# Desh Deepak Dwivedi & Ors v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Application U/S 482 No. 14988 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/desh-deepak-dwivedi-ors-v-state-of-u-p-anr-45433
- **Pages:** 4

## Headnote

(A) Criminal law - Indian Penal Code,
1860 - Sections 498A, 323, 504, 506 -
3/4 Dowry prohibition Act,1961 - demand
of dowry, cruelty with regard to it and
assault with abuse of criminal intimidation
- Code of criminal procedure, 1973 -
Section
156
-
investigation
in
to
cognizable
cases
-

Section
200
-
Examination of complainant , Section 202
- Postponment of issue of process ,
Section 203 - Dismissal of complaint -
Section 204 - issue of process - order
passed by the Magistrate was against the
proposition of law on the point of
summoning u/s 204 Cr.P.C. while deciding
the Criminal Revision - impugned order of
the learned Sessions Judge, is well in
accordance with law - C.J.M. rightly set
aside the order.

Divorce
petition
filed
by
applicant
-
allegations - complaint has been filed with
contention of demand of dowry, cruelty
with regard to it, ill-treatment as well as
assault, abuse and intimidation - contention
of complainant very well reiterated in the
statement
u/s
200
Cr.P.C.
-
further
corroborated by two witnesses in their
statements recorded u/s 202 Cr.P.C. -
enquiry u/s 202(1) Cr.P.C. by a Gazetted
Police
Officer
was
got
conducted
by
Magistrate and report of Gazetted Police
Officer i.e. Dy. S.P. - attempt for its
disposal by way of mediation by District
Probation Officer made - unsuccessful
.Para - 8

HELD:- The Officer, presiding as C. J. M.,
who has passed the order dated 17.3.2020
in Complaint Case is either not in a position
to
appreciate
law
or
visualize
the
observations made by learned Sessions
Judge,
or
is
with
some
extraneous
influence.
Hence
the
learned
Sessions
Judge, is being expected to make file to
some
other
Court
of
Magistrate
for
disposal.Para - 10

Application u/s 482 Cr.P.C. dismissed.
(E -7)
11 All. Desh Deepak Dwivedi & Ors. Vs. State of U.P. & Anr.
81
List of Cases Cited:-

Kooli Saseendran & ors. Vs St. of Ker. Etc. ,
Criminal Appellate Jurisdiction in Criminal Appeal
No.(s) 1874-1875 of 2010

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES
rights of women guaranteed under the
Constitution, who are victims of violence of
any kind occurring within the family and
for
matters
connected
therewith
or
incidental thereto. Hence under this Act
purpose is to protect women from violence
of any kind either direct or incidental
therewith. Hence the very purpose of this
Act is to protect women from domestic
violence. Hence the whole act is to be seen
under the present scenario.

8. The accusation is of domestic
violence by mother-in-law and father-in-law
and that is against widowed lady with her two
minor daughters. Hence the very contention
said in the application is to be adjudged by
the Magistrate and for that an opportunity of
adducing evidence is always needed. This
court may never give direction for a decision
without giving opportunity of hearing or
having evidence. Hence there is no abuse of
process of law. Accordingly, this application
merits its dismissal.

9. Dismissed as such.
----------
(2020)11ILR A80
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 14988 of 2020

Desh Deepak Dwivedi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anand Prakash Yadav, Kavita Yadav, Sri
Krishna Nand Yadav

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 498A, 323, 504, 506 -
3/4 Dowry prohibition Act,1961 - demand
of dowry, cruelty with regard to it and
assault with abuse of criminal intimidation
- Code of criminal procedure, 1973 -
Section
156
-
investigation
in
to
cognizable
cases
-

Section
200
-
Examination of complainant , Section 202
- Postponment of issue of process ,
Section 203 - Dismissal of complaint -
Section 204 - issue of process - order
passed by the Magistrate was against the
proposition of law on the point of
summoning u/s 204 Cr.P.C. while deciding
the Criminal Revision - impugned order of
the learned Sessions Judge, is well in
accordance with law - C.J.M. rightly set
aside the order.

Divorce
petition
filed
by
applicant
-
allegations - complaint has been filed with
contention of demand of dowry, cruelty
with regard to it, ill-treatment as well as
assault, abuse and intimidation - contention
of complainant very well reiterated in the
statement
u/s
200
Cr.P.C.
-
further
corroborated by two witnesses in their
statements recorded u/s 202 Cr.P.C. -
enquiry u/s 202(1) Cr.P.C. by a Gazetted
Police
Officer
was
got
conducted
by
Magistrate and report of Gazetted Police
Officer i.e. Dy. S.P. - attempt for its
disposal by way of mediation by District
Probation Officer made - unsuccessful
.Para - 8

HELD:- The Officer, presiding as C. J. M.,
who has passed the order dated 17.3.2020
in Complaint Case is either not in a position
to
appreciate
law
or
visualize
the
observations made by learned Sessions
Judge,
or
is
with
some
extraneous
influence.
Hence
the
learned
Sessions
Judge, is being expected to make file to
some
other
Court
of
Magistrate
for
disposal.Para - 10

Application u/s 482 Cr.P.C. dismissed.
(E -7)
11 All. Desh Deepak Dwivedi & Ors. Vs. State of U.P. & Anr.
81
List of Cases Cited:-

Kooli Saseendran & ors. Vs St. of Ker. Etc. ,
Criminal Appellate Jurisdiction in Criminal Appeal
No.(s) 1874-1875 of 2010

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. The applicants Desh Deepak
Dwivedi and three others, by means of this
application under Section 482 Cr.P.C., have
invoked the inherent jurisdiction of this
Court with prayer to quash order dated
28.7.2020 passed by the Sessions Judge,
Maharajganj, in Criminal Revision No. 44
of 2020, Kumkum Dwivedi Vs. Desh
Deepak Dwivedi and others, arising out of
order dated 17.3.2020 passed by C.J.M.,
Maharajganj, in Criminal Complaint Case
No. 379 of 2019, Kumkum Dwivedi Vs.
Desh Deepak Dwivedi and others, under
Sections 498A, 323, 504, 506 I.P.C. and 3/4
D.
P.
Act,
P.S.
Paniyara,
district
Maharajganj.

2. Heard learned counsel for the
applicants and learned AGA. Perused the
record.

3. Learned counsel for applicants
argued that Criminal Complaint Case No.
379 of 2019, Kumkum Dwivedi Vs. Desh
Deepak Dwivedi and others, under Sections
498A, 323, 504, 506 I.P.C. and 3/4 D. P.
Act, P.S. Paniyara, district Maharajganj,
was filed by O.P. No. 2 against applicants
Desh Deepak Dwivedi and three others
with contention of demand of dowry,
cruelty with regard to it and assault with
abuse
of
criminal
intimidation
on
31.10.2019. This was by way of an
application
u/s
156(3)
Cr.P.C.
The
Magistrate took cognizance over it and
registered it as a complaint case. An
enquiry u/s 200 and 202 Cr.P.C. was made
by C.J.M., Maharajganj, and then after
complaint was dismissed u/s 203 Cr.P.C.
with finding that there was no prima-facie
case for summoning. Rather this complaint
was with a view to harass the husband and
in-laws by complainant. This order was
challenged before revisional court of
learned
Sessions
Judge,
Maharajganj,
wherein the then learned Sessions Judge
allowed the revision, thereby quashed the
order of Magistrate and remanded the file
back for fresh consideration of same.
Learned C.J.M., in compliance of order of
learned revisional court, decided to have an
enquiry by a Gazetted Officer of Police u/s
202(1) Cr.P.C. and it was directed to
Superintendent of Police, Maharajganj, for
getting enquiry by a Gazetted Police
Officer
of
the
occurrence.
Deputy
Superintendent of Police, Maharajganj,
submitted his report in compliance of order
of Court of C.J.M. with finding of undue
harassment by complainant to her in-laws
and contradictions in the date of alleged
assault. On the basis of evidence on record,
learned
C.J.M.
again
dismissed
the
complaint u/s 203 Cr.P.C. Complainant
filed subsequent Revision No. 44 of 2020
before learned revisional court of District
& Sessions Judge, Maharajganj, wherein
again revision was allowed and order of
learned C.J.M. was set aside with a
direction for re-hearing and decision.
Meaning thereby once learned C.J.M. has
made compliance of direction of learned
revisional court and found no ground for
passing a summoning order u/s 204 Cr.P.C.,
again this revision was allowed with the
same direction. This remand order was
passed under abuse of process of law and
was not to be made by learned revisional
court in view of law laid down by Apex
Court in Criminal Appellate Jurisdiction
in Criminal Appeal No.(s) 1874-1875 of
2010, Kooli Saseendran & others Vs. State
of Kerala Etc., wherein the Apex Court has
82 INDIAN LAW REPORTS ALLAHABAD SERIES
held that remand in criminal case should
not be usual but sparingly exercised in
cases where it is utmost necessary. Hence
this application with above prayer.

4. Learned AGA has vehemently
opposed the application.

5. Having heard learned counsel for
both sides and gone through the material
placed on record, it is apparent that the
learned C.J.M. has not exercised his
judicial mind in passing impugned order.
Rather the report of Dy. S.P. has been taken
as basis and finding is on above report with
a categorical mention that in the opinion of
the learned Magistrate, no ground is there
for passing summoning order, whereas this
court as well as Apex Court in several
decisions have held that wherever there is
judicial discretion or satisfaction of a Court
for passing a judicial order, this discretion
or satisfaction should be of objective
satisfaction i.e. apparent and coming out
from the record i.e. it should not be
subjective satisfaction of Presiding Judge.
Hence opinion of a Magistrate is not a
governing statute. Rather the opinion of a
court should be based on the evidence
before it and analytical analysis under
judicial canon is the deciding factor.

6. The Magistrate was expected to
make analysis of evidence collected by him
u/s 200 and 202 Cr.P.C. in which enquiry
report made by police or any other
authority u/s 202(1) of Cr.P.C. is included
and on the whole evidence, the appreciation
is to be made as to whether a prima-facie
case is made out or not.

7. Learned Sessions Judge, by way of
writing many citations in its decision, has
decided criminal revision no. 92 of 2019
with specific proposition of law that there
is no need of analytical analysis of
evidence at the time of passing order u/s
204 Cr.P.C. Rather a prima-facie case is to
be seen as to whether a case is to be
proceeded with or not. At that juncture
meticulous analysis with a view that
evidence is sufficient for basing conviction
or not, is not to be made. But this legal
proposition and observation of learned
Sessions
Judge
was
not
taken
into
consideration
by
learned
C.J.M.,
Maharajganj, in the impugned order, which
was challenged in subsequent Criminal
Revision No. 44 of 2020 and learned
Sessions Judge has set aside the order of
the learned C.J.M.

8. From the very perusal of factual
matrix, it is undisputed that complainant
Smt. Kumkum Dwivedi is legally married
wife of Desh Deepak Dwivedi. There are
strained relations in between. Desh Deepak
Dwivedi has filed a suit for dissolution of
marriage before Family Court and the same
is pending. Allegations are there. A
previous complaint to District Magistrate,
Gorakhpur,
was
made
by
Kumkum
Dwivedi
regarding
ill-treatment
and
demand of dowry coupled with cruelty by
her husband and in-laws prior to filing of
this complaint and the District Magistrate
has taken cognizance over it, wherein
District Probation Officer was deputed to
look into the matter and an attempt for
family settlement was made at that stage.
But it could not be successful. Then after
this complaint was filed. Meaning thereby
the complainant being legally wedded wife
of Desh Deepak Dwivedi is an undisputed
fact. Subhash Chandra Dwivedi, Shashi
Kala Dwivedi and Neha Dwivedi are the
closed blood relatives of Desh Deepak
Dwivedi is also not disputed. Demand of
dowry coupled with cruelty is very well
there against these in-laws. A complaint
11 All. Om Narayan Tiwari Vs. State of U.P. & Anr.
83
was earlier made and an attempt for family
settlement was there, but it could not be
successful. Divorce petition has been filed
by Desh Deepak Dwivedi with allegations
and this complaint has been filed with
above contention of demand of dowry,
cruelty with regard to it, ill-treatment as
well as assault, abuse and intimidation.
This contention of complainant was very
well reiterated in the statement u/s 200
Cr.P.C. and this was further corroborated by
two witnesses in their statements recorded
u/s 202 Cr.P.C. Moreso, an enquiry u/s
202(1) Cr.P.C. by a Gazetted Police Officer
was got conducted by Magistrate and report
of Gazetted Police Officer i.e. Dy. S.P. is
also of fact that there had been a complaint
regarding demand of dowry, cruelty with
regard to it and ill-treatment of Kumkum
Dwivedi by her husband and in-laws was
filed before District Magistrate, Gorakhpur,
it was taken under consideration and an
attempt for its disposal by way of
mediation by District Probation Officer was
made, but was unsuccessful. There was
complaint of above demand of dowry and
cruelty with regard to it. What else was
required by the Magistrate for making a
prima-facie case for passing summoning
order u/s 204 Cr.P.C. Hence the order
passed by the Magistrate was against the
proposition of law on the point of
summoning u/s 204 Cr.P.C., as written by
the learned Sessions Judge, Maharajganj,
while deciding the Criminal Revision.
Hence the impugned order of the learned
Sessions Judge, Maharajganj, is well in
accordance with law and has rightly set
aside the order of C.J.M., Maharajganj.

9. Accordingly, this application merits
its dismissal. Dismissed as such.

10. However, from all those facts and
circumstances, it is apparent that the
Officer, presiding as C. J. M., Maharajganj,
who has passed the order dated 17.3.2020
in Complaint Case No. 379 of 2019,
Kumkum Vs. Desh Deepak, u/s 498A, 323,
504, 506 I.P.C. and 3/4 D. P. Act, P. S.
Paniyara, District Maharajganj, is either not
in a position to appreciate law or visualize
the observations made by learned Sessions
Judge, Maharajganj, or is with some
extraneous influence. Hence the learned
Sessions Judge, Maharajganj, is being
expected to make file to some other Court
of Magistrate for disposal.
----------
(2020)11ILR A83
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2020

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 15070 of 2020

Om Narayan Tiwari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vikas Budhwar, Sri Shrawan Kumar
Ojha, Vinay Saran(Senior Adv.)

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law - Code of Criminal
Procedure,
1973
-
Section
161
-
Prevention of Corruption Act, 1988 -
Section 13(1)(e) - Criminal misconduct by
a public servant - standard of proof in
department proceeding is lower than that
of criminal prosecution - departmental
proceeding or for that matter criminal
cases have to be decided only on the basis
of
evidence
adduced
therein
-
Truthfulness of the evidence in the
criminal case can be judged only after the
evidence is adduced therein and the