# Dr. Divya Nand Yadav & Anr v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 486
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Case number:** Criminal Appeal No. 9188 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-divya-nand-yadav-anr-v-state-of-u-p-anr-50363
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 323, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - 3(1)(da) and
3(1)(dha) - Code of Criminal Procedure,
1973 - Sections 151, 156(3), 200, 202 -
Against
summoning
order
-
PW1
submitted
that
he
was
raising
construction on his own land when
incident happened - There was dispute
over land - His mother (PW1) and brother
(PW2),
supported
St.ments
of
complainant and said that appellants with
co-accused beat them mercilessly - Except
those bald St.ments uncorroborated with
medical evidence, nothing mentioned on
record - As per police report appellant no.
1 purchased land situated near land of
complainant - Appellants got their land
measured by revenue officials and 2
biswas of land illegally encroached upon
by complainant - Complainant and his
family members took away some of
harvested wheat crop lying there - Wife of
appellant no. 1 lodged FIR, the instant
false case lodged by complainant against
appellants. (Para 11)

Complaint (instant case) lodged against
appellants alleging incident which took
place
on
15.03.2021
-
With
similar
allegations
another
complaint
by
grandfather
of
complainant
lodged
regarding
incident
took
place
on
22.02.2021 alleging that when he was
raising construction, appellants came and
abusing
them
with
casteist
words,
complainant mentioned that earlier false
case of stealing wheat crops filed against
him - On basis of aforesaid complaint,
appellants have been summoned. (Para
12)

The judicial process should not became
tool
for
oppression
or
avoidable
harassment - Not sufficient material on
record to proceed to take cognizance and
summon
accused
persons,
hence,
impugned order set aside. (Para 15)

Appeal allowed. (E-13)

List of Cases cited:

## Text

486 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Thus we come to the definite
conclusion that the death was due to
septicemia. The judgments cited by the learned
counsel for the appellant would permit us to
uphold our finding which we conclusively
hold that the offence is not under Section 302
of I.P.C. but is culpable homicide under
Section 304 of the I.P.C. and, therefore,
sentence of the accused appellant is reduced to
the period he has already undergone. The total
amount of fine Rs. 1500/- be deposited within
30 days from today otherwise the appellant
shall undergo to the additional period of
incarceration as directed by the Trial Court.

30. The appeal is accordingly partly
allowed. Record and proceedings be sent back
to the Court below forthwith.

31. A copy of this judgment be sent to
the concerned Court for compliance and
keeping it with original records.
----------
(2023) 7 ILRA 486
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 9188 of 2022

Dr. Divya Nand Yadav & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Sri Ram Kishore Pandey

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

Criminal Law - Indian Penal Code,1860 -
Sections 323, 504 & 506 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - 3(1)(da) and
3(1)(dha) - Code of Criminal Procedure,
1973 - Sections 151, 156(3), 200, 202 -
Against
summoning
order
-
PW1
submitted
that
he
was
raising
construction on his own land when
incident happened - There was dispute
over land - His mother (PW1) and brother
(PW2),
supported
St.ments
of
complainant and said that appellants with
co-accused beat them mercilessly - Except
those bald St.ments uncorroborated with
medical evidence, nothing mentioned on
record - As per police report appellant no.
1 purchased land situated near land of
complainant - Appellants got their land
measured by revenue officials and 2
biswas of land illegally encroached upon
by complainant - Complainant and his
family members took away some of
harvested wheat crop lying there - Wife of
appellant no. 1 lodged FIR, the instant
false case lodged by complainant against
appellants. (Para 11)

Complaint (instant case) lodged against
appellants alleging incident which took
place
on
15.03.2021
-
With
similar
allegations
another
complaint
by
grandfather
of
complainant
lodged
regarding
incident
took
place
on
22.02.2021 alleging that when he was
raising construction, appellants came and
abusing
them
with
casteist
words,
complainant mentioned that earlier false
case of stealing wheat crops filed against
him - On basis of aforesaid complaint,
appellants have been summoned. (Para
12)

The judicial process should not became
tool
for
oppression
or
avoidable
harassment - Not sufficient material on
record to proceed to take cognizance and
summon
accused
persons,
hence,
impugned order set aside. (Para 15)

Appeal allowed. (E-13)

List of Cases cited:

1. Fiona Shrikhande Vs St. of Mah. & anr.;
(2013) 14 SCC 44
7 All. Dr. Divya Nand Yadav & Anr. Vs. State of U.P. & Anr.
487
2. Pepsi Food Ltd. & anr. Vs Special Judicial
Magistrate & ors.; (1998) 5 SCC 749

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

1. Heard Sri Ram Kishore Pandey,
learned counsel for the appellants, Sri
Janardan Yadav,
learned
counsel
for
respondent no. 2 and Sri O.P. Mishra,
learned AGA for the State.

2. By means of this criminal appeal,
an order dated 09.11.2022 passed by the
Special Judge (SC/ST Act), Azamgarh in
complaint case no. 131 of 2021 (Prem
Kumar vs. Dr. Divya Nand Yadav and
Others), Police Station Jiyanpur, District
Azamgarh, whereby the appellant accused
persons have been summoned under
Sections 323, 504, 506 IPC and Section
3(1)(da) and 3(1)(dha) of the SC/ST
(Prevention of Atrocities) Act, is under
challenge.

3. The relevant facts as emerging
from record are as below:-

The complainant Prem Kumar filed an
application under Section 156(3) Cr.P.C.
against the present revisionists with the
allegations that on account of old enmity,
the accused persons, one of whom is a
doctor by profession and is having relations
with underworld and land mafia came to
him on 15.03.2021 at about 07.00 in the
evening and began hurling abusive and
derogatory words relating to his caste and
began to assault him; the complainant
rushed inside to save himself, however the
assailants followed them and attacked the
complainant and women of the house; they
left after extending threats to his life; the
application was registered as complaint
case and statement of witnesses under
Sections 200 and 202 Cr.P.C. have been
recorded; the court, after considering the
evidence
given
on
behalf
of
the
complainant passed the summoning order
which is now under challenge before this
court.

4. Besides other arguments, it has
been vehemently contended on behalf of
the appellants that the police submitted a
final report that the story put up by the
complainant is false and concocted one; the
real facts are that about a month before the
alleged incident, the complainant and his
family members were challaned under
Section 151 Cr.P.C. over a dispute relating
to a land; Shashi Yadav late wife of Dr.
Divya Nand Yadav (appellant no.1) had
purchased a plot no. 256 and her name was
mutated in revenue records; Prem Kumarthe complainant (respondent no. 2) has
been illegally interfering in the peaceful
possession of the appellants; this complaint
on the basis of an application under Section
156(3) Cr.P.C. with a false story, has been
filed with ulterior motives and to sully the
image of appellant nos. 1 and 2, who run a
private nursing home; It is argued that the
entire proceedings is malafide and gross
abuse of process of law.

5. This is a settled position of law that
at the stage of summoning in a complaint
case, the court has to confine itself to the
evidence produced on behalf of the
complainant. It may be noted that at this
stage the accused or a proposed accused
have no say in the matter. They do not have
any opportunity to present their side before
the trial court. They do not have any
opportunity to cross-examine the witnesses
and the court is, therefore handicapped to
some extent to check the veracity of the
allegations. The court ordinarily has no
option but to depend upon the statement of
488 INDIAN LAW REPORTS ALLAHABAD SERIES
the witnesses. But this impediment is
sought to be diminished by law itself. It
may be noted that section 200 Cr.P.C.
speaks of examination of complainant and
the witnesses present. The provisions says
that the Magistrate shall examine on oath
the complainant and the witnesses present,
if any. Experience shows that though not
always but in a number of cases, for
various reasons, which need not be
elaborated here, the complainant is not
examined by the Magistrate himself instead
the complainant either just gives a
statement on his own or is led by his
counsel to parrot a story which suits him
and such statement acquires legal sanctity
as statement under Section 200 Cr.P.C.

6. There is certain purpose behind
enacting this provision in this manner.
When a Magistrate who is trained in law,
himself asks the questions he may elicit the
facts which are nearer to truth. Obviously
then there are much better chance to check
the veracity of allegations, the evaluation of
evidence before him and thereby come to
the right conclusion for summoning the real
culprits and at the same time putting his
foot down that no innocent person is
summoned unnecessarily. The purpose is
lost when this power is not utilized.

7. The same is true for the
examination of witnesses under Section
202 Cr.P.C. Section 202 Cr.P.C. speaks of
an inquiry to be conducted by the
Magistrate himself, if it thinks fit (or direct
for investigation by a police officer) for the
purpose of deciding whether or not there is
sufficient ground for proceeding. Section
202 Cr.P.C. and Section 202 (2) are as
below:-

"(1) Any Magistrate, on receipt of a
complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under section 192,
may, if he thinks fit, postpone the issue of
process against the accused, and either
inquire into the case himself or direct an
investigation to be made by a police officer
or by such other person as he thinks fit, for
the purpose of deciding whether or not
there is sufficient ground for proceeding:
Provided that no such direction for
investigation shall be made,--

(a) where it appears to the Magistrate
that the offence complained of is triable
exclusively by the Court of Session; or

(b) where the complaint has not been
made by a Court, unless the complainant
and the witnesses present (if any) have been
examined on oath under section 200.

"(2) In an inquiry under sub- section
(1), the Magistrate may, if he thinks fit, take
evidence of witnesses on oath: Provided
that if it appears to the Magistrate that the
offence complained of is triable exclusively
by the Court of Session, he shall call upon
the complainant to produce all his
witnesses and examine them on oath."

8. It is clear that the examination of
witnesses under Section 202 Cr.P.C., as is
popularly known, is in fact part of inquiry
which a Magistrate may conduct in cases
he does not find enough of grounds to
immediately proceed to summon the
accused. Though not always, this part of
procedure too has become a routine matter.
In almost all the cases based on complaint,
the
witnesses
are
examined
without
realizing the fact that such a step shall be
unnecessary if the Magistrate/the court
concerned is satisfied that prima facie case
is made out, on the basis of the examination
of the complainant and his witnesses at
previous stage of the case i.e. section 200
Cr.P.C. Where the Magistrate finds himself
short of requisite level of 'satisfaction' then
7 All. Dr. Divya Nand Yadav & Anr. Vs. State of U.P. & Anr.
489
only he may decide to further probe into by
ordering
for
examination
of
more
witnesses. The reasons behind jumping to
the next step of Section 202 Cr.P.C. have
gone in to oblivion in the rush of work and
almost routinization of things.

9. The phrase occurring in Section
202 Cr.P.C. "inquire into the case himself"
enjoins the Magistrate that he actually
plays its part by examining the witnesses
himself, rather than depending upon the
statements
which
might
be
clouded,
cryptic,
obscure
or
ambiguous
and
sometime very direct and bald. The
experience
in
courts
strengthens
the
impression that more often then not
unsupervised, one sided statement may
have more to conceal than to reveal. It is
said that law is a living being. It grows and
develops according to the exigencies of the
times. It will not be out of context to
mention that the superior courts have
observed in a number of cases that the trial
courts ought to be quite alert when they
decide to take cognizance or summon the
accused persons, may be at the stage of
Section 204 Cr.P.C. or otherwise. The
superior courts have consistently kept on
cautioning
the
courts
to
be
quite
circumspect, careful, alert and wakeful
while putting the legal machinery in
motion. The vicissitudes of cases, peculiar
facts
and
situations
do
impact
the
interpretations of law and contribute
towards the developments and progress of
legal arena.

10. There cannot be two opinions on
the settled legal position that the Magistrate
has to decide whether prima facie any case
is made out or not, before proceeding to
summon the accused persons. The meaning
of prima facie case must be understood in
the right perspective. There may be cases
where the Magistrate finds that in literal
sense of the words occurring in the
statements the ingredients of an offence are
there but he feels not so satisfied with
them. The Hon'ble Supreme Court in para11 of the judgment passed in Fiona
Shrikhande vs. State of Maharashtra and
Another; (2013) 14 SCC 44, observed as
below:-

"At
the
complaint
stage,
the
Magistrate is merely concerned with the
allegations made out in the complaint and
has only to "prima facie satisfy" whether
there are "sufficient grounds to proceed"
against the accused and it is not the
province of the Magistrate to enquire into a
detailed discussion on the merits or
demerits of the case. The scope of enquiry
under Section 202 is extremely limited in
the sense that the Magistrate, at this stage,
is expected to examine prima facie the
truth or falsehood of the allegations made
in the complaint."

The Supreme Court has used the
pharse
arriving
at
"prima
facie
satisfaction" whether there are "sufficient
grounds to proceed"! Section 204 Cr.P.C.
nowhere said that the Magistrate shall take
cognizance and summon the accused if
prima facie case is made out, instead
Section 204 Cr.P.C. says that the Magistrate
may take cognizance if there is sufficient
ground for proceeding, hence in my view
the prima facie case must be construed
to mean "prima facie satisfaction"
arrived at by the Magistrate. In other words
the Magistrate shall proceed only if he
finds that there is sufficient ground for the
same. This is not to say that the proposed
accused shall have any right to be heard at
that stage or that any evidence in defence
can be considered. It merely means that the
Magistrate shall assess all the material
490 INDIAN LAW REPORTS ALLAHABAD SERIES
before it and apply its mind to find out
whether time has come to proceed and take
cognizance. In that view of the matter the
Supreme Court in the case as aforesaid has
instead of using the word "prima facie
case" has found fit to use the phrase "prima
facie satisfaction" and of course this
satisfaction has to be arrived at while acting
within the four corners of law i.e., by
adopting the procedure as provided under
Sections 200 and 202 Cr.P.C. In may view,
the Magistrate is not powerless to examine
the truth or falsehood of the case made in
the complaint. And to fully utilize this
power the Magistrate has to play its role of
examining himself the complaint and his
witnesses under Sections 200 Cr.P.C., and
if required to further inquire into by calling
more witnesses and examining them or
even
by
ordering
investigation.
The
steering wheel of the inquiry cannot be left
at the hands of the complainant. For the
reason that at that stage, the accused has no
say in the matter and the court has no
opportunity to hear the other side, therefore
he
ought
to
remain
very
cautious,
circumspect
and
alert.
The
broad
probabilities or improbabilities of the story
of course may be seen at this stage.

The relative scope of Sections 203 and
204 Cr.P.C. were noted and considered by
the Supreme Court in Pepsi Food Limited
and
another
vs.
Special
Judicial
Magistrate and others; (1998) 5 SCC 749,
is as below:-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. it is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before
summoning
of
the
accused.
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."

The Supreme Court emphasized the
need that the Magistrate should not sit like
a silent spectator.

11. Though as far as this case is
concerned and keeping in mind that the
court cannot go beyond the material on
record, some facts are revealed which
should have alerted the Magistrate/the court
concerned, while exercising his powers.
The court did not consider the fact that
there has not been any medical evidence of
physical assault; PW1 has referred to the
fact that he was raising construction on his
own land when the incident happened;
Admittedly there lied a dispute over land;
His mother (PW1) and his brother (PW2),
who were examined under Section 202
Cr.P.C have supported the statements given
by the complainant and said that Dr. Divya
Nand Yadav, Shashi Yadav (wife of
appellant no. 1) and one Shiva Nand beat
them
mercilessly.
Except
those
bald
statements
uncorroborated
with
any
medical evidence, there is nothing worth
7 All. Dr. Divya Nand Yadav & Anr. Vs. State of U.P. & Anr.
491
mention on record; On the other hand there
is a report from concerned police station
which says that Dr. Divya Nand Yadav
(appellant no. 1) had purchased a land
situated near the land of the complainant;
The appellants got his land measured by a
team of revenue officials and it was found
that almost 2 biswas of land was illegally
encroached upon by the complainant, on
which a wheat crop was standing; The
report also says that the complainant and
his family members took away some of the
harvested wheat crop lying there. Shashi
Yadav W/o Dr. Divya Nand Yadav,
therefore lodged an FIR case crime no. 116
of 2021 under Sections 379, 504 and 506
IPC; therefore this false case has been
lodged by the complainant against them for
ulterior motives.

12. Moreover certain other facts have
come before this court which cannot be
ignored. The complaint in the instant case
has been lodged by Prem Kumar against
Dr. Divya Nand Yadav, Dr. Shivanand
Yadav and Shashi Yadav alleging an
incident which took place on 15.03.2021 at
about 7.00 in the evening. With strikingly
similar allegations another complaint by
one Vindhyachal Ram has been lodged
regarding an incident which allegedly took
place on 22.02.2021 at about 10.00 in the
morning alleging that when he was raising
construction, Shashi Yadav came to his
place claiming the land as her own and that
Dr. Divya Nand Yadav, Shivanand and one
Akhilesh Sharma came there abusing them
with casteist words and the complainant too
mentioned that earlier also Dr. Divya Nand
Yadav had filed a (false) case of stealing
the wheat crops against him. Admittedly on
the basis of aforesaid complaint by
Vindhyachal Ram (grandfather of the
instant complainant-Prem Kumar), another
complaint case no. 129 of 2021 is pending
against the revisionists, in which they have
been summoned exactly for the same kind
of offences and that another Criminal
Appeal No. 9201 of 2022 filed by Dr.
Divya
Nand
Yadav
and
2
others
challenging
the
summoning
order
is
pending.

13. Though it is agreed that at the
stage of appeal, other side has an
opportunity to be heard and point out or
bring before the court the facts more
clearly, which the trial court, obviously
lacks, hence the appellate court is better
equipped in coming to the right conclusion.
I must add a word of caution here. The
aforesaid
advantage
available
to
the
appellate court, especially in a complaint
case cannot be a justification, for the trial
court, who has not played its part in a
diligent manner to pass orders which stand
on shaky grounds. Firstly, by not asking the
questions himself and by not playing an
active
role as is
expected from a
Magistrate/court
while
conducting
an
inquiry. Secondly, on the basis of whatever
material which has come before the trial
court, the trial court shall arrive at a
satisfaction whether there is sufficient
ground
to
proceed
or
not;
The
Magistrate/court cannot draw a conclusion
of prima facie case by depending upon
literal meaning of statements. A dias has to
be held by a Magistrate/Judge not a robot.

14. The fact of the matter is that the
court shall not proceed in a mechanical or a
routine manner. It shall apply its mind,
which is called a judicial mind and
discretion
as
well.
The
court/the
Magistrate, though shall not go deep into
the evidence given and shall not weigh the
evidentiary value in a meticulous manner.
Except this rider, there is no other obstacles
before the court below for arriving at the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
"prima facie satisfaction" a word which can
be equated with the word "prima facie
case".

15. In my view, the judicial process
should not became a tool for oppression or
avoidable harassment. I am of the opinion
that there was not sufficient material to
proceed to take cognizance and summon
the accused persons, hence the impugned
order is hereby, set aside.
----------
(2023) 7 ILRA 492
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 79 of 2011

Ram Pratap @ Pratap Yadav ...Revisionist
Versus
State of U.P. ...Respondent

Counsel for the Revisionist:
Sunil Kumar Singh, Jitendra Bahadur Singh,
Seraj Ahmad Khan

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323,325 & 504 -The Code
of Criminal Procedure, 1973 - Section
397/401 - Revision - Section 360 - Order
to release on probation of good conduct or
after admonition, Section 361 - Special
reasons to be recorded in certain cases -
Where in any case the Court could have
dealt with, Probation of Offenders Act,
1958 - Sections 3 - Power of court to
release
certain
offenders
after
admonition, Section 4 - Power of court to
release certain offenders on probation of
good
conduct,
Uttar
Pradesh
First
Offenders' Probation Act, 1938 - Sections
3 - Power of court to release certain
offenders after admonition, Section 4 -
Power
of
court
to
release
certain
offenders on probation of good conduct -
examination of the investigating officer is
not necessary if no prejudice is caused to
the accused.(Para -15)

F.I.R. lodged - after finding fracture on right
hand of informant - N.C.R. converted into F.I.R.
- Section 325 added - Court ruled - nonexamination of I.O. not fatal for prosecution, as
oral,
documentary,
and
medical
evidence
supported each other - accused not prejudiced
by non-examination of I.O. - case of year 1998 -
more than 25 years passed - accused-revisionist
suffered matter for almost past two and half
decades - no other pre or post criminal
antecedent
of
accused
revisionist
-
not
appropriate to send revisionist in jail. (Para -
15,27)

HELD:-Court finds no illegality, perversity, or
infirmity in conviction part of order passed by
courts. Sentence inflicted on accused-revisionist
requires
modification.
Revisionist-accused's
conviction upheld. Sentence modified to include
Section 4 of the UP Probation of Offenders Act.
Released
on probation with condition
of
maintaining peace and good conduct for one
year. If breached, revisionist will face same
sentence as directed by courts. (Para-28, 29)

Revision
partly
allowed
with
modifications. (E-7)

List of Cases cited:

1. Bihari Prasad & ors. Vs St. of Bihar, 1996 (2)
SCC 317

2. Raj Kishor Jha Vs St. of Bihar, 2003, (47)
ACC, 1068

3. St. of Karn. Vs Muddappa, (1999) 5 SCC 732

4. Mohd. Monir Alam Vs St. of Bihar, (2010) 12
SCC 26

5. Krishna Deo & Ors. Vs St. of U.P., Criminal
Appeal No. 735 of 1982

6. St. of U.P. Vs Misri Lal & ors., 1982 CrLJ
1420