# Asif Ahmad Siddiqui v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-26
- **Case number:** Application U/S 482 No. 5500 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asif-ahmad-siddiqui-v-state-of-u-p-anr-50198
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections - 323, 363, 328, 376 Gha (Ka),
377, 504, 506, The Protection of Children
From Sexual Offences Act, 2012 - Section
5/6 - evidence produced by the accused in
his defence cannot be looked into by the
Court,
except
in
very
exceptional
circumstances, at the initial stage of the
criminal proceedings - If a prima facie
case
is
made
out
disclosing
the
ingredients of the offence alleged against
the accused, the Court cannot quash a
criminal proceeding. (Para - 11,23)

(B) The Code of Criminal Procedure, 1973
- Sections 161,164,173(2), 200, 202, 319
& 190 (1)(b) - Cognizance of offences by
Magistrates - upon a police report of such
facts - Upon receipt of a police report
under Section 173(2) a Magistrate is
entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even
if the police report is to the effect that no
case
is
made
out
against
the
accused.(Para - 21)

Statement of victim recorded under Section
164 Cr.P.C. - accused-applicant summoned
- Magistrate ruled on de facto complainant's
independent application - finding sufficient
material for applicant's complicity - despite
not appearing on charge-sheet - Magistrate
summons
individuals
-
upon
offence
cognizance - examining available materials
to determine involvement - beyond police
reports, charge sheets, or F.I.R.(Para -
31)

HELD:-Adjudication on disputed questions of
fact, can be handled by the trial court. It is not
proper to have a pre-trial before the trial begins.
Truth of the prosecution case must be
established at the trial, according to law. Not a
case where the prosecution should be scuttled
at the threshold in exercising powers under
Section 482 of the Code.(Para - 30,32)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:
28 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,543 of 44,002. This is a partial read: ask again with offset=39543 for what follows._

5 All. Asif Ahmad Siddiqui Vs. State of U.P. & Anr.
27
in Criminal Case No. 387 of 2019 (Shabana
Bano Vs. Aliraza), under Section 125
Cr.P.C., Police Station-Dudhi, DistrictSonbhadra cannot be legally sustained and
hereby
set
aside.
Criminal
Misc.
Application No. 387 of 2019 (Shabana
Bano Vs. Ali Raza) is restored to its
original number. The Principal Judge,
Family Court, Sonbhadra is directed to
consider and decide the same afresh on
merits, in accordance with law, by means of
a reasoned and speaking order, after
affording opportunity of hearing to the
parties concerned, preferably within a
period of six months from the date of
production of a certified copy of this order,
without
granting
any
unnecessary
adjournment to either of the parties, if
possible on day to day basis.

39. The present application succeeds
and is allowed subject to the observations
made herein-above. There shall be no order
as to costs.
----------
(2023) 5 ILRA 27
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.04.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 5500 of 2023

Asif Ahmad Siddiqui ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Dr. C.P. Upadhyay

Counsel for the Respondents:
G.A.,Sri Harbansh Prasad Pandey, Sri
Pradeep Kumar Mishra
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections - 323, 363, 328, 376 Gha (Ka),
377, 504, 506, The Protection of Children
From Sexual Offences Act, 2012 - Section
5/6 - evidence produced by the accused in
his defence cannot be looked into by the
Court,
except
in
very
exceptional
circumstances, at the initial stage of the
criminal proceedings - If a prima facie
case
is
made
out
disclosing
the
ingredients of the offence alleged against
the accused, the Court cannot quash a
criminal proceeding. (Para - 11,23)

(B) The Code of Criminal Procedure, 1973
- Sections 161,164,173(2), 200, 202, 319
& 190 (1)(b) - Cognizance of offences by
Magistrates - upon a police report of such
facts - Upon receipt of a police report
under Section 173(2) a Magistrate is
entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even
if the police report is to the effect that no
case
is
made
out
against
the
accused.(Para - 21)

Statement of victim recorded under Section
164 Cr.P.C. - accused-applicant summoned
- Magistrate ruled on de facto complainant's
independent application - finding sufficient
material for applicant's complicity - despite
not appearing on charge-sheet - Magistrate
summons
individuals
-
upon
offence
cognizance - examining available materials
to determine involvement - beyond police
reports, charge sheets, or F.I.R.(Para -
31)

HELD:-Adjudication on disputed questions of
fact, can be handled by the trial court. It is not
proper to have a pre-trial before the trial begins.
Truth of the prosecution case must be
established at the trial, according to law. Not a
case where the prosecution should be scuttled
at the threshold in exercising powers under
Section 482 of the Code.(Para - 30,32)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:
28 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Nahar Singh Vs St. of U.P. , (2022) 5 SCC 295

2. Mohd. Allauddin Khan Vs The St. of Bihar &
ors., 2019 0 Supreme (SC) 454

3. Rajeev Kaurav Vs Balasahab & ors. , 2020 0
Supreme (SC) 143

4. St. of Har. Vs Bhajan Lal , 1992 AIR 604

5. Neeharika Infrastructure (P) Ltd. Vs St. of
Maha., (2021) SCC OnLine 315

6. Mahendra K.C. Vs St. of Karn. & ors. , AIR
2021 SC 5711

7. Shafiya Khan @ Shakuntala Prajapati Vs St.
of U.P., (2022) 4 SCC 549

8. Parbatbhai Ahir Vs St. of Guj. , (2017) 9 SCC
641

9. Ramveer Upadhyay & anr. Vs St. of UP &
anr., 2022 SCC online SC 484

10. Nahar Singh Vs The St. of U.P. & anr.,
(2022) 5 SCC 295

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Dr. C.P. Upadhyay,
learned counsel for the applicant, Mr.
Pradeep Kumar Mishra, Advocate holding
brief of Mr. Harbansh Prasad Pandey,
learned counsel for the informant and Mr.
Amit Singh Chauhan, learned AGA for the
State.

2. The present 482 Cr.P.C. application
has been filed to quash the order dated
30.01.2023 passed by Additional District
and Sessions Judge/Special Judge, POCSO
Act, Allahabad in Special Sessions Trial
No.2/2023 arising out of Case Crime
No.173 of 2022, under Sections 323, 363,
328, 376Gha(Ka), 377, 504, 506 IPC and
Section 5/6 POCSO Act, Police Station -
Shankargarh, District - Prayagraj.

3. The brief facts as enumerated in the
writ petition are as follows:-

i)
an
FIR
was
lodged
on
26.06.2022 at about 19:23 hrs. by Akbar
Ali under Sections 366, 504 IPC, which
was registered as Case Crime No.0173 of
2022 against three persons, namely, Nazim,
Hashim and Khurshid with the allegations
that the informant's minor daughter, 15
years old, was enticed away by Nazim son
of Samsuddin, resident of Nari Bari,
Mobile No.9198997737 on 21.06.2022.
Since the aforesaid date, Nazim was not
available at his residence and his mobile
number was also switched off. When the
informant went to Nazim's house, his
brother;
Hashim
and
brother-in-law;
Khurshid, used abusive words and also
spoke ill about the informant's daughter.
After making efforts for tracing her
daughter, an application was given on
which the present FIR has been lodged.

ii)
during
investigation,
the
statement of the victim u/s 161 Cr.P.C. was
recorded on 25.08.2022, which finds place
at C.D. Parcha No.6 (after more than two
months of the FIR), wherein she herself has
stated that her father's name is Akbar Ali
and she is resident of Surval Chandel, Nari
Bari, P.S.Shankargarh, Prayagraj. She is
aged about 19 years old and for fighting
with her brother and sister, she was scolded
by her mother and being annoyed, she left
her house on 22.06.2022 at about 01:00
o'clock
and
went
to Ajmer
Sharif.
Thereafter, she talked to her sister on
telephone and got to know that FIR has
been lodged by her father, hence she
returned back, by herself, to Prayagraj.

iii)
Subsequently,
the
victim
Nazia
was
medically
examined
on
27.08.2022 and during course of medical
examination, she has stated before the
doctor that the co-accused Nazim came to
5 All. Asif Ahmad Siddiqui Vs. State of U.P. & Anr.
29
her house on 22.06.2022, when she was
sleeping, she was made to smell some
intoxicating substance due to which she
fainted and after regaining her conscious,
she found herself at Allahabad where a
person named Asif was also present. She
also stated that both the persons, i.e. Nazim
and Asif, who have forcefully committed
rape upon her for two days, later on, she
was taken to Jammu where she was kept
for two months and forcefully, physical
relationship was established with her by
them. The victim was dropped to Allahabad
on 25.08.2022 by Nazim and three
unknown persons and she was left near
police station.

iv) Thereafter, the statement of
the victim under Section 164 Cr.P.C. was
recorded on 30.08.2022, which finds place
in CD Parcha No.7, wherein she has stated
that she is 15 years old. While she was
sleeping at her house on 22.06.2022 in the
night at about 02:00 a.m., Asif Siddiqui,
resident of Nari Bari and Khurshid came
there and made her smell some intoxicating
substances due to which she became
unconscious and after regaining conscious,
she found herself at Allahabad where she
was locked in a room and the aforesaid
persons forcefully established physical
relationship with her. Thereafter, Asif and
Nazim fully aware and conscious did
wrongful act with her. They, also beat and
forcibly establish natural and unnatural
physical relationship with the victim. She
was kept for two days at Allahabad,
thereafter, Nazim threatening the victim,
took her to Jammu, where he committed
rape upon her for two months relentlessly.
She was also threatened by Nazim for her
life and her father's life in case of denying
to fulfill his wish. As she fell ill due to
repeated
forceful
sexual
assault,
the
accused-Nazim left her at Allahabad,
whereafter she was taken by Niyaz
Khurshid to Sankargarh police station, who
left her there. After recording the statement
under Section 164 Cr.P.C., the victim was
handed over to her father as is evident from
page 47 of the application.

v) Subsequently, the statement of
mother of victim, Gudiya (wife of the
informant) recorded on 06.09.2022, which
finds place in CD Parcha No.IX, wherein
she has stated that her 15 years old
daughter was enticed away by Asif
Siddiqui son of Kamal, resident of Nai
Bazar, Karma, P.S.-Ghoorpur, DistrictPrayagraj and Khurshid son of Abdul
Razzak, resident of Badokhar, P.S.-Koraon,
District-Prayagraj on 22.06.2022 at about
02:00 in the night. The victim was made to
smell some intoxicating substance due to
which she became unconscious and,
thereafter, she was taken to Naribari
market, where she was offered tea in which
some intoxicating substance was mixed,
after
consuming
which,
she
became
unconscious. She was then taken to
Allahabad where she was locked in a room
and forceful physical relationship was
established by Asif Siddique and Nazim,
son of Samsuddin, resident of Nari Bari,
P.S. Sankargarh, Prayagraj. They beat her
and
forcibly
established
natural
and
unnatural physical relationship with the
victim. She was kept for two days in
Allahabad and, thereafter, she was taken by
Nazim to Jammu, where Nazim did
wrongful act with her for two months, after
threatening to kill her and her father, in
case she does not permit him to do the
wrongful act. After repeatedly being
sexually exploited by Nazim,when she
became ill, she was dropped by Nazim to
Allahabad, from where Khurshid took her
to Police Station-Sankargarh and left there.
It has also been stated that all the aforesaid
facts about the incident was narrated by the
victim to her mother.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

vi)
After
investigation,
first
charge sheet has been submitted as Charge
Sheet No.188 of 2022 by the police against
Khurshid
only,
whereas
investigation
continued for the other accused persons.
Thereafter, the co-accused Nazim was
arrested by the Police. In the meantime, the
informant has approached before this Court
by means of filing a criminal writ petition
No.19896 of 2022 for fair and partial
investigation wherein the co-ordinate bench
of this court vide order dated 20.12.2022
was pleased to direct the respondents
therein for expeditiously fair and partial
investigation.

vii) Thereafter, the Investigating
Officer requested for CDR of the aforesaid
accused persons including the applicant as
is evident from S.C.D. Parcha No.VI dated
16.12.202.

viii) An application was moved
by the applicant before the Investigating
Officer
mentioning
therein
that
the
contradictions in the statement of the
victim under Section 164 Cr.P.C., the
mother of the victim and all the facts about
the CDR as detailed in parcha no.VI dated
16.12.2022. On the aforesaid application of
the applicant, second statement of the
mother of the victim was recorded on
17.12.2022, which finds place in S.C.D.
Parcha
no.VII,
wherein
the
specific
question was raised by the Investigating
Officer regarding statement of the victim
under Section 164 Cr.P.C., in which the
victim has stated about Asif Siddiqui, Nari
Bari, whereas the victim's mother in her
statement stated that Asif Siddique son of
Kamal, resident of Nari Bazar, Karma,
Police Station-Ghoorpur, Prayagraj. The
question, as to how the victim's mother
recognized Asif and on what basis, she has
stated the address as Karma, in place of
Nari Bari, she has stated that she does not
know Asif and she has narrated everything
as has been told by her husband about Asif.
She has also specifically stated that Asif is
not related to her, she has given the address
of Asif as told by her husband. Her
husband's nephew Mohd. Akhtar resides at
Nai Bazar, Karma.

ix) Subsequently, the Second
charge sheet being charge sheet no.188A of
2022 dated 27.12.2022 has been submitted
against Nazim and Hasim. Hence all the
three accused named in the FIR has been
chargesheeted. The applicant was not
charge sheeted in the present case as there
was no evidence against him for his
involvement in the aforesaid offence.

x) After
submission
of
the
aforesaid charge sheet against all the
accused named in the FIR, an application
was moved by the informant before the
Additional District and Sessions Judge,
Prayagraj under Section 190(1)(B) CrPC
for
summoning
the
accused-applicant
stating therein that on the basis of statement
of the victim under Section 164 CrPC, the
involvement of the applicant is clear and
prima facie case is established against the
applicant.
The
concerned
Magistrate
without applying his judicial mind and
solely relying upon the statement of the
victim under Section 164 Cr.P.C. has
summoned the applicant passing a nonspeaking and unreasoned order dated
30.01.2023. Hence the present case has
been filed.

4. Learned counsel for the applicant
has challenged the summoning order as
well as the entire proceedings on the
following grounds:-

i) the impugned summoning order
dated 30.01.2023 has been passed without
application of judicial mind, solely relying
upon the statement of the victim under
Section 164 Cr.P.C.
5 All. Asif Ahmad Siddiqui Vs. State of U.P. & Anr.
31

ii) from the material collected by
the Investigating Officer, no prima facie
case is made out against the applicant.

iii) the court concerned proceeded
to
summon
the
applicant,
without
appreciating the contradictions with respect
to date of incident, identity of the applicant
while giving his address at Nari Bari as
well as change in her version, while
narrating the incident.

iv) the applicant is not named in
the FIR, his name does not find place in the
statement of the victim under Section 161
Cr.P.C. and it is for the first time, while
giving her statement before the doctor, that
too
as Asif,
without
disclosing
his
parentage and address his involvement in
the incident has been narrated.

v) the name of the applicant is
disclosed in the victim's statement under
Section 164 Cr.P.C. as Asif Siddiqui of Nari
Bari,
thus
from
the
aforesaid,
the
involvement of the applicant, who is
resident
of
Nai
Bazar,
Chak
Ghan
Shyamdas, Post-Karma, Police StationGhoorpur, cannot be proved.

vi) in order to falsely implicate
the applicant and meet out the deficiency,
first statement of the victim's mother was
recorded on 06.09.2022, wherein for the
first time, proper name, parentage and
address of the applicant has been disclosed
as told by the victim to her mother, whereas
in her second statement, she stated that she
does not know the applicant nor is he
related to her and she has further stated that
she has disclosed about the applicant as
told by Akbar Ali (her husband).

vii) the involvement of the
applicant is also not established in the
C.D.R.
details
as
collected
by
the
Investigating Officer.

viii) the charge-sheet has been
submitted against the persons, who are
named in the FIR and the applicant has
been exonerated, there being no evidence
against him but on the informant's
application u/s 190 (1)(b) CrPC, the
applicant has been summoned, which is
against settled position of law.

5. Learned counsel for the applicant
further submits that while entertaining the
final report as submitted against the
accused persons, wherein the applicant was
exonerated,
there
are
two
remedies
provided to the informant, either to move
protest petition for further investigating or
move an application u/s 319 Cr.P.C. for
summoning of the applicant after the
examination of the prosecution witnesses.
The concerned Magistrate has entertained
the informant's application u/s 190(1)(b)
Cr.P.C. and summoned the applicant
without considering the aforesaid fact.

6. Learned counsel for the applicant
further
submits
that
the
concerned
Magistrate has summoned the applicant,
without entering into genesis of the fact,
evaluating the evidence, and has only relied
upon the statement of the victim under
section 164 Cr.P.C.

7. Learned counsel for the applicant
further submits that in case, statement of
the victim u/s 164 Cr.P.C. is believed in
totality then the name of the accusedapplicant Asif of Nari Bari, P.S.Sankargarh,
Prayagraj would come into picture in place
of applicant, who is resident of Nai Bazar,
Karma, P.S.Ghoorpur, Prayagraj, therefore,
the applicant's involvement in the aforesaid
case cannot be proved.

8. He further submits that seeing the
variations at different places, there is
nothing on record to prove that the
applicant is the person whose involvement
is found in the incident and that too solely
32 INDIAN LAW REPORTS ALLAHABAD SERIES
relying upon the statement under Section
164 Cr.P.C. Placing relying upon the
judgment of the Apex Court in the case of
Nahar Singh vs. State of U.P. reported in
(2022) 5 SCC 295, he submits that
Magistrate is not empowered to take
cognizance on an offence on the basis of
police report in terms of section 190(1)(b)
Cr.P.C. and issue summons to the persons,
who are not arraigned as accused in the
charge sheet and only on the basis of
material as collected by the investigating
officer.

9. Learned counsel for the applicant,
therefore,
submitted
that
the
present
criminal proceedings initiated against the
applicant are not only malicious but also an
abuse of the process of the court of law. On
the cumulative strength of the aforesaid
submissions, it is submitted by learned
counsel
for
the
applicant
that
the
proceedings of the above mentioned
criminal case are liable to be quashed by
this Court.

10. Per contra, learned AGA for the
State as well as learned counsel for the
informant submits that the contention
regarding the fact that there are variations
with respect to name of the applicant, who
is not named in the FIR as well as
regarding his address and parentage and
there is no evidence in this regard to prove
that the applicant is the person, who has
committed the offence, it is submitted that
the victim is very clear with respect to the
fact that she has been sexually exploited by
the applicant Asif Siddiqui about whom she
has stated in her statement under Section
164 Cr.P.C. as well as the statement before
the doctor, hence minor contradictions
cannot go to prove that the applicant is
innocent. They further submits that at the
stage
of
taking
cognizance
by
the
Magistrate as per the provisions contained
in Section 190(1)(b) CrPC, the concerned
Magistrate has to see as to whether prima
facie case is being made out against the
applicant. In the instant case, the concerned
Magistrate
has
rightly
allowed
the
application
of
the
informant
after
considering the statement of the victim u/s
164 Cr.P.C. as well as the evidences
collected by the Investigating Officer
including the statements of the witnesses.
They further submits that all other
contentions raised by the applicants'
counsel relate to disputed questions of fact.

11. Lastly, the learned A.G.A. as well
as learned counsel for the informant states
that the High Court may not quash the
entire criminal proceedings under Section
482 Cr.P.C. at the pre-trial stage, for which
he has relied upon the judgment of the
Apex Court in the case of Mohd.
Allauddin Khan Vs. The State of Bihar
& Others reported in 2019 0 Supreme
(SC) 454, wherein the Apex Court has held
that the High Court had no jurisdiction to
appreciate the evidence of the proceedings
under Section 482 Cr.P.C. because whether
there
are
contradictions
or/and
inconsistencies in the statements of the
witnesses is an essential issue relating to
appreciation of evidence and the same can
be gone into by the Judicial Magistrate
during trial when the entire evidence is
adduced by the parties. However, in the
present case the said stage is yet to come.
They have further relied upon the judgment
of the Apex Court in the case of Rajeev
Kaurav Vs. Balasahab & Others reported
in 2020 0 Supreme (SC) 143, wherein the
Apex Court has held that it is no more res
integra that exercise of power under
Section 482 CrPC to quash a criminal
proceeding is only when an allegation
made in the FIR or the charge sheet
5 All. Asif Ahmad Siddiqui Vs. State of U.P. & Anr.
33
constitutes
the
ingredients
of
the
offence/offences alleged. Interference by
the High Court under Section 482 CrPC is
to prevent the abuse of process of any law
or Court or otherwise to secure the ends of
justice. It is settled law that the evidence
produced by the accused in his defence
cannot be looked into by the Court, except
in very exceptional circumstances, at the
initial stage of the criminal proceedings. It
is trite law that the High Court cannot
embark upon the appreciation of evidence
while considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings. It is clear from the law laid
down by this Court that if a prima facie
case is made out disclosing the ingredients
of the offence alleged against the accused,
the
Court
cannot
quash
a
criminal
proceeding.

12. On the cumulative strength of the
aforesaid submissions, learned A.G.A. as
well as the learned counsel for the
informant states that this Court may not
exercise its inherent power under Section
482 Cr.P.C. in the present case, and hence
the present application is liable to be
rejected.

13. I have considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
application.

14. Before proceedings further, it is
apposite to give reference of Section 190
Cr.P.C., which is as under:-

"190. Cognizance of offences by
Magistrates.--

(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence--

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

15. After the close scrutiny of the
aforesaid Section, the Court finds that
section 190(1)(b) CrPC does not lay down
that a Magistrate can take cognizance of an
offence only if the investigating officer
gives an opinion that the investigation has
made out a case against the accused. The
Magistrate can ignore the conclusion
arrived at by the investigating officer and
independently apply his mind to the facts
emerging from the investigation and take
cognizance of the case, if he thinks fit,
exercise
his
powers
under
Section
190(1)(b) and direct the issue of process to
the accused.

16. This Court finds substance in the
contention raised by the learned counsel for
the opposite party no.2 as well as learned
A.G.A. that prima facie case for the alleged
offence is made out against the applicant.
In the statement of the victim u/s 164
Cr.P.C. as well as the statement before the
doctor, there is specific allegation against
the applicant regarding sexually assaulting
the victim.

17. As regards the first contention
raised by the learned counsel for the
34 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant regarding the contradictions in
the name of applicant, his address and
parentage, the Court observed that the
victim with whom such an incident has
happened, is in a sense of shock and not in
a state of mind to tell the details of incident
in a proper manner. There are minor
contradictions, which cannot be seen here.
The applicant shall have ample opportunity
to prove his innocence during trial as such
the allegation made against him cannot be
sifted at this stage. At the time of taking
cognizance, the Magistrate has only to see
whether prima facie there are cogent
reasons for issuing the process.

18. With respect to the second
submission that the Magistrate cannot
summon the other accused at the time of
taking
cognizance,
even
though
the
material exists has no force and the same
has been reiterated by the Apex Court in
the case of Nahar Singh (supra) upon
which learned counsel for the applicant has
relied, where while discussing the divergent
views of different Benches of this Court, it
has been held that the question of
summoning the persons, who are not
arrayed as an accused in the charge-sheet or
police report, cannot be determining factor
for summoning such persons and does not
constrict exercise of such power of the
Court taking cognizance in respect of
persons such categories.

19. It is not disputed by the learned
counsel appearing for the parties that the
Magistrate
is
empowered
to
take
cognizance under Section 190(1) CrPC in
either of the three contingencies namely:-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

20. The cognizance of the offence can
be taken on the basis of the police reports
as envisaged in Clause (b) of Section
190(1) CrPC irrespective of the opinion of
the Investigating Officer that prima facie
no case is made out, if the material
collected and the statements of the
witnesses recorded under Section 161
CrPC, in the opinion of the Magistrate, are
sufficient to make out a prima facie case
against the accused persons.

21. Thus the position is very clear and
well settled that upon receipt of a police
report under Section 173(2) a Magistrate is
entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if
the police report is to the effect that no case
is made out against the accused. The
Magistrate can take into account the
statements of the witnesses examined by
the police during the investigation and take
cognizance of the offence complained of
and order the issuance of process to the
accused. Section 190(1)(b) does not lay
down
that
a
Magistrate
can
take
cognizance of an offence only if the
investigating officer gives an opinion that
the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusion arrived at by the
investigating officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of
the case, if he thinks fit in exercise of his
powers under Section 190(1)(b) and direct
the issue of process to the accused. The
Magistrate is not bound in such a situation
to follow the procedure laid down in
Sections 200 and 202 of the Code for
5 All. Asif Ahmad Siddiqui Vs. State of U.P. & Anr.
35
taking cognizance of a case under Section
190(1)(a), though, it is open to him to act
under Section 200 or Section 202 also.

22. The legal position is quite clear.
Once a final report is submitted against
some body and simultaneously a charge
sheet is submitted against the others, if the
Magistrate takes cognizance on the basis of
the charge sheet and accepts the final
report, a protest petition will lie and if such
protest petition has all the ingredients
mentioned in Section 2(d) of the Code of
the Criminal Procedure, it can be treated as
a complaint and proceedings of complaint
case may go on involving Sections 200 and
202 CrPC. The Magistrate can then pass an
order according to law. In other cases,
where the charge-sheet has been submitted
against few accused and others have been
exonerated, the Magistrate is not bound by
the conclusion of the Investigating Officer
and he, after applying his judicial, mind can
proceed to issue process on the de facto
complainant's application.

23. This Court comes on the issue
whether it is appropriate for this Court
being the Highest Court to exercise its
jurisdiction under Section 482 Cr.P.C. to
quash the charge-sheet and the proceedings
at the stage when the Magistrate has merely
issued process against the applicant and
trial is to yet to come only on the
submission made by the learned counsel for
the applicant that present criminal case
initiated by opposite party no.2 are not only
malicious but also abuse of process of law.
It is no more res integra that exercise of
power under Section 482 CrPC to quash a
criminal proceeding is only when an
allegation made in the FIR or the charge
sheet constitutes the ingredients of the
offence(s) alleged. Interference by the High
Court under Section 482 CrPC is to prevent
the abuse of process of any law or Court or
otherwise to secure the ends of justice. It is
settled law that the evidence produced by
the accused in his defence cannot be looked
into by the Court, except in very
exceptional circumstances, at the initial
stage of the criminal proceedings. It is clear
from the law laid down by the Apex Court
that if a prima facie case is made out
disclosing the ingredients of the offence
alleged against the accused, the Court
cannot quash a criminal proceeding.

24. In the case of State of Haryana
Vs. Bhajan Lal reported in 1992 AIR 604,
the Apex Court in paragraph 102 has
enumerated 7 categories of the cases where
power under Section 482 Cr.P.C. can be
exercised by this Court, which are quoted
below:-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
36 INDIAN LAW REPORTS ALLAHABAD SERIES
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156 (1) of the Code except under
an order of a Magistrate within the purview
of Section 155 (2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155 (2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

25. The principles laid down by the
Apex Court in the aforesaid case, have
consistently been followed in the recent
judgement of three-Judge Bench of the
Apex Court in the case of Neeharika
Infrastructure (P) Ltd. vs. State of
Maharashtra reported in (2021) SCC
OnLine 315 wherein it has been held that
there is no denial of the fact that power
under Section 482 Cr.P.C. is very wide, but
as observed by this Court in catena of
decisions,
referred
to
hereinabove,
conferment of wide power requires the
court to be more cautious and it casts an
onerous and more diligent duty on the
court. Therefore, in exceptional cases,
when the High Court deems it fit, regard
being had to the parameters of quashing
and the self-restraint imposed by law, may
pass appropriate interim orders, as thought
apposite in law, however, the High Court
has to give brief reasons which will reflect
the application of mind by the court to the
relevant facts.

26. It is trite law that the power of
quashing criminal proceedings should be
exercised with circumspection and that too,
in the rarest of rare cases and it was not
justified for this Court in embarking upon
an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the Final report or the complaint. A
finding on the veracity of a material relied
on by the prosecution in a case where the
allegations levelled by the prosecution
disclose a cognizable offence, is not a
consideration for the High Court while
exercising its power under Section 482
Cr.P.C. This view is fortified by the
decision of the Apex Court in Mahendra
5 All. Asif Ahmad Siddiqui Vs. State of U.P. & Anr.
37
K.C. v. State of Karnataka and Ors.
Reported in AIR 2021 SC 5711.

27. In recent relevant judgement of the
Apex Court in the case of Shafiya Khan @
Shakuntala Prajapati vs. State of U.P.,
reported in (2022) 4 SCC 549, it was
observed as under;-

"16. It is no doubt true that the
power of quashing of criminal proceedings
should be exercised very sparingly and with
circumspection and that too in rarest of the
rare cases and it was not justified for the
Court in embarking upon an enquiry as to
the reliability or genuineness or otherwise
of the allegations made in the FIR or the
complaint and that the inherent powers do
not confer any arbitrary jurisdiction on the
Court to act according to its whims and
fancies."

28. The Apex Court in the case of
Parbatbhai Ahir Vs. State of Gujarat
reported in (2017) 9 SCC 641, referring to
various caases has summarized following
principles to govern powers of High Court
under Section 482 Cr.P.C.:-

"15 The broad principles which
emerge from the precedents on the subject,
may be summarised in the following
propositions :

(i) Section 482 preserves the
inherent powers of the High Court to
prevent an abuse of the process of any
court or to secure the ends of justice. The
provision does not confer new powers. It
only recognises and preserves powers
which inhere in the High Court;

(ii)
The
invocation
of
the
jurisdiction of the High Court to quash a
First Information Report or a criminal
proceeding on the ground that a settlement
has been arrived at between the offender
and the victim is not the same as the
invocation of jurisdiction for the purpose of
compounding
an
offence.
While
compounding an offence, the power of the
court is governed by the provisions of
Section 320 of the Code of Criminal
Procedure, 1973. The power to quash
under Section 482 is attracted even if the
offence is non-compoundable.

(iii) In forming an opinion
whether
a
criminal
proceeding
or
complaint should be quashed in exercise
of its jurisdiction under Section 482, the
High Court must evaluate whether the
ends of justice would justify the exercise
of the inherent power;

(iv) While the inherent power of
the High Court has a wide ambit and
plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to prevent
an abuse of the process of any court;

(v) The decision as to whether a
complaint or First Information Report
should be quashed on the ground that the
offender and victim have settled the
dispute, revolves ultimately on the facts and
circumstances of each case and no
exhaustive elaboration of principles can be
formulated;

(vi) In the exercise of the power
under Section 482 and while dealing with a
plea that the dispute has been settled, the
High Court must have due regard to the
nature and gravity of the offence. Heinous
and serious offences involving mental
depravity or offences such as murder, rape
and dacoity cannot appropriately be
quashed though the victim or the family of
the victim have settled the dispute. Such
offences are, truly speaking, not private in
nature but have a serious impact upon
society. The decision to continue with the
trial in such cases is founded on the
overriding element of public interest in
punishing persons for serious offences;
38 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii)
As
distinguished
from
serious offences, there may be criminal
cases which have an overwhelming or
predominant element of a civil dispute.
They stand on a distinct footing in so far as
the exercise of the inherent power to quash
is concerned;

(viii) Criminal cases involving
offences which arise from commercial,
financial,
mercantile,
partnership
or
similar transactions with an essentially
civil flavour may in appropriate situations
fall for quashing where parties have settled
the dispute;

(ix) In such a case, the High
Court may quash the criminal proceeding if
in view of the compromise between the
disputants, the possibility of a conviction is
remote and the continuation of a criminal
proceeding would cause oppression and
prejudice; and

(x) There is yet an
exception to the principle set out in
propositions
(viii)
and
(ix)
above.
Economic offences involving the financial
and economic well-being of the state have
implications which lie beyond the domain
of
a
mere
dispute
between
private
disputants. The High Court would be
justified in declining to quash where the
offender is involved in an activity akin to a
financial
or
economic
fraud
or
misdemeanour. The consequences of the act
complained of upon the financial or
economic
system
will
weigh
in
the
balance."

29. In another judgment of the Apex
Court in the case of Ramveer Upadhyay
and Another Vs. State of UP and another
reported in 2022 SCC online SC 484, it
has been held as under:-

39. In our considered opinion
criminal proceedings cannot be nipped in
the bud by exercise of jurisdiction under
Section 482 of the Cr.P.C. only because the
complaint has been lodged by a political
rival. It is possible that a false complaint
may have been lodged at the behest of a
political
opponent.
However,
such
possibility would not justify interference
under Section 482 of the Cr.P.C. to quash
the criminal proceedings. As observed
above, the possibility of retaliation on the
part of the petitioners by the acts alleged,
after closure of the earlier criminal case
cannot be ruled out. The allegations in
the complaint constitute offence under the
Attrocities Act. Whether the allegations
are true or untrue, would have to be
decided in the trial.