# Babu Khan v. State of U.P. & Anr. Opp. Parties - **Citation:** (2020) 12 ILRA 191 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-11-03 - **Case number:** Application U/S 482 No. 12724 of 2020 - **Bench:** Ram Krishna Gautam - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-khan-v-state-of-u-p-anr-opp-parties-45455 - **Pages:** 4 ## Headnote Law - Code of Criminal Procedure, 1973- Section 482- Scope of- Contention of the complaint was in corroboration, with evidence, collected by the Magistrate, during enquiry. There was sufficient ground for passing of impugned summoning order and the Magistrate was well within its jurisdiction to pass impugned summoning order. The factual aspect, being argued before this Court, is not to be seen by the Court, in exercise of its inherent jurisdiction, under Section 482 of Cr.P.C. - This Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make analytic analysis of factual aspects because the same is a question, to be gone into, during course of trial, by the Trial court. In the exercise of its inherent jurisdiction u/s 482 of the Cr.Pc , the factual aspects of the case cannot be looked into as the same is to be 192 INDIAN LAW REPORTS ALLAHABAD SERIES considered in the course of trial by leading evidence. Criminal Application rejected. (Para 6,7) (E-3) Judgements/ Case law relied upon:- ## Text 12 All. Babu Khan Vs. State of U.P. & Anr. 191 court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice. (3) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (5)The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad. (6) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing 18. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 19. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the default bail under Section 167(2) CrPC and must not be construed to have any reflection on the ultimate merits of the case. 20. However, this Court makes it clear that this order does not prohibit or otherwise prevent the arrest or rearrest of the applicant on cogent grounds, in respect of the subject charge and in that event, the applicant will have to move a regular bail application for grant of bail which of course will be considered on its own merits. It is also made clear that this judgment/order shall have no impact on the arrest of the applicant in any other case. ---------- (2020)12ILR A191 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 03.11.2020 BEFORE THE HON'BLE RAM KRISHNA GAUTAM, J. Application U/S 482 No. 12724 of 2020 Babu Khan ...Applicant Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicant: Sri Jai Prakash Prasad Counsel for the Opp. Parties: A.G.A. Criminal Law - Code of Criminal Procedure, 1973- Section 482- Scope of- Contention of the complaint was in corroboration, with evidence, collected by the Magistrate, during enquiry. There was sufficient ground for passing of impugned summoning order and the Magistrate was well within its jurisdiction to pass impugned summoning order. The factual aspect, being argued before this Court, is not to be seen by the Court, in exercise of its inherent jurisdiction, under Section 482 of Cr.P.C. - This Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make analytic analysis of factual aspects because the same is a question, to be gone into, during course of trial, by the Trial court. In the exercise of its inherent jurisdiction u/s 482 of the Cr.Pc , the factual aspects of the case cannot be looked into as the same is to be 192 INDIAN LAW REPORTS ALLAHABAD SERIES considered in the course of trial by leading evidence. Criminal Application rejected. (Para 6,7) (E-3) Judgements/ Case law relied upon:- 1. St. of A.P Vs Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844 2. Hamida Vs Rashid, (2008) 1 SCC 474 3. Monica Kumar Vs St. of U. P, (2008) 8 SCC 781 4. Popular Muthiah Vs State, Rep. by Inspr. of Police, (2006) 7 SCC 296 5. Dhanlakshmi Vs R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 6. St. of Bih. Vs Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1 (Delivered by Hon'ble Ram Krishna Gautam, J.) 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Babu Khan, with a prayer for setting aside impugned summoning order, dated 6.6.2019, passed by the Additional Chief Judicial Magistrate, Court no.4, Aligarh, whereby, applicant has been summoned in Criminal Complaint Case No.12, New No.30 of 2018 (Shamsher vs. Babu Khan), under Section 138 of Negotiable Instrument Act In short N.I. Act), Police Station Quarsi, District Aligarh,, pending in the court of Additional Chief Judicial Magistrate, IV, Aligarh. 2. Learned counsel for applicant argued that in response to the notice given by the complainant, a reply, in detail, denying alleged issuance of cheque was given by the applicant, but, it was written in the complaint and affidavit, filed, in support thereof, that no reply of notice was there, which was utterly wrong and even then impugned summoning order has been passed, which was under abuse of process of law. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. Having heard learned counsel for both sides and gone through the impugned order as well as complaint filed before the Chief Judicial Magistrate, Aligarh, it is apparent that a complaint for offence punishable, under Section 138 of N.I. Act, of Police Station Quarsi, District Aligarh, was filed in the court of Chief Judicial Magistrate, being Complaint Case No.12 of 2018, by Shamsher against Babu Khan, with this contention that both of them were under acquaintance. On 15.6.2015, Rupess Three Lakhs and Fifty Thousand and on 20.6.2017, Rupees Two Lakhs, in all Rupees Five Lakhs and Fifty thousand, was taken by Babu Khan, for purchasing a house and solemnising marriage of his daughter and this money was paid by the complainant from the amount obtained by sale of his house, situated at Delhi. Subsequently, money was demanded back, but, it was not paid back. Ultimately, a cheque, dated 24.11.2017, bearing no. 085984, of Account No.50394686687 of Allahabad Bank, for Rupees Five Lakh and Fifty Thousand was issued in favour of complainant, Shamsher. It was assured to be honoured by the Bank, concerned, if deposit made on 24.11.2017. This was presented for its payment, but, was dishonoured by the Bank, vide its Bank Memo, dated 30.11.2017. A notice, 12 All. Babu Khan Vs. State of U.P. & Anr. 193 through counsel, was issued to Opposite party, but, even after service, no compliance was there. Hence, offence, punishable, under Section 138 of N.I. Act was made out and as such a prayer for punishment was made. 5. Learned Magistrate registered it as a complaint case and examined the complainant, under Section 200 of Cr.P.C., by way of affidavit, documentary evidence, original Cheque No. 085984, for Rupees Five Lakh and Fifty thousand, dated 24.11.2017, with its return memo of dishonour and notice issued through counsel, with its postal receipt, was filed and the contention in oral statement was in corroboration with the contention of the complaint, which stood further corroborate by documentary evidence, as above. Hence, a notice, dated 11.12.2017 was issued, which was served and within stipulated period, after non payment of the amount, within fifteen days, this complaint was filed on 4.1.2018. Hence, impugned summoning order, dated 6.6.2019, was passed, whereby, Babu Khan, applicant herein, was summoned for offence, punishable, under Section 138 of Negotiable Instrument Act. 6. Thus, contention of the complaint was in corroboration, with evidence, collected by the Magistrate, during enquiry. There was sufficient ground for passing of impugned summoning order, as above, and the Magistrate was well within its jurisdiction to pass impugned summoning order. The factual aspect, being argued before this Court, is not to be seen by the Court, in exercise of its inherent jurisdiction, under Section 482 of Cr.P.C. 7. Hence, under all above facts and circumstances, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make analytic analysis of factual aspects because the same is a question, to be gone into, during course of trial, by the Trial court. 8. Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844, has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent judgment, in the case of Hamida v. Rashid, (2008) 1 SCC 474, Hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again yet another judgment, in the case of Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court, in the case of Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296, has propounded "High Court can exercise jurisdiction suo motu in the interest of 194 INDIAN LAW REPORTS ALLAHABAD SERIES justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 9. Regarding prevention of abuse of process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494, has propounded "To prevent abuse of the process of the Court, High Court, in exercise of its inherent powers under section 482, could quash the proceedings, but, there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in the case of State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 10. In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly. ---------- (2020)12ILR A194 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 18.11.2020 BEFORE THE HON'BLE DEEPAK VERMA, J. Application U/S 482 No. 13126 of 2020 Smt. Asha ...Applicant Versus State of U.P. ...Opp. Party Counsel for the Applicant: Sri Raghuraj Kishore Counsel for the Opp. Party: A.G.A. Criminal Law- Code of Criminal Procedure, 1973- Section 311- The power conferred under Section 311 Cr.P.C. must be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection- The powers under Section 311 Cr.P.C. is the discretion or the obligation of the Court to summon or recall a witness, but this discretion of the Court cannot be forced to be used by the accused or the prosecution. Applicant here is sister of deceased, who is not the informant nor the witness in the case and prosecution has examined P.W.1, who is real brother and eye witness of the deceased. In application, no reason has been given as to why earlier, application for examination of witness has not been moved and what is relevancy of his examination. The prosecution was given much opportunity to produce evidence and prosecution examined all the witness to whom he wanted to be examined but when Hon'ble High Court passed the order for expedite the trial then to linger on the case, moved present application under Section 311 Cr.P.C. It is well settled law that under Section 311 Cr.P.C. cannot be invoked mere to fill up lacuna of the case but to fair and just decision of the case. No indefeasible right accrues to the prosecution or the defence for examining a witness u/s 311 of the Cr.Pc, as the said power is the discretion of the Court which must be exercised for the just decision of the case and not for allowing the prosecution to fill up the lacunae in its case or for delaying the trial.