# Bhagwati Sharan Dwivedi v. State of U.P. & Anr

- **Citation:** (2025) 2 ILRA 138
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-19
- **Case number:** Application U/S 482 No. 6694 of 2019
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwati-sharan-dwivedi-v-state-of-u-p-anr-54522
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(2) & 482 -
The Negotiable Instruments Act, 1881 -
Sections 138, 143, 144, 145 & 147 -
Application - challenging the summoning order
as well as the orders passed u/s 82 and 83 of
Cr.P.C. - Complaint Case - St.ment u/s 200
Cr.P.C. - plea taken that before issue notices, it
is mandatory on the part of Magistrate, to
conduct an enquiry u/s 202 Cr.P.c. which was so
done summoning order issued - applicability of
section 202 Cr.P.C. in respect of complaints filed
u/s 138 of NI Act, - court finds that, Magistrate
while passing the impugned order has adverted
to the complaint and the St.ment u/s 200
Cr.P.C., - there is no reason for insisting on the
evidence of the witnesses to be taken on oath
and section 202(2) Cr.P.C. shall not come in the
way as held by the Supreme Court (in case of
Mandvi Cooperative Bank Ltd. Vs Nimesh B.
Thakore) which provides that Section 202(2) of
Cr.P.C. is inapplicable to complaints u/s 138 of
NI Act, in respect of examination of witnesses
on oath - held, there is no bar to permit the
evidence of witnesses on behalf of the
complainant on affidavit - hence, being no
reason to believe that the magistrate has not
conducted enquiry to arrive at sufficient ground
to proceed against the accused, present
application devoid it merit and is accordingly,
dismissed. (Para - 8, 9)

Application Dismissed. (E-11)

List of Cases cited:

Mandvi Cooperative Bank Limited Vs Nimesh B.
Thakore (2010)3 SCC 83.

## Text

138 INDIAN LAW REPORTS ALLAHABAD SERIES
under no obligation to accept the final
report of the police, if he does not agree
with the opinion formed by the police.

22. The powers of the police to
make further investigation after lying final
report is recognized under Section 173(8)
Cr.P.C. that is quoted as under :-

Nothing in this section shall be
deemed to preclude further investigation in
respect of an offence after a report under
sub-section (2) has been forwarded to the
Magistrate
and,
where
upon
such
investigation, the officer-in-charge of the
police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports
regarding such evidence in the form
prescribed; and the provisions of subsections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as
they apply in relation to a report forwarded
under sub-section (2).

23. This Section confers express
and specific power upon the officer
incharge of Police Station to carry on
further
investigation
even
after
the
cognizance is taken by the court, while
exercising of powers under Section 173(8)
Cr.P.C. There is no right to direct the
investigating officer for fresh investigation
or re-investigation. If direction for further
investigation is made the investigating
officer will proceed further investigation,
form his opinion on the material collected
during the course of investigation. No
authority can direct the Investigating
Officer either to file charge sheet or final
report therefore there is no power express
or implied, conferred under the code on
supervising authority of police to direct the
investigating officer either to file charge
sheet or final report and he cannot form his
own opinion in this regard and direct the
investigating officer to do the same.

24. To sum up, this Court is of the
view that the formation of opinion by
Superintendent of Police for filing charge
sheet in the case and communicating his
order to the investigating officer for
compliance
cannot
be
said
to
be
inconformity with the provisions of law
but it may amount to interference in the
fair investigation of the case that is
fundamental right of the accused as
established under Articles 14, 21 and 39A of the Constitution of India, therefore,
charge sheet filed by investigating officer
in compliance of illegal order passed by
supervisory authority, the Superintendent
of Police cannot be said to be legal. If
prosecution is allowed to continue on
such charge sheet filed in compliance of
illegal order of supervising authority, it
will amount to abuse of process of the
court.

25. Accordingly, this application is
allowed and the charge sheet alongwith
entire proceedings of the case is, hereby,
quashed.
---------
(2025) 2 ILRA 138
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.02.2025

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482 No. 6694 of 2019

Bhagwati Sharan Dwivedi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Chandan Srivastava, Yogesh Somvanshi
2 All. Bhagwati Sharan Dwivedi Vs. State of U.P. & Anr.
139
Counsel for the Opposite Parties:
G.A., Anand Kumar Verma, Surya Prakash

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(2) & 482 -
The Negotiable Instruments Act, 1881 -
Sections 138, 143, 144, 145 & 147 -
Application - challenging the summoning order
as well as the orders passed u/s 82 and 83 of
Cr.P.C. - Complaint Case - St.ment u/s 200
Cr.P.C. - plea taken that before issue notices, it
is mandatory on the part of Magistrate, to
conduct an enquiry u/s 202 Cr.P.c. which was so
done summoning order issued - applicability of
section 202 Cr.P.C. in respect of complaints filed
u/s 138 of NI Act, - court finds that, Magistrate
while passing the impugned order has adverted
to the complaint and the St.ment u/s 200
Cr.P.C., - there is no reason for insisting on the
evidence of the witnesses to be taken on oath
and section 202(2) Cr.P.C. shall not come in the
way as held by the Supreme Court (in case of
Mandvi Cooperative Bank Ltd. Vs Nimesh B.
Thakore) which provides that Section 202(2) of
Cr.P.C. is inapplicable to complaints u/s 138 of
NI Act, in respect of examination of witnesses
on oath - held, there is no bar to permit the
evidence of witnesses on behalf of the
complainant on affidavit - hence, being no
reason to believe that the magistrate has not
conducted enquiry to arrive at sufficient ground
to proceed against the accused, present
application devoid it merit and is accordingly,
dismissed. (Para - 8, 9)

Application Dismissed. (E-11)

List of Cases cited:

Mandvi Cooperative Bank Limited Vs Nimesh B.
Thakore (2010)3 SCC 83.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1.The petition has been filed under
Section
482
CrPC
for
quashing
summoning order dated 2.12.2015 passed
by Additional Chief Judicial Magistrate,
Court No.2, Lakhimpur Kheri and order
dated 15.5.2019 under sections 82 and 83
CrPC
2. Heard learned counsel for the
petitioner, Mr. Surya Prakash, learned
counsel for the complainant and Mr.
Anurag Verma, learned A.G.A. for the
State.

3.Learned
counsel
for
the
petitioner submits that a complaint under
section 138 Negotiable Instruments Act
(in short, Act) has been filed by the
complainant
and
thereupon,
after
examination of the complainant under
section
200
CrPC,
the
impugned
summoning order has been passed. It is
submitted that after amendment in the
year 2005 in Section 202 CrPC, it is
mandatory on the part of the Magistrate
to conduct an enquiry under section 202
CrPC before issue of process, however, in
spite of the fact that the accused resides
beyond territorial jurisdiction of the
court, it was not so done by the learned
Magistrate while passing the impugned
order of summoning.

4.Learned A.G.A. has opposed
the contention and relying on the
Constitution
Bench
judgment
dated
16.4.2021 of Supreme Court in Suo Motu
Writ Petition (Cri) No.2 of 2020 In
Re:Expeditious trial of cases under
Section 138 of N.I. Act 1881 has
submitted that there is no reason for
insisting of the evidence of the witnesses
to be taken on oath for the purpose of
enquiry. Section 145 of the Act read
with section 202 of the Code has been
considered by the Supreme Court in the
aforesaid judgment and it has been held
that section 202 sub section (2) of the
Code is inapplicable to the complaints
under section 138 of the Act in respect of
examination of witnesses on oath. It has
140 INDIAN LAW REPORTS ALLAHABAD SERIES
been further held that evidence of witnesses
on behalf of the complainant shall be
permitted on affidavit. It is also held that if
the Magistrate holds an inquiry himself, it
is not compulsory that he should examine
witnesses and in appropriate cases, the
Magistrate can examine documents for
satisfaction as to the sufficiency of grounds
for proceeding under section 202 (para 12
emphasised). \

 Mr. Verma has further relied on a
judgment of Supreme Court in Mandvi
Cooperative Bank Limited versus Nimesh
B. Thakore (2010)3 SCC 83 (Relevant
paras 20, 21, 24 and 25) and submits that
the provisions of Sections 143, 144, 145
and 147 expressly depart from and override
the provisions of the Code. The said
provisions lay down a kind of a special
code for the trial of offences under Chapter
XVII of the Act and those sections were
inserted in the Act by way of Negotiable
Instruments
(Amendment
and
Miscellaneous Provisions) Act, 2002 to do
away with all the stages and processes in a
regular criminal trial that normally cause
inordinate delay in its conclusion and to
make the trial procedure as expeditious as
possible without in any way compromising
on the right of the accused for a fair trial.

5.Learned
counsel
for
the
complainant
has
submitted
that
the
statement of the complainant under section
200 CrPC along with an affidavit has been
filed
before
the
Court
below
and
considering the said statement of the
complainant, the impugned order has been
passed.

6.A perusal of the record as also
the judgment dated 16.4.2021 of Supreme
Court shows that in order to settle the law
due to divergence of opinion taken by
various High Courts relating to the
applicability of section 202 in respect of
complaints filed under section 138 of the
Act as in some cases, it has been held that it
is mandatory for the Magistrate to conduct
an inquiry as provided in section 202 of the
Code before issuance of process in
complaints filed under section 138 of the
Act whereas contrary view has been
expressed in some other cases, the Supreme
Court in paras 11 and 12 has laid down the
law regarding the subject.

The Supreme Court has also
considered Section 145 of the Act which
provides that evidence of the complainant
may be given by him on affidavit, which
shall be read in evidence in any inquiry,
trial or other proceeding. Section 145 of
the Act is extracted below :

"145. Evidence on affidavit.?
 (1)Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the evidence
of the complainant may be given by him on
affidavit and may, subject to all just
exceptions be read in evidence in any
enquiry, trial or other proceeding under the
said Code.

(2)The Court may, if it thinks fit,
and shall, on the application of the
prosecution or the accused, summon and
examine any person giving evidence on
affidavit as to the facts contained therein."
 It has been held that section 145
of the Act is an exception to Section 202 in
respect of examination of the complainant
by way of an affidavit. There is no specific
provision in relation to examination of the
witnesses also on affidavit in Section 145.
Thus, it has been held that Section 145 had
been inserted in the Act, with effect from
the year 2003, with the laudable object of
speeding up trials in complaints filed under
2 All. Bhagwati Sharan Dwivedi Vs. State of U.P. & Anr.
141
section 138 of the Act. In case the evidence
of the complainant may be given by him on
affidavit, there is no reason for insisting on
the evidence of the witnesses to be taken on
oath. Thus, the law has been summarised
on a holistic reading of section 145 along
with section 202 of the Code and it has
been held that section 202(2) of the Code is
inapplicable to complaints under section
138 in respect of examination of witnesses
on oath. The evidence of witnesses on
behalf
of
the
complainant
shall
be
permitted
on
affidavit.
In
case
the
Magistrate holds an inquiry himself, it is
not compulsory that he should examine
witnesses. Relevant part of para 12 of the
judgment is extracted below :

"12.................Section 145 of the
Act is an exception to Section 202 in
respect of examination of the complainant
by way of an affidavit. There is no specific
provision in relation to examination of the
witnesses also on affidavit in Section 145.
It becomes clear that Section 145 had been
inserted in the Act, with effect from the
year 2003, with the laudable object of
speeding up trials in complaints filed under
Section 138. If the evidence of the
complainant may be given by him on
affidavit, there is no reason for insisting
on the evidence of the witnesses to be
taken on oath. On a holistic reading of
Section 145 along with Section 202, we
hold that Section 202 (2) of the Code is
inapplicable to complaints under Section
138 in respect of 13 | P a g e examination
of witnesses on oath. The evidence of
witnesses on behalf of the complainant
shall be permitted on affidavit. If the
Magistrate holds an inquiry himself, it is
not compulsory that he should examine
witnesses.
In
suitable
cases,
the
Magistrate can examine documents for
satisfaction as to the sufficiency of
grounds for proceeding under Section
202.

7.Thus, in view of the aforesaid
pronouncement of the Supreme Court,
argument of learned counsel for the
petitioner that enquiry as contemplated
under section 202 CrPC has not been
conducted by the Magistrate as the witness
has not been examined on oath by him
loses
its
ground.
Statement
of
the
complainant under Section 202 CrPC has
been filed which is an evidence in terms of
section 145 of the Act. It is thus evident
that Sub section (2) of Section 202 is
inapplicable to the complaints under
section 138 of the Act in respect of
examination of witnesses on oath.

8.In
the
present
case,
the
Magistrate while passing the impugned
order has adverted to the complaint and the
statement under section 200 of the Code.
The complainant has filed his statement
under section 200 CrPC, which has been
considered by the Magistrate and passed
the impugned order. Learned counsel for
the complainant has produced before this
Court copy of the affidavit of the
complainant. There is no reason for insisting
on the evidence of the witnesses to be taken
on oath and section 202(2) shall not come
in the way as held by the Supreme Court
in the judgment referred to above which
provides that Section 202(2) of the Code
is inapplicable to complaints under
section 138 in respect of examination of
witnesses on oath. There is no bar to
permit the evidence of witnesses on
behalf of the complainant on affidavit. I
find no reason to believe that the
magistrate has not conducted enquiry to
arrive at sufficient ground to proceed
against the accused.
142 INDIAN LAW REPORTS ALLAHABAD SERIES
9.In view of what has been stated
herein above, I do not find any merit in the
petition. The petition being devoid of merit
is dismissed.

The pending application, if any
stands disposed of.
---------
(2025) 2 ILRA 142
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.02.2025

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Application U/S 482 No. 8107 of 2022

Ram Lotan Vishwakarma & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sachin Chaturvedi

Counsel for the Opposite Parties:
G.A., Amit Kumar Singh

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - The Bhartiya Nagarik
Suraksha Sanhita, 2023 - Section 528 -
Protection of Women from Domestic
Violence Act, 2005 - Section 12 -
Allahabad High Court Rules, 1952, -
Chapter V Rule 6, - Constitution of India,
1950 - Article 226 & 227 - Application U/s
482 - to assail the proceeding initiated
under the provisions of the D.V. Act, 2005
- Preliminary Objection of Maintainability -
in view of the conflicting decisions of Coordinate Benches of this Court - Invocation of
Inherent Power - Conflicting Decisions of
the Co-ordinate Benches on the issue of
maintainability of a petition under Section 482
Cr.P.C for quashing an order passed on notice
issued under Section 12 of D.V. Act, 2005 - in
case of Smt. Suman Mishra, this court held
that the application under Section 482 Cr.P.C
was not maintainable - in case of Sandeep
Kishor, another Co-ordinate Bench held that an
application filed under Section 482 Cr.P.C would
not lie against an order passed under Section 12
of the D.V. Act, 2005 - in Case of Devendra
Agarwal, another Co-ordinate Bench held that
an application under Section 482 Cr.P.C is
maintainable - Referral to Larger Bench -
court referred the matter to a larger Bench for
reconsideration to settle the legal position and
bring about certitude on the subject - matter to
be placed before the Hon'ble Chief Justice for
requisite orders - The instant application shall
be adjourned by the trial court till final outcome
of the reference. (Para - 19, 20, 21, 23)

Application Pending. (E-11)

List of Cases cited:

1. Smt. Suman Mishra Vs The St. of U.P -
Application U/S 482 No. 6975 of 2013 decided
on 31.07.2024,

2. Sandeep Kishore & anr. Vs St. of U.P -
Application U/s No. 11130 of 2024 - decided on
09.08.2024,

3. Devendra Agarwal & ors.Vs the St. of U.P. &
anr. - Application U/S 482 No.18994 of 2024
decided on 27.11.2024,

4. P. Pathamanathan Vs Monica : (2021) SCC
Online Mad 8731,

5. Kunapareddy Vs Kunapareddy Swarna Kumari
: (2016) 11 SCC 774,,

6. Kamatchi Vs Laxmi Narayanan: (2022) 15
SCC 50,

7. Dinesh Kumar Yadav Vs St. of U.P: 2016 SCC
OnLine All 3848,

8. St. of Bihar Vs Kalika Kuer : (2003) 5 SCC
448,

9. Mary Pushpam Vs Telvi Curusumary &
ors.(2024) 3 SCC 224,

10. UP Power Corporation Ltd. Vs Rajesh Kumar
(2012) 7 SCC 1