
circumstances forming the infraction of the right
or the immediate occasion for the action. In the
wider sense, it means the necessary conditions
308 INDIAN LAW REPORTS ALLAHABAD SERIES
for the maintenance of the proceeding including
not only the alleged infraction, but also the
infraction
coupled
with
the
right
itself.
Compendiously the expression means every fact,
which it would be necessary for the complainant
to prove, if traversed, in order to support his
right or grievance to the judgment of the Court.
Every fact, which is necessary to be proved, as
distinguished from every piece of evidence,
which is necessary to prove such fact, comprises
in "cause of action"."

10. Per contra, Sri Ran Vijay Singh,
learned Additional Government Advocate has
submitted that no doubt the occurrence in
question has been committed at Delhi on
15.09.2018 but so as to one allegation regarding
threatening of dire consequences is concerned, it
is after 15.09.2018 at Hardoi. Therefore, for the
section i.e. Section 506 I.P.C. the F.I.R. can be
lodged at Hardoi. He has also submitted that
since some allegations have been made at Delhi
and some allegations are at Hardoi, then as per
Section 178 Cr.P.C. the F.I.R. can be lodged at
Hardoi and therefore, the charge-sheet can be
filed at Hardoi and cognizance can be taken by
the competent court of law at Hardoi.

11. Having heard learned counsel for the
parties and having perused the material available
on record what I find is that the place of
occurrence is at Delhi and the date of incidence
is also relevant to say is 15.09.2018 and
admittedly no F.I.R. was lodged immediately
after 15.09.2018 at Delhi. The victim came to
Hardoi on 25.09.2018 and thereafter except the
allegation that the accused persons have
threatened for dire consequences, no other
allegations have been levelled against the
present petitioners and other persons.

12. At this stage, Section 460 Cr.P.C. is
being considered which provides that if any
Magistrate not empowered by law to do any of
the following things, amongst others clause (c)
provides to take cognizance of an offence under
clause (a) or clause (b) of sub-Section 1 of
Section 190 Cr.P.C. erroneously in good faith,
his proceedings shall not be set aside merely on
the ground of not being so empowered.

13. In the present case, learned counsel for
the petitioners has submitted that the Magistrate
was not empowered to take cognizance of
offence, which was committed at Delhi but
investigated at Hardoi and the charge-sheet has
been filed at Hardoi.

14. As per the aforesaid Section 460
Cr.PC, the proceedings shall not be set aside if
such erroneous cognizance has been taken in
good faith. Section 52 of I.P.C. defines the term
"good faith". It says that nothing is said to be
done or believed in "good faith" which is done
or believed without care and attention.

15. In the present case, such error of the
Magistrate may not be considered to be done in
good faith inasmuch as the allegations of F.I.R.
are of Delhi and there was substantial delay,
which is unexplained, of about ten days for not
reporting at Delhi immediately after committing
an offence in question at Delhi and these facts
have not been verified by the Magistrate before
taking cognizance of the Charge-sheet so the
factum of due care and precaution on the part of
the Magistrate was missing in this case. Hence,
the aforesaid error done by the Magistrate has
not been done in good faith then such
proceedings may liable to be quashed on this
ground alone.

16. Now, Section 462 Cr.P.C. is being
considered which categorically provides that if
the proceedings of the criminal court or any
finding, or order thereof took place in a wrong
Session Division, District, Sub-Division or other
local area, shall not be set aside for such reason
alone unless it appears that such error has in fact
occasioned the failure of justice.
11 All. Ashish Shukla @ Kallu @ Ashok Kumar & Anr. Vs. State of U.P. & Anr.
309

17. In the present case, the incidence in
question took place at a particular place of Delhi
on 15.09.2018, thereafter, the victim was
admitted at Pt. Madan Mohan Malviya Hospital,
Malviya Nagar, New Delhi for getting treatment
on the same day i.e. 15.09.2018 and after being
discharged from the hospital he reached at his
native village situated at district-Hardoi on
25.09.2018.

18. As per version of the F.I.R., the victim
was discharged from hospital after being recovered
and there is no allegation of any assault or attack at
Hardoi against the petitioners. No F.I.R. under
Sections 147 and 304 I.P.C. could have been
lodged against the petitioners at Hardoi. Even the
postmortem, which was done at Hardoi, is not very
clear about the period of injury so sustained by the
victim. Had the F.I.R. been lodged at Delhi
immediately
after
15.09.2018,
the
police
concerned at Delhi must have investigated such
serious allegations by examining the relevant
persons and material by approaching the hospital
where the victim had taken for his treatment after
15.09.2018. Therefore, it appears that on account
of lapse on the part of the informant the proper
investigation of the issue in question, which could
have been conducted at Delhi, could not be made.

19. Notably, on account of failure on the part
of the complainant/ informant the actual truth
could not comeforth and for the unexplained
reason as to why the F.I.R. was not lodged at Delhi
and also as to why the substantial delay has been
done in lodging the F.I.R., it would be a failure of
justice. Therefore, in view of the peculiar facts of
the instant case, for the aforesaid reasons, this
Court is considering it as a failure of justice,
therefore, the proceedings pending before the court
at Hardoi are liable to be set aside.

20. It would not be out of place to mention
here that if the opposite party No.2 is issued
notice, he cannot change his allegations of
F.I.R., e.g. date of incidence, place of incidence,
no explanation for not lodging the F.I.R. at Delhi
immediately after 15.09.2018, the admission that
the victim was discharged from Pt. Madan
Mohan Malviya Hospital, Malviya Nagar, New
Delhi after being recovered, unexplained delay
of more than ten days in lodging F.I.R. and no
overt act has been committed by the petitioners
against the victim at Hardoi between 25.09.2018
to 26.09.2018. In other words, after putting
appearance before this Court, he would not be
able to improve his case. However, he may take
appropriate remedy before appropriate authority
as per law inasmuch as in view of the trite law
no one can be left remedy less.

21. As per the scheme of Cr.P.C., Section
177 clearly mandates that every offence shall
ordinarily be incurred into and tried by the court,
within
whose
local
jurisdiction
it
was
committed. In the present case, the offence in
question, if any, has been committed at Delhi.

22. Section 178 Cr.P.C. provides further
that if it is uncertain about place of offence
which could have been committed in several
local areas the inquiry or trial may be conducted
by the court having jurisdiction in such local
areas. In the present case, on the basis of
allegations of F.I.R., it appears that offence in
question, if any, has been committed only at
Delhi.

23. The law is trite that the Magistrate can
take cognizance of offence not the offender and
while
taking
cognizance
his
prima-facie
satisfaction is sufficient as he should not to
explained reasons elaborately at that point of
time but he will have to peruse the material
available with the charge-sheet. If he is not
satisfied considering the material available on
record to take cognizance, he may pass such
appropriate order.

24. In the case in hand, before taking
cognizance of the charge-sheet the Magistrate
310 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned should have applied its mind by
asking the Investigating Officer as to what
offence has been committed at Hardoi and also
as to why the F.I.R. was not lodged at Delhi
and as to what is explanation of delay of more
than ten days in lodging the F.I.R. Had this
exercise been carried out by the Magistrate at
Hardoi
while
taking
cognizance,
any
appropriate order would have been passed in
stead of taking cognizance. This cognizance
may not be said to be taken in good faith,
therefore, the protection of Section 460
Cr.P.C. may not be extended to such
cognizance
order.
Besides,
the
mere
allegations of F.I.R. itself creates some
confusion as discussed above, therefore, if the
proceedings are permitted to be continued at
Hardoi, it would cause failure of justice,
hence, such proceedings may not be saved by
virtue of Section 462 Cr.P.C.

25. The Apex Court in re: Y. Abraham
Ajith and others (supra) has categorically
held that cause of action consists of bundle of
facts and expression "cause of action" has
acquired a judicially settled meaning, which
means
the
circumstances
forming
the
infraction of the right or the immediate
occasion for the action.

26. In the aforesaid judgment, the Apex
Court has considered the term "cause of
action" from Halsbury Laws of England
(Fourth Edition), which says that "cause of
action" is simply a factual situation the
existence of which entitles one person to
obtain from the Court a remedy against
another aspect.

27. Therefore, in the present case, the
cause of action has accrued at Delhi where no
F.I.R. was lodged and for the cause of action
which accrued at Delhi the investigation has
been done at Hardoi, charge-sheet has been
filed at Hardoi and the cognizance has been
taken by the learned court below concerned at
Hardoi, which is not permissible in the eyes of
law.

28. In view of the above, I hereby allow
the present petition.

29. Since no cause of action has accrued at
Hardoi, therefore, the concerned Magistrate at
Hardoi had no jurisdiction to deal with the
matter. Accordingly, the proceedings of the
aforesaid criminal case are quashed. The
informant/ complainant would be at liberty to
take appropriate steps against the accused
persons, strictly in accordance with law, if he so
chooses to do so.

30. No order as to costs.
----------
(2021)12ILR A310
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 4481 of 2021

Ram Surat Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Anshuman, Akash Dikshit

Counsel for the Opposite Parties:
G.A., Prem Prakash Singh

A. Criminal Law -Code of Criminal Procedure,
1973-Section 482 -Indian Penal Code, 1860Section
420-quashing
of-impugned
order
rejecting
the
discharge
application
and
dismissal order of the revision -applicant
requested to the court below to direct proper
enquiry/investigation
in
respect
of
handicapped certificate, which was subject-