# Data Ram & Ors v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-13
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/data-ram-ors-v-state-of-u-p-anr-49416
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 425, 504 & 506 - Against
Summoning
order
-
Code
of
Criminal
Procedure, 1973 - Section 200 - Respondent
no. 2's grievance is that his FIR was not lodged,
his application to SSP ignored and his
application under Section 156(3) CrPC treated
as complaint - Complaint disclosed offences
under Section 436 IPC and other sections
regarding loot of household articles and
money, not considered by Magistrate,
petitioners were summoned under limited
sections - Respondent no. 2 could not seek
redress
before
district
court,
while
petitioners pursued prolonged litigation of
their choice - Despite engaging counsel,
respondent no. 2 received no effective
representation, indicating his inability to
protest petitioners - Thus, at stage of
summoning, no need to pass detailed
order - Impugned order, being based on
complaint's contents and evidence, cannot
be termed non-speaking - Petition, being
devoid of merit and filed with ulterior
motive to deny justice to respondent no. 2
- Remedy for petitioners is to move
application for discharge at stage of
framing of charge or recording of St.ment.
(Para 14, 15, 21)

Petition dismissed. (E-13)

List of Cases cited:

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES
19.11.2019 and that it was never returned
to the complainant. In view of the above
statement in the complaint and in view of
the papers produced viz, the cheque, the
Bank memo, demand notice, the disclosure
of material dates like, date of dishounor,
date of sending the notice, the date on
which 15 days elapsed, the date of the
filing of the complaint clearly and
explicitly mentioned in para no. 12 of the
complaint, there remains no doubt that the
petition is wholly without merit. It may
specifically be noted that para no. 12 of the
complaint discloses a date of service of notice as
well, a fact which has been conveniently ignored
by the accused petitioner all the while. In my
view, an attempt to stall the proceedings has been
made on the basis of non-existent ground.

12. I do not find any infirmity, illegality or
irregularity in the summoning order dated
10.12.2020 as well as the order dated
20.01.2023. Therefore, this petition is hereby
dismissed.
----------
(2023) 11 ILRA 806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Matters Under Article 227 No. 5460 of 2023(Criminal)

Data Ram & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava-III, Sri Pradeep Kumar

Counsel for the Respondents:
G.A., Sri Rakesh Kumar Rathore, Sri Sanjeev
Kumar
Criminal Law - Indian Penal Code, 1860 -
Sections 323, 425, 504 & 506 - Against
Summoning
order
-
Code
of
Criminal
Procedure, 1973 - Section 200 - Respondent
no. 2's grievance is that his FIR was not lodged,
his application to SSP ignored and his
application under Section 156(3) CrPC treated
as complaint - Complaint disclosed offences
under Section 436 IPC and other sections
regarding loot of household articles and
money, not considered by Magistrate,
petitioners were summoned under limited
sections - Respondent no. 2 could not seek
redress
before
district
court,
while
petitioners pursued prolonged litigation of
their choice - Despite engaging counsel,
respondent no. 2 received no effective
representation, indicating his inability to
protest petitioners - Thus, at stage of
summoning, no need to pass detailed
order - Impugned order, being based on
complaint's contents and evidence, cannot
be termed non-speaking - Petition, being
devoid of merit and filed with ulterior
motive to deny justice to respondent no. 2
- Remedy for petitioners is to move
application for discharge at stage of
framing of charge or recording of St.ment.
(Para 14, 15, 21)

Petition dismissed. (E-13)

List of Cases cited:

1. Lalan Kumar Singh & ors. Vs St. of Mah.,
2022 LiveLaw (SC) 833

2. Anil Saran Vs St. of Bihar, (1995) 6 SCC 142

3. Kanti Bhadra Shah Vs St. of W.B., AIR 2000
SC 522

4. M/s Pepsi Foods Ltd. Vs Special Judicial
Magistrate, AIR 1998 SC 128

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Pradeep Kumar,
advocate holding brief of Sri Arvind
Srivastava,
learned
counsel
for
the
11 All. Data Ram & Ors. Vs. State of U.P. & Anr.
807
petitioners, learned AGA for the State and
perused the record.

2. This petition under Article 227 of
the Constitution has been moved to set
aside the entire proceedings of Criminal
Complaint Case No.138 of 2021 (Ram
Sevak Vs. Data Ram and others) pending
before the Additional Civil Judge (JD),
Court No.5/Judicial Magistrate, Mainpuri.

3. The petitioners have taken ground
that the impugned summoning order dated
05.03.2022 is non est and bad in law as the
concerned court has passed the impugned
order without there being any subjective
satisfaction of committance of offence even
without recording the prima facie case
while no offence is made out against the
petitioners. The court below has also
overlooked
that
there
are
serious
contradictions in the complaint and the
statements of the witnesses. There is no
medical examination and no injury was
caused to the respondent no.2 resulting to
as alleged incident which prima facie
creates doubt the allegations made in the
complaint. Respondent no.2 has filed a
frivolous complaint against the petitioners
to pressurise them so that they do not resist
his illegal possession. The plot no.81 is a
very big land and the share of the
petitioners is only to the extent of an area
of 0.4050 hectare and the petitioners have
no concern about the rest of the plot no.81.
No incident had taken place on the spot that
too in the morning at 04:00 a.m. which is
quite impossible because in the month of
February mostly the sun rises at around
06:00 am. It is very much surprising that
the petitioners got awake at around 04:00
a.m. and gone to the house of the
respondent. The story is totally concocted
and which cannot be believed. The
complaint was filed after more than two
months. The police report dated 23.04.2016
did not disclose any such incident. The said
report was totally ignored or disbelieved by
both the courts below. There is a major
contradiction in the statement of the
complainant under Section 200 CrPC as he
had only stated that the petitioners only
slapped them and taken away the house
hold articles alongwith Rs.2,000/- and put
fire but nowhere stated that any injury was
caused to him and his family members. On
the other hand the witnesses namely PW-1
and PW-2 added some extra version in the
their statements that the petitioners were
armed with lathi and danda and the
petitioners beaten brutally but nowhere
stated that what injury has been caused to
the complainant and his family members.

4. The Apex Court in Lalan Kumar
Singh
and
others
Vs.
State
of
Maharashtra, 2022 LiveLaw (SC) 833,
specially held that the issuance of process
is not a mere formality. The Magistrate is
required to apply his mind as to whether
sufficient ground for proceedings exist in
the case or not and the formation of such
opinion is required to be stated in the order
itself. In absence of any right and title over
the land in question under what authority
the
complainant
claimed
to
be
in
possession over the land. The entire story is
bogus and does not require issuance of
process against the petitioners. Hence, the
impugned order be set aside.

5. In brief, facts of the case are that
the respondent no.2, complainant moved an
application
Section
156(3)
CrPC
on
12.04.2016 to lodge an FIR against the
petitioners on the ground that he had kept a
hut on his land khasra no.81 area 0.607
hectare and had also kept household
articles therein. On 16.02.2016 at about
04:00 a.m, Dataram, Vijay Pal, Mohar Pal
808 INDIAN LAW REPORTS ALLAHABAD SERIES
and Dharm Pal sons of Raj Kumar, Annu
and their family members reached there,
abused and directed to vacate the land. The
respondent no.2 denied to vacate the land
and when he said that the land is in his
name where he was pulling on his life with
his family, the accused persons started
beating the applicants, his wife and his
children. They took away the house hold
articles alongwith box in which he had kept
Rs.2,000/-
and
also
two
cots,
two
mattresses, two quilts, pots, one pair of
silver anklet and other household materials
and put the hut into fire. They also
threatened that if he again informed the
police, he and his family members would
be killed. He visited the police station twice
but his report was not lodged. The accused
persons are the musclemen who often
restrain his way and the family members
also and threaten to kill them if they did not
vacate the land in question. The applicant
has also mentioned name of the witnesses
as Rajvir, Anil and his daughters Mamta,
Pratima and other eye-witnesses. The
complainant further averred that he had
given a letter to SSP on 01.04.2016 through
post but no action was taken. Hence, he has
moved the aforesaid application.

6. A report was called for from the
concerned
police
station
which
was
submitted on 23.04.2016. The application
was converted into complaint and the
statement of the complainant Ram Sevak
under Section 200 CrPC and the statements
of PW-1, Anil Kumar and PW-2, Rajvir
were recorded under Section 202 CrPC.
After hearing the argument, the accused
persons were summoned under Sections
323, 425, 504 and 506 IPC. Being
aggrieved, the petitioners had preferred a
Criminal Revision No.33 of 2022 which
was dismissed by the learned Sessions
Judge on 19.04.2023. Being aggrieved by
both the orders, the petitioners have
preferred this petition.

7. Learned counsel for the petitioners
have argued that since the police report was
not in favour of the complainant hence
there was no occasion to summon the
petitioners as accused.

According to this Court, a report
summoned with regard to Section 156(3)
CrPC is only to know as to whether any
FIR has been lodged on the facts of the
application or not. The police report cannot
be basis to reject or allow an application
under Section 156(3) CrPC.

8. So far as the non-rising and
reaching on the place of occurrence at
about 04:00 a.m. in the month of February
is concerned, this Court is not in
consonance with the opinion of the learned
counsel for the petitioners. Even in winter
season villagers awake by 04:00 a.m. and
start agricultural works, ploughing the
fields and irrigating the crops. It is also
noteworthy that an accused would choose
the time when there would be least
resistance.

9. So far as the delay in filing the
complaint is concerned, from the records it
reveals that the applicant had approached
the police station twice after the incident
but his FIR was not lodged. It is very much
clear from the police report that after the
alleged occurrence the police had not
visited the place of occurrence. It is
nowhere mentioned in the police report that
before sending the report to the concerned
Magistrate, the concerned police had
inspected the place of occurrence. If the
petitioners rely on the police report, it is not
absolutely in favour of the petitioners. In
the very report it has also been mentioned
11 All. Data Ram & Ors. Vs. State of U.P. & Anr.
809
that the property in question belongs to
both
the
parties
i.e.
the
applicantrespondent no.2 and the petitioner no.1,
Data Ram. It is also noteworthy that the
petitioners are claiming only an area of
0.4050 hectare of khasra no.81. It has been
mentioned by the petitioners in their
criminal revision No.33 of 2022 that the
area of khasra no.81 is about 26 bigha and
in which in addition to the complainant
(respondent no.2), revisionist and other
villagers are also in possession. It has also
been mentioned by the petitioners that the
survey of the aforesaid khasra number has
been completed and he was in possession
since 2008. He has filed extract of khatauni
and khasra which shows that petitioner no.1
is the bhumidhar with non-transferable
rights of khasra plot no.81/4 area 0.405
hectare in which mustard had been sown in
1427 fasli. The petitioners did not file the
khatauni and khasra with regard to the area
which belongs to the respondent no.2. No
map has been filed by the petitioners to
ascertain the situation of their land. The
petitioners have accepted in their revision
that the respondent no.2 is also in
possession over khasra no.81. It has not
been said by the petitioners either in the
revision or before this Court that on the
alleged place of occurrence, they had sown
mustard and the same has also not been
mentioned in the police report.

10. It has been averred by the
petitioners that there are variations in the
statements
and
the
version
of
the
complaint. This Court has gone through the
records and has not found any material
variation in it.

11. So far as the lack of injury report
is concerned, since it is not a case of any
grievous hurt and the learned Magistrate
has found it to be a case under Section 323
IPC with regard to the injury for which
injury report is not very much required.
Even if a person is beaten by legs and fists
and some complaint of pain arises, the
person responsible may be summoned
under Section 323 IPC.

12. Section 425 IPC is about
mischief. Section 504 IPC is about
intentional insult with an intention to
provoke breach of peace and Section 506
IPC defines criminal intimidation and
threat to cause death or grievous hurt, etc.
For these sections injury report is not
required
and
only
oral
evidence is
sufficient if the same is trustworthy.

13. From the above discussion, it has
also been proved that the petitioners and
the respondent no.2, both the parties have
interest in khasra no.81. It is a matter of
evidence as to whether the alleged
occurrence had been caused by the
petitioners or not. The law is this that even
a trespasser cannot be evicted and no force
can be applied against him without
adopting the due course of law. As per the
version of the complaint and the statement
under Sections 200 and 202 CrPC, a prima
facie case to summon the petitioners as
accused is certainly made out.

14. In the facts and circumstances of
the case there should be grievance to the
respondent no.2 that firstly his FIR had not
been lodged, his application to the SSP was
not considered and when he moved an
application under Section 156(3) CrPC to
lodge the FIR, the same was also not
accepted but it was treated to be a
complaint. It is also noteworthy that the
application/complaint bears the ingredients
of Section 436 IPC and other sections
regarding loot of the household articles and
money but the same was also not
810 INDIAN LAW REPORTS ALLAHABAD SERIES
considered by the concerned Magistrate
and the petitioners were simply summoned
under
the
aforesaid
sections.
The
respondent no.2 could not approach the
district court for the aforesaid grievances
but the petitioners started a long legal battle
and are utilising the hierarchy of the courts
of their choice. In this case the respondent
no.2 had engaged counsel Sri Rakesh
Kumar Rathor and Sri Sanjiv Kumar
Rathor
but
they
neither
filed
any
objection/counter affidavit nor attended the
Court when the case was taken up. It
proves that the respondent no.2 is unable to
contest/protest the petitioners.

15. According to this Court at the
time of passing of summoning order there
is no need to pass a detailed order. The
impugned order is based on the evidence
and the contents of the complaint. The
impugned order cannot be said to be a nonspeaking order.

16.

Learned
counsel
for
the
petitioners relied on Lalan Kumar Singh
(supra) in which the Apex Court has held
that while passing the summoning order
under Section 204 CrPC, the Magistrate is
required to apply his mind as to whether
sufficient ground for proceeding with the
case exists or not.

In paragraphs-28 to 30 of the
aforesaid judgment the principles in this
regard have been laid down in the fact and
circumstances of the aforesaid case where
no formal summoning order was passed
and the process were issued. The aforesaid
proceeding relates about the summoning of
a director and the matter was with regard to
company law and an offence with regard to
the Drug and Cosmetics Act, 1940 where
no formal summoning order was passed.
The order passed by the learned Magistrate
is being reproduced in paragraph-26 of the
judgment which is as under:

"Take
entry in
register
of
criminal cases and issue summons against
accused to ask them to appear in the
court."

17. Here the case is quite different
and is mostly based on the oral and ocular
evidence
where
a
proper
speaking
summoning
order
has
been
passed.
Therefore, this Court is of the view that the
principles laid down in the aforesaid case
cannot be applied blindly in favour of the
petitioners.

18. In Anil Saran Vs. State of Bihar,
(1995) 6 SCC 142, it has been held that at
the stage of issue of process, it is not for
consideration as to whether the offence has
been made out and what defences are open
to the accused after the issue of process.

19. In Kanti Bhadra Shah Vs. State
of West Bengal, AIR 2000 SC 522, it has
been held that it is quite unnecessary to
write a detailed order at the time of issuing
process.

20. Though in M/s Pepsi Foods Ltd.
Vs. Special Judicial Magistrate, AIR
1998 SC 128, it has been held that the
Magistrate has to carefully scrutinize
the evidence to find out the truthfulness
or otherwise of the allegations and then
examine if there is prima facie evidence
about commission of the offence before
issuing
summons
to
the
accused
persons. In this case the learned
Magistrate had already examined the
averments
of
the
complaint
and
evidence thereon and thereafter has
summoned the petitioners to face the
trial.
11 All. Top Filling Point Proprietor Rakesh Agarwal, Rampur Vs. State of U.P. & Anr.
811

21. According to this Court, the
petition is devoid of merit and has been
filed with ulterior motive only to deny the
justice to the respondent no.2 and not to
take legal recourse provided to him under
the law. The remedy is very much open for
the petitioners to move an application for
discharge at the time of framing of charge
or at the time of recording of statement as
the case may be. Thus, the petition is liable
to be dismissed accordingly.

O R D E R

22. The petition is dismissed
accordingly. The summoning order and the
order passed by the revisional court are
affirmed.
----------
(2023) 11 ILRA 811
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 7011 of
2023(Civil)

Top
Filling
Point
Proprietor
Rakesh
Agarwal, Rampur ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Amrendra Nath Rai, Sri Sanjay Singh

Counsel for the Respondents:
G.A., Sri Abhishek Tiwari, Sri Mahendra
Pratap Singh, Sri Rohit Singh, Sri Devesh
Singh

Civil Law - Negotiable Instruments Act,
1881 - Section 138 - Against Summoning
Order - Code of Criminal Procedure, 1973 -
Section 200 - Complainant filed case
under
Section
138
of
Negotiable
Instruments
Act,
producing
evidence
under
Section
200
Cr.P.C.,
including
cheque for ₹2,75,000 which was returned
by Bank with remark "funds insufficient,"
return memo and demand notice - Trial
court summoned accused, revisional court
upheld order, dismissing revision - From
perusal of order, it is noticed that
revisional court observed absence of
specific date regarding service of demand
notice but found from track consignment,
paper on record which belied revisionist's
contention - Thus trial court appears to
have presumed service of demand notice -
Even if track consignment report is not
filed, court may presume notice was
shown to have been sent by registered
post to correct address in ordinary course
of business. (Para 3, 6, 10)

Petition dismissed. (E-13)

List of Cases cited:

1. Deepak Kumar & anr. Vs St. of U.P. & anr.;
2007 (2) Civil Court Cases 467 (Allahabad) (Para
7)

2. Dashrathbhai Trikambhai Patel Vs Hitesh
Mahendrabhai Patel & anr.; 2022 (4) Civil Court
Cases 279 (S.C.)

3. Ajeet Seeds Limited Vs K. Gopala Krishnaiah;
(2014) 12 SCC 685

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Sanajy Singh, learned
counsel for the petitioner, Sri Mahendra
Pratap
Singh,
learned
counsel
for
respondent no. 2 and learned AGA for the
State.

2. This petition under Article 227 of
the Constitution has been filed with a
prayer to set aside the order dated
19.07.2022, whereby the petitioner was
summoned under section 138 of the