# Diwakar Singh v. State of U.P

- **Citation:** (2024) 3 ILRA 356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Matters Under Article 227 No. 5914 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/diwakar-singh-v-state-of-u-p-50946
- **Pages:** 8

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Section
243
-
Constitution of India,1950 - Article 227 -
Defence Witnesses - - Petitioner challenged
the
order
dated
18.01.2023
by
Judicial
Magistrate,
Varanasi,
rejecting
applications
(dated 19.07.2021 and 02.08.2021) to summon
retired police officers (Bua Singh, Atul, Vijay
Kumar Agrawal) as defence witnesses in a trial
under Sections 392, 218, 467, 468, 120-B IPC.
Petitioner, a former Sub-Inspector, was charged
for fabricating a false loot incident after lodging
an FIR (Case Crime No. 444/2000). Applications
sought to summon documents, case property,
recall prosecution witnesses, and call retired
officers to verify departmental enquiry records.
Revisional court partly allowed earlier revision
(26.04.2022), directing reconsideration only for
summoning defence witnesses. Trial court's
subsequent
order
(20.09.2022)
allowing
summoning was set aside by revisional court
(22.12.2022) for lack of reasoning. Fresh order
(18.01.2023) rejected applications, finding no
material relevance of witnesses, deeming the
request
vexatious
and
dilatory.
Court
upheld the order, noting Section 243(2)
Cr.P.C. allows refusal if summoning is for
vexation or delay, and the proviso restricts
recalling witnesses unless essential for
justice. Petitioner failed to demonstrate
witnesses'
relevance
to
disprove
prosecution
or
prove
innocence.
No
miscarriage of justice or violation of law
found. Petition dismissed under Article 227.
(Paras 8-15)

Petition Dismissed.

Case Law Cited:

## Text

356 INDIAN LAW REPORTS ALLAHABAD SERIES
effective protection to women", hence it is
being held that where a sufferer has a right
to obtain maintenance as provided in
criminal law or in civil law or personal law
and that she has been subjected to domestic
violence from a person who stood in
domestic relationship, she may resort to
quicker method of obtaining reliefs under
section 12 of the Protection of Women from
Domestic Violence Act, 2005.

14. From perusal of the judgments as
have been referred to earlier, there remains
no doubt that unmarried daughter, whether
Hindu or Muslim has a right to obtain
maintenance, irrespective of her age. This
is made clear again that the courts have to
look for other laws applicable when the
question pertains to right to be maintained.
However, where issue does not pertain to
mere maintenance, the independent rights
are available to an aggrieved under section
20 of the DV Act itself.

15. Hence, I do not find any
good ground to interfere in the impugned
orders in exercise of powers under Article
227 of the Constitution of India, therefore,
this revision is dismissed.

16. Let a copy of the order be
immediately transmitted to the court
concerned.
----------
(2024) 3 ILRA 356
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABABAD 09.01.2024
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 5914 of 2023
(Criminal)

Diwakar Singh ...Petitioner
Versus
State of U.P. ...Respondents

Counsel for the Petitioner:
Sri Utkarsh Birla, Aarushi Birla

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
243
-
Constitution of India,1950 - Article 227 -
Defence Witnesses - - Petitioner challenged
the
order
dated
18.01.2023
by
Judicial
Magistrate,
Varanasi,
rejecting
applications
(dated 19.07.2021 and 02.08.2021) to summon
retired police officers (Bua Singh, Atul, Vijay
Kumar Agrawal) as defence witnesses in a trial
under Sections 392, 218, 467, 468, 120-B IPC.
Petitioner, a former Sub-Inspector, was charged
for fabricating a false loot incident after lodging
an FIR (Case Crime No. 444/2000). Applications
sought to summon documents, case property,
recall prosecution witnesses, and call retired
officers to verify departmental enquiry records.
Revisional court partly allowed earlier revision
(26.04.2022), directing reconsideration only for
summoning defence witnesses. Trial court's
subsequent
order
(20.09.2022)
allowing
summoning was set aside by revisional court
(22.12.2022) for lack of reasoning. Fresh order
(18.01.2023) rejected applications, finding no
material relevance of witnesses, deeming the
request
vexatious
and
dilatory.
Court
upheld the order, noting Section 243(2)
Cr.P.C. allows refusal if summoning is for
vexation or delay, and the proviso restricts
recalling witnesses unless essential for
justice. Petitioner failed to demonstrate
witnesses'
relevance
to
disprove
prosecution
or
prove
innocence.
No
miscarriage of justice or violation of law
found. Petition dismissed under Article 227.
(Paras 8-15)

Petition Dismissed.

Case Law Cited:
1. Mrs. Kalyani Baskar Vs M.S. Sampoornam,
Criminal Appeal No. 1293/2006, decided on
11.12.2006 (Para 4)

2. In Re: To Issue Certain Guidelines Regarding
Inadequacies and Deficiencies in Criminal Trials
3 All. Diwakar Singh Vs. State of U.P.
357
Vs St. of Andhra Pradesh, Suo Moto Writ (Crl.)
No. 1/2017, decided on 20.04.2021 (Para 4)

3. Shyam Manohar Saxena Vs C.B.I., Criminal
Revision No. 1169/2018, decided on 01.07.2019
(Delhi HC) (Para 4)

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

1. Heard Sri Utkarsh Birla, learned
counsel for the petitioner and Sri Ram
Kumar Verma, learned AGA for the State.

2. This petition under Article 227 of
the Constitution has been filed by the
petitioner-Diwakar Singh with a prayer to
set aside the order dated 18.01.2023 passed
by the Judicial Magistrate, Court no. 5,
Varanasi in criminal case no. 3272 of 2019,
by which the applications dated 19.07.2021
and 02.08.2021 were rejected, with a
further prayer to issue an appropriate
direction to the Judicial Magistrate/ the
court concerned to comply with the interim
order passed by this court in criminal misc.
petition no. 2160 of 2023 dated 27.04.2023.

3. Relevant facts are as below:-

(i) The petitioner Diwakar Singh
was posted as Sub-Inspector of police and
he lodged an FIR, case crime no. 444 of
2000 under sections 307 and 392 IPC and
section 3 of FEMA Act against Durga
Prasad Agarwal and few others;

(ii) The police investigated the
matter and filed a chargesheet, not against
the persons named therein but against the
petitioner the first informant Diwakar
Singh himself, under sections 392, 218,
467, 468, 120-B IPC on 25.07.2003, stating
therein that Sub-Inspector Diwakar Singh,
with his unknown associates hatched a
conspiracy showing a fake incident of loot
and he also prepared false papers to show
a false incident as genuine one. Durga
Prasad Agarwal and number of others were
made
witness
against
Sub-Inspector
Diwakar Singh;

(iii)
During
the
course
of
proceedings of the trial, the accused
Diwakar Singh moved an application on
13.10.2020, requesting the trial court
concerned
to
summon
the
files
of
departmental
proceedings
and
to
summon/direct the police officers to remain
present on the dates of hearing.

(iv) The trial court wrote a letter
dated 20.10.2020 to Additional Director
General of Police, Anti-Corruption for
production
of
original
record.
The
department concerned sent the original
record
by
a
covering
letter
dated
29.10.2020;

(v) The prosecution examined its
witnesses and the prosecution evidence
stood closed on 04.05.2021. Thereafter the
statement the accused were recorded under
section 313 Cr.P.C.;

(vi) At the stage of defence
evidence,
the
accused
moved
an
application
dated
19.07.2021
with
following prayers:-

" .......to pass order directing
the prosecution to provide copy of DFR
dated 05.06.2022, Interrogation Report
dated 15.09.2000 and Statements of PW-5
Shri Shashank Agrawal and Pw-6 Shri
Durga Prasad Agrawal which were
recorded by the SIT, summon the case
property Rs. 2,47,500/- and re-call PW-1
Shri Babu Chand and PW-6 Shri Durga
Prasad Agrawal and summon Shri Bua
Singh (Retd. DGP) and Shri Atul (Retd.
DGP) as defense witnesses to meet the
ends of justice."

(vii)
He
moved
another
application
dated
02.08.2021
with
following prayer:-
358 INDIAN LAW REPORTS ALLAHABAD SERIES

".......... to pass order directing
to the prosecution to re-call the PW-1 Shri
Babu Chand and PW-6 Shri Durga
Prasad Agrawal. It is further prayed that
Shri Bua Singh (Retd. DGP), Shri Atul
(Retd. DGP) and Shri Vijay Kumar
Agrawal (Retd. IGP) may also be
summoned as defense witnesses for
verifying letters, approval orders and
DFRs and exhibiting them as Exhibit-Kha
to meet the ends of justice."

(viii) The learned Magistrate
dismissed his both the applications (dated
19.07.2021 and 02.08.2021) by a detailed
order passed on 16.09.2021;

(ix) The accused preferred a
criminal revision no. 242 of 2021. The
revisional court partly allowed the revision
and passed an order on 26.04.2022 as
below:-

"निगरािीकर्ाा द्वारा प्रस्र्ुर् निगरािी आंनिक
रूप से स्वीकार नकया जार्ा है। अवर न्यायालय द्वारा श्री बुआ
नसंह, श्री अर्ुल, श्री नवजय कुमार अग्रवाल को र्लब ि नकये
जािे के नबन्दु पर पाररर् आदेि नदिांनकर् 16.09.2021
निरस्र् नकया जार्ा है। नदिांक 16.09.2021 के पाररर्
आदेि के द्वारा प्रार्ािापत्र नदिांनकर् 02.0702021,
02.08.2021 व 19.07.2021 के पररप्रेक्ष्य में अन्य
नबन्दुओं पर पाररर् आदेि को पुष्ट नकया जार्ा है। अवर
न्यायालय को निदेनिर् नकया जार्ा है नक साक्षीगण के र्लबी
के नबन्दु पर निगरािीकर्ाा को पुिः सुिकर नवनधिुसार आदेि
पाररर् नकया जािा सुनिनिर् करें। निगरािीकर्ाा को निदेनिर्
नकया जार्ा है नक नदिांक 12.05.2022 को अवर
न्यायालय में उपनस्र्र् हों।"

(x) The order dated 26.04.2022 of
revisional court was challenged in misc.
petition no. 3972 of 2022 before the High
Court, which is still pending;

(xi) During the pendency of
aforesaid misc. petition, the trial court
proceeded and passed a fresh order dated
20.09.2022 allowing the applications of the
accused dated 19.07.2021 and 02.08.2021
to the extent that Bua Singh (Retd. DGP),
Atul (Retd. DGP) and Vijay Kumar
Agrawal (Retd. IGP) may be produced as
defence
witnesses.
This
order
dated
20.09.2022 was passed in the light of the
order of the revisional court dated
26.04.2022 and the case was posted for
defence evidence;

(xii) This order passed by the
trial court for summoning the defence
witness, was challenged in
criminal
revision no. 393 of 2022 by the State,
which was decided by order dated
22.12.2022 by the District Judge, Varanasi.
By this order, the revision was allowed and
the order of summoning the police officers,
as defence witnesses was set-aside and the
trial court was directed to pass a fresh
order, mentioning therein the reasons and
the grounds for summoning those persons
as defence witnesses;

(xiii) In the light of the aforesaid
order of the revisional court, the Judicial
Magistrate, Court no. 5, Varanasi passed a
fresh order dated 18.01.2023 and the
applications
dated
19.07.2021
and
02.08.2021 were rejected by the court
concerned, on the basis of discussions and
reasons disclosed in the order;

(xiv) The aforesaid order dated
18.01.2023 is now under challenge in this
petition.

4. The submissions of the petitioner
are
that
in
his
applications
dated
19.07.2021 and 02.08.2021, he has given
detailed reasons for the purpose of
summoning Bua Singh (Retd. DGP), Atul
(Retd. DGP) and Vijay Kumar Agrawal
(Retd. IGP), as defence witnesses; further
submission is that adducing evidence in
support of defence is a valuable right,
denial whereof is equivalent to denial of
fair trial. Further that the court below did
not cite any good reason for rejecting the
applications. The petitioner relied on the
judgment of the Supreme Court given in
3 All. Diwakar Singh Vs. State of U.P.
359
Criminal Appeal No. 1293 of 2006 (Mrs.
Kalyani Baskar vs. M.S. Sampoornam)
decided on 11.12.2006. Further on Suo
Moto Writ (Crl.) No. 1 of 2017 (In Re: To
Issue
Certain
Guidlines
Regarding
Inadequacies
and
Deficiencies
in
Criminal Trials vs. The State of Andhra
Pradesh
and
Others)
decided
on
20.04.2021 and also on the judgment of the
Delhi High Court in Criminal Revision
No. 1169 of 2018 (Shyam Manohar
Saxena vs. C.B.I. and others) decided on
01.07.2019.

5. The accused made following prayer
in his application dated 19.07.2021:-

" It is, therefore, respectfully
prayed to this Hon'ble Court may be
pleased to pass order directing to the
prosecution to provide copy of DFR dated
05.06.2022, Interrogation Report dated
15.09.2000 and Statements of PW-5 Shri
Shashank Agrawal and Pw-6 Shri Durga
Prasad Agrawal which were recorded by
the SIT, summon the case property Rs.
2,47,500/- and re-call PW-1 Shri Babu
Chand and PW-6 Shri Durga Prasad
Agrawal and summon Shri Bua Singh
(Retd. DGP) and Shri Atul (Retd. DGP) as
defense witnesses to meet the ends of
justice."

In continuation of this application
dated 19.07.2021, the accused moved
another application dated 02.08.2021 to
supplement the earlier one with following
prayer as below:-

"It is, therefore, respectfully
prayed that this Hon'ble Court may be
please to pass order directing to the
prosecution to re-call the PW-1 Shri Babu
Chand and PW-6 Shri Durga Prasad
Agrawal. It is further prayed that Shri
Bua Singh (Retd. DGP), Shri Atul (Retd.
DGP) and Shri Vijay Kumar Agrawal
(Retd. IGP) may also be summoned as
defense witnesses for verifying letters,
approval orders and DFRs and exhibiting
them as Exhibit-Kha to meet the ends of
justice."

Broadly, four kinds of prayers
were made:-

(i) summoning certain papers;

(ii) summoning the case property;

(iii) recall of certain prosecution
witnesses
who
were
already
examined/cross-examined;

(iv) calling certain persons as
defence witnesses.

6. The matter has gone into several
rounds of litigation. In the first round, the
trial
court
heard
the
matter
of
summoning/recall/re-examination of the
witness/papers/case property and dismissed
the same by an order dated 16.09.2021. The
court of revision partly allowed the same
and directed the trial court to re-hear only
the matter of summoning three persons as
defence witnesses namely, Bua Singh, Atul
and Vijay Kumar Agrawal, all retired police
officers. The revisional court at the same
time affirmed the rest of the order passed
by the trial court. The learned trial court,
therefore,
passed
a
fresh
order
on
20.09.2022 and summoned the aforesaid
persons, as defence witnesses. The State
started a second round of litigation by filing
a criminal revision no. 393 of 2022, which
was allowed by order dated 22.12.2022.
The trial court was directed to hear the
matter again and pass a speaking order,
mentioning therein the reasons, in case the
trial court found the witnesses fit to be
summoned, as defence witnesses, therefore,
the trial court passed an order for the third
time on 18.01.2023 and this time rejected
the prayer for summoning the aforesaid
persons, as defence witnesses.
360 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Admittedly the interim stay orders
were passed by the High Court in Misc.
Petition No. 2160 of 2023 after a fresh
order was already passed by the trial court,
hence is of no consequence.

8. This is significant to note that the
accused made several prayers in his
applications but the point in issue has
narrowed
down
to
the
question
of
summoning three persons as defence
witness. This may be noted that none of the
orders passed in revision i.e., Criminal
Revision no. 242 of 2021 passed on
26.04.2022 and in Criminal Revision no.
393 of 2022 passed on 22.12.2022, are
under challenge in this petition. In the
former criminal revision, part of the order
passed by the trial court was affirmed
meaning thereby that the order of trial court
rejecting the prayer to summon the
witnesses PW1 and PW6, who stood
already examined and a further prayer to
summon Rs. 2,47,500/-, seized in the
incident as case property were not
interfered at by the court of revision. The
findings on those points have become final
and cannot be re-agitated in the present
petition for the simple reason that those
orders have not been challenged. It may be
reiterated that the petitioner has challenged
only the third order passed by the trial
court, by which the matter of summoning
three persons was rejected. In these
circumstances, the matter has boiled down
to above issue only i.e., whether to
summon retired police officers namely, Shri
Bua Singh (Retd. DGP), Shri Atul (Retd.
DGP) and Shri Vijay Kumar Agrawal
(Retd. IGP), as defence witnesses or not.

9. Now the question which arises is
whether the trial court was correct in
rejecting the prayer on the grounds that it
was made for the purpose of vexation or
delay or for defeating the ends of justice.
For this purpose, it will be appropriate to
reproduce the provisions of section 243
Cr.P.C. as below:-

"243. Evidence for defence.

(1) The accused shall then be
called upon to enter upon his defence and
produce his evidence; and if the accused
puts in any written statement, the
Magistrate shall file it with the record.

(2) If the accused, after he has
entered upon his defence, applies to the
Magistrate to issue any process for
compelling the attendance of any witness
for the purpose of examination or cross-
examination, or the production of any
document or other thing, the Magistrate
shall issue such. process unless he
considers that such application should be
refused on the ground that it is made for
the purpose of vexation or delay or for
defeating the ends of justice and such
ground shall be recorded by him in
writing: Provided that, when the accused
has
cross-examined
or
had
the
opportunity of cross- examining any
witness before entering on his defence, the
attendance of such witness shall not be
compelled under this section, unless the
Magistrate is satisfied that it is necessary
for the ends of justice.

(3) The Magistrate may, before
summoning any witness on an application
under sub- section (2), require that the
reasonable expenses incurred by the
witness in attending for the purposes of
the trial be deposited in Court. B.- Cases
instituted
otherwise
than
on
police
report."

10. From bare perusal of section 243
Cr.P.C., it occurs that a clear distinction has
been maintained between the persons who
are sought to be produced by the defence
3 All. Diwakar Singh Vs. State of U.P.
361
before the court for the first time with the
persons who have been already produced as
witnesses. The law provides two kinds of
parameters, first one which shall apply to
the witnesses for the purpose of fresh
examination and the second when some
witness who has already been examined
and cross-examined or the accused had an
opportunity to cross-examine them before
he entered on his defence. The law provides
that in the first case ordinarily the
Magistrate may issue process unless he
considered that such application should be
refused on the ground that it is made for the
purpose of vexation or delay or for
defeating the ends of justice. In the second
case (i.e., when a person who has already
been cross-examined by the defence or the
defence had an opportunity of crossexamining him), the attendance of such
witness shall not be compelled unless the
Magistrate is satisfied that it is necessary
for the ends of justice. The first part of
section 243(2) Cr.P.C. has been worded in a
positive manner while the proviso to
section 243(2) Cr.P.C which applies in a
latter case, has been worded giving only a
little scope to the defence. The law imposes
obligation on the Magistrate not to compel
the attendance of any such witnesses unless
it is satisfied that it is necessary for the
ends of justice. The aforesaid distinction
should be kept in mind while dealing the
matter under section 243 Cr.P.C.

11. From here, I find it necessary to
relate the matter to the submissions as
contained in the applications moved by the
accused before the trial court. The accused
has submitted in his application that the
proposed D.F.R. i.e., draft final report was
approved by Bua Singh, the then HOD,
Anti-Corruption Organization, UP. Except
the above averments, there is no other
material fact brought before the court as
regard summoning of Bua Singh, as
defence witness. As regard the second
witness namely, Shri Atul, the then ADG,
Police is concerned, the defence seeks to
examine him for verification of inquiry
closure report and no more. This is all
which is contained in the application dated
19.07.2021 seeking Shri Bua Singh and
Shri Atul to be produced as defence
witnesses. A second application, which was
moved on 02.08.2021 to supplement the
previous application, there is mention of
name of Vijay Kumar Agrawal, the then SP,
Anti-Corruption Organization, UP in para
no. 2(c) of the application. In the aforesaid
portion of the application, there is a plain
statement suggesting that there was close
nexus between the investigating agency and
Vijay Kumar Agrawal, the then SP, AntiCorruption Organization, UP. From bare
perusal of the statements, as mentioned in
the original applications dated 19.07.2021
and 02.08.2021, it can fairly be inferred
that the defence has not been able to
demonstrate that how and why examination
of these witnesses is important for his
defence and that why and how their
evidence may prove helpful to disprove the
prosecution case or to prove his innocence
or even to create cracks or doubts in the
prosecution story.

12. In the background of above facts,
the learned trial court rightly observed as
below:-

"On the perusal of record and
the observation made in the order dated
22.12.2022, the Court is of the view that
through application dated 19.07.2021 and
02.08.2021, the accused summoning Shri
Bua Singh, Shri Atul & Shri Vijay Kumar
as defence witnesses because they have
sanctioned the permission to conduct
departmental enquiry on the basis of
362 INDIAN LAW REPORTS ALLAHABAD SERIES
documents and certain evidences. Accused
has mentioned in detail the lacunae in
those
departmental
&
privileged
documents & proceedings which has been
conducted in the departmental enquiry.
For this purpose, the accused has
presented application dated 19.07.2021
& 02.08.2021 in order to summon the
defence witnesses which are mentioned
above.

It is found that, on perusal of
records and hearing both the parties,
Shri Bua Singh, Shri Atul & Shri Vijay
Kumar are retried senior officers who
have been sought to be summoned as
defence witnesses by accused/applicant
are
neither
eye
witnesses,
nor
circumstantial witnesses. They have
neither
been
questioned
by
investigating
officer
during
investigation nor their statements have
been recorded. On the perusal of
record, it is found that Shri Bua Singh,
Shri Atul & Shri Vijay Kumar have
sanctioned the departmental enquiry to
conduct against the applicant. It is on
the because of this act which these
officers have done in discharge of
their official duty, the accused through
application
dated
19.07.2021
&
02.08.2021
seek
permission
under
section 243 Cr.P.C. to summon them as
defence witnesses. In the light of
above, facts & circumstances, the
court is of the view that the accused
has failed to show as to how the
evidences of these persons are material
in the present case."

After mentioning the above
facts and circumstances, the learned
trial court has taken a view that the
defence seeks to summon these retired
officers as witness for the purpose of
vexation or delay and to defeat the ends
of justice. In the light of the material as
disclosed in the applications moved by
the defence, the observations made by
the trial court appear to be cogent and
pertinent. And the opinion formed that
defence in fact seeks to summon the
retired police officers as witness for the
purpose of vexation or causing delay do
not
appear
to
be
far-fetched
or
unfounded.

13. As a matter of caution, I went
through all the averments made in the
applications as well as in the petition
and all the material on record, to find
out some good ground the accused may
have taken. There are long winding
statements and descriptions all weaved
together to give a false impression of
having a good case, but a discerning
judicial eye can see through the web
created by a legal mind. Outwardly the
contentions are appealing but they do
not have any substance. The case laws
cannot help when there is no substance
in the submissions.

14. The power under Article 227
of the Constitution of India is definitely
supervisory in nature, but it should be
exercised sparingly and in appropriate
cases, only to prevent miscarriage of
justice or flagrant violation of law.

Exercise of this power and
interfering with the orders of the courts
or tribunals is restricted to cases of
serious dereliction of duty and flagrant
violation of fundamental principles of
law or justice, where if the High Court
does not interfere, a grave injustice
remains uncorrected.

15. I do not find any good reason
to interfere in the order impugned in
exercise of powers under Article 227 of
3 All. Judith Maria Monika Killer @ Sangeeta J.K. Vs. State of U.P. & Anr.
363
the Constitution of India, hence the
petition is dismissed.
----------
(2024) 3 ILRA 363
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABABAD 08.01.2024
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 8240 of 2023
(Criminal)

Judith Maria Monika Killer@ Sangeeta J.K.
 ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Mishra

Counsel for the Respondents:
G.A., Sri Surendra Yadav

Criminal Law - Indian Penal Code, 1860 -
Section 504 - Constitution India,1950 -
Article
227
-
Petitioner
challenged
the
summoning order dated 24.09.2021 by Chief
Judicial Magistrate, Varanasi, under Section 504
IPC in Complaint Case No. 8564/2018, and its
affirmation by revisional court on 31.05.2023.
Complainant, an advocate and RTI activist,
alleged that petitioner, Executive Director of
Kiran Society, insulted him by calling him "mad"
during an inquiry on 19.05.2017, initiated due to
his complaint against the society's misuse of
funds. St.ments under Sections 200 and 202
Cr.P.C. alleged insult and abusive words in
public. Petitioner argued no offence under
Section 504 IPC was made out, as the remark
lacked intent to provoke breach of public peace,
and the complaint was filed after a 16-month
delay, barred by Section 468 Cr.P.C. Relying on
Vikram Johar Vs St. of U.P., AIR 2019 SC 297,
and Fiona Shrikhande Vs St. of Maharashtra,
(2013) 14 SCC 44, court held that Section 504
requires intentional insult of a degree to
provoke breach of peace or commission of an
offence. The stray remark, made in the context
of an inquiry, was inappropriate but lacked
criminal intent. Courts below failed to apply
judicial mind under Sections 203 and 204
Cr.P.C., as the evidence did not establish a
prima facie case. Summoning order and
revisional order set aside; proceedings quashed.
Petition allowed. (Paras 9-20)

Petition Allowed.

Case Law Cited:

1. Vikram Johar Vs St. of U.P., AIR 2019 SC
297, Criminal Appeal No. 759/2019, decided on
26.04.2019 (Paras 9, 10, 19)

2. Fiona Shrikhande Vs St. of Maharashtra,
(2013) 14 SCC 44, Criminal Appeal No.
1231/2013, decided on 22.08.2013 (Paras 9, 16,
18, 19)

3. Pepsi Food Limited Vs Special Judicial
Magistrate, (1998) 5 SCC 749 (Para 16)

4. Dr. Divya Nand Yadav Vs St. of U.P., Criminal
Appeal No. 9188/2022, decided on 20.04.2023
(Paras 16, 17)

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

1. Heard Sri Manoj Kumar Mishra,
learned counsel for the petitioner, Sri
Surendra Yadav, learned counsel for the
respondent and learned A.G.A. for the
State.

2. This petition under Article 227 has
been filed challenging the order dated
24.09.2021 passed by Chief Judicial
Magistrate in Complaint Case No. 8564 of
2018 (Dashrath Kumar Dixit Vs. Sangeeta
J.K) summoning the accused under section
504 I.P.C. and further to set aside order
dated 31.05.2023 passed in Criminal
Revision No. 280 of 2021 by which the
summoning order was affirmed. A further
relief of quashing the entire proceedings of
the complaint case has also been sought by
means of this petition.