# Kailash & Anr v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-06
- **Case number:** Matters Under Article 227 No. 3254 of 2024
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-anr-v-state-of-u-p-anr-52145
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code, 1860
- Sections 307, 506, 34 - The Code of
Criminal Procedure, 1973 - Sections 200,
202, 204 - As per complaint - Petitioner
no. 1 has been assigned the role of firing
with pistol, while Petitioner no. 2 has
been assigned the role of exhortation -
Allegations have been supported by
St.ments u/s 200, 202 Cr.P.C. - Medical
report is indicative of firearm injuries
- Submission that at the stage of
summoning, the Magistrate is only
required to record a prima facie opinion,
based on material on record, and is not
expected to hold a mini trial or to
examine defence of accused - Scope of
procedure followed by Magistrate - Held,
allegations in complaint have been
found to be supported in the St.ment
made by complainant during the course
of examination and also by St.ments of
witnesses recorded during the course of
inquiry
made
by
Magistrate
-
Summoning order has been passed by
trial court after taking due consideration
of material available on record - Hence,
the order passed by court below doesn't
suffer from any infirmity and also the
revisional court order affirming the
summoning order of Magistrate can't be
faulted, for the same reason. (Para 2, 4,
5, 13)

Petition dismissed. (E-13)

List of Cases cited:

## Text

566 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court will complete the arbitration
proceedings between the parties within a
period of one year from the date of first
appearance of the parties before him.

46. The office is directed to obtain
consent of Sri. Deepak Kumar, H.J.S.
(Retd.), resident of 3/310, Vinamra Khand,
Gomti Nagar, Lucknow, for acting as the
Arbitrator for deciding the dispute between
the parties in terms of Schedule VI of the
Arbitration and Conciliation Act, 1996.

47. List on 24.05.2024 for further
orders.

----------
(2024) 5 ILRA 566
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No. 3254 of 2024

Kailash & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Phool Singh

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860
- Sections 307, 506, 34 - The Code of
Criminal Procedure, 1973 - Sections 200,
202, 204 - As per complaint - Petitioner
no. 1 has been assigned the role of firing
with pistol, while Petitioner no. 2 has
been assigned the role of exhortation -
Allegations have been supported by
St.ments u/s 200, 202 Cr.P.C. - Medical
report is indicative of firearm injuries
- Submission that at the stage of
summoning, the Magistrate is only
required to record a prima facie opinion,
based on material on record, and is not
expected to hold a mini trial or to
examine defence of accused - Scope of
procedure followed by Magistrate - Held,
allegations in complaint have been
found to be supported in the St.ment
made by complainant during the course
of examination and also by St.ments of
witnesses recorded during the course of
inquiry
made
by
Magistrate
-
Summoning order has been passed by
trial court after taking due consideration
of material available on record - Hence,
the order passed by court below doesn't
suffer from any infirmity and also the
revisional court order affirming the
summoning order of Magistrate can't be
faulted, for the same reason. (Para 2, 4,
5, 13)

Petition dismissed. (E-13)

List of Cases cited:

1. S.W. Palanitkar & ors. Vs St. of Bihar & anr.,
(2002) 1 SCC 241

2. Nirmaljit Singh Hoon Vs St. of West Bengal &
anr., (1973) 3 SCC 753

3. Chandra Deo Singh Vs Prokash Chandra Bose,
(1964) 1 SCR 639

4. Smt. Nagawwa Vs Veeranna Shivalingappa
Konjalgi & ors., (1976) 3 SCC 736

5.
Nupur
Talwar
Vs
Central
Bureau
of
Investigation & anr., (2012) 11 SCC 465

6. Sanjay Singh & anr. Vs St. of U.P. & anr., 2021
(117) ACC 479

7. Pinkal Singh @ Raghvendra Singh & ors. Vs St.
of U.P. & anr., 2021 (3) ACR 2461

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)
5 All. Shivam Tandon & Anr. Vs. Hindustan Petroleum Corp. Ltd. & Anr.
567

1. Heard Sri Phool Singh, learned
counsel for the petitioners and Sri Prem
Prakash Tiwari, learned AGA-I appearing
for the State-respondent.

2. The present petition has been filed
seeking to assail the summoning order dated
05.05.2023 passed in Complaint Case No.
5683 of 2019 (Anar Singh Vs. Kailash and
others), under Sections 307, 506, 34 IPC,
and the subsequent order dated 22.12.2023
passed in Criminal Revision No. 75 of 2023
(Kailash Vs. Anar Singh and others), in
terms of which the earlier order has been
affirmed.

3. Counsel for the petitioners has
sought to assail the orders by referring to the
factual aspects of the case, and the defence
which is to be set up on behalf of the
petitioners.

4. Learned AGA-I submits that, as per
the complaint version, the petitioner no. 1
has been assigned the role of firing with a
pistol, and the petitioner No. 2 has been
assigned the role of exhortation, as per the
statement of the injured, and the complaint
allegations have been supported by the
statements under Section 200 and 202
Cr.P.C., and also that the medical report is
indicative of the firearm injuries.

5. It is submitted that at the stage of
summoning, the Magistrate is only required
to record a prima facie opinion, based on the
material on record, and is not expected to
hold a mini trial or to examine the defence
of the accused.

6. The procedure to be followed by the
Magistrate upon taking cognizance, on a
complaint, as per Sections 200, 202 and 204
of the Code and the degree of satisfaction to
be recorded at this stage would be required
to be referred to for the purpose of the
controversy involved in the present case.

7. Section 200 provides that the
Magistrate taking cognizance of an offence
on a complaint shall examine upon oath the
complainant and the witnesses present, if
any, and that the substance of such
examination shall be reduced to writing and
shall be signed by the complainant and the
witnesses, and also by the Magistrate. The
object of such examination is with a view to
ascertain whether there is a prima facie case
against the person accused of the offence in
the complaint, and to prevent the issue of
process on a complaint which is either false
or vexatious or intended only to harass such
person.

8. The object of section 202 is to
enable the Magistrate to form an opinion as
to whether the process is to be issued or not.
The purpose of the investigation to be
directed under this section is to help the
Magistrate in arriving at a decision as to the
issuance of process. The broad based inquiry
by the Magistrate, as contemplated under
this section, is with a view to enable him to
arrive at a decision as to whether he should
dismiss the complaint or whether he should
proceed to issue process upon the complaint.

9. The provisions contained under
sections 200, 202 and 204 of the Code and
the degree of satisfaction required to be
recorded at this stage by the Magistrate was
subject matter of consideration in S.W.
Palanitkar and Others v. State of Bihar
and Another and it was held that test which
was required to be applied was whether
there is "sufficient ground for proceeding"
and not whether there is "sufficient ground
for conviction". Referring to the earlier
decisions in the case of Nirmaljit Singh
Hoon v. State of West Bengal and
568 INDIAN LAW REPORTS ALLAHABAD SERIES
Another, Chandra Deo Singh v. Prokash
Chandra Bose, and Smt. Nagawwa v.
Veeranna Shivalingappa Konjalgi and
Others, it was stated that the scope of
inquiry under section 202 is limited only to
the ascertainment of the truth or falsehood
of the allegations made in the complaint (i)
on the material placed by the complainant
before the court; (ii) for the limited purpose
of finding out whether a prima facie case for
issue of process has been made out; (iii) for
deciding the question purely from the point
of view of the complainant without at all
adverting to any defence that the accused
may have.

10. The sufficiency of the material and
the test to be applied at the stage of issue of
process again came up for consideration in
the case of Nupur Talwar v. Central
Bureau of Investigation and Another and
it was reiterated that the limited purpose of
consideration of material at the stage of
issuing
process
being
tentative
as
distinguished from the actual evidence
produced during trial, the test to be applied
at the stage was whether the material placed
before the Magistrate was "sufficient for
proceeding against the accused" and not
"sufficient to prove and establish the guilt".

11. The object of the inquiry under
Section 202 is not akin to a trial, which can
only take place after issuance of process.
The inquiry made by the Magistrate, at this
stage, is only with a view to ascertain the
truth or falsehood of the complaint, with
reference to the intrinsic quality of the
statements made before him at the inquiry,
which would mean the complaint, the
statement on oath made by the complainant
and the statements made by persons
examined at the instance of the complainant.
At the stage of issue of process under
Section 204, the Magistrate is only to decide
whether there exists sufficient ground or not
for proceeding in the matter.

12. The aforementioned legal position
has been considered in a recent decision of
this Court in Sanjay Singh and Another
Vs. State of U.P. and Another and
followed in another decision in Pinkal
Singh @ Raghvendra Singh and Others
vs. State of U.P. and Another.

13. In the case at hand, the allegations
in the complaint have been found to be
supported in the statement made on oath by
the complainant during the course of
examination under section 200 and also by
the statements of the witnesses recorded
during the course of inquiry made by the
Magistrate under section 202. The order
summoning the accused petitioners passed
by the trial court indicates that the same has
been passed taking due consideration of the
material available on record. Reference has
been made to the statements under Sections
200 and 202 and also the fact that the
statements recorded support the complaint
allegations. The order passed by the court
below issuing process thus does not suffer
from any infirmity so as to warrant
interference by this Court. The order passed
by the revisional court affirming the
summoning order of the Magistrate, also
cannot be faulted, for the same reason.

14. Counsel for the petitioners has not
been able to dispute the aforesaid factual and
legal position.

15. Having regard to the aforesaid, this
Court is not inclined to entertain this petition
in exercise of its supervisory power under
Article 227 of the Constitution of India.

16. The petition stands dismissed
accordingly.
5 All. Maharaj Kumari Vishnupriya Vs. State of U.P. & Ors.
569
----------
(2024) 5 ILRA 569
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2024

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Matters U/A 227 No. 8348 of 2023 (CIVIL)

Maharaj Kumari Vishnupriya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rithvik Upadhyay, Sri V.K. Upadhyay (Sr.
Adv.)

Counsel for the Respondents:
C.S.C., Sri Sanjay Singh, Sri Saurabh Raj
Srivastava, Sri Anil Kumar (Sr. Adv.)

Criminal Law - Protection of Women from
Domestic Violence Act, 2005 - Sections
3, 12, 23, 18 &22 - The Code of Criminal
Procedure, 1973 - Section 340 -
Applicability of DV Act is due to domestic
violence inflicted on petitioner who is in
a domestic relationship with respondent
no.2, related by consanguinity - The
protection order u/s 18 is being sought in
application
u/s
23

in respect
of
immovable property - Till the issue of
title with regard to properties is finally
decided
by
competent
court,
the
petitioner claiming to be an 'aggrieved
person' in a 'domestic relationship', is
subjected to 'domestic violence', entitled
to claim benefits and protection - Civil
Court have jurisdiction to determine
rights of parties and make appropriate
decrees - Where in application u/s 12,
permissible
amendment
in
view
of
subsequent
developments
is
made,
additional permissible relief is sought, a
fresh application u/s 23 would be
maintainable - Protection order to be
passed by Magistrate on being satisfied
that domestic violence had taken place or
was likely to take place - Direction to
petitioner to move application before
civil court, where civil suit is pending,
pertaining to properties for temporary
injunction
or
protection
order
-
Directions accordingly. (Para 26, 27, 29,
30)

Petition disposed. (E-13)

List of Cases cited:

1. Satish Chander Ahuja Vs Sneha Ahuja, (2021)
1 SCC 414

2. Himani Alloys Ltd. Vs Tata Steel Ltd, (2011) 15
SCC 273

3. Kunapareddy Vs Kunapareddy Swarna Kumari
&oOrs., (2016) 11 SCC 774

4. Vaishali Abhimanyu Joshi Vs Nanasaheb Gopal
Joshi, (2017) 14 SCC 373

5. Deoki Panjhiyara Vs Shashi Bhushan Narayan
Azad & anr, (2013) 2 SCC 137

(Delivered by Hon'ble Jayant Banerji, J.)

1. Heard Shri V.K. Upadhyay, learned
Senior Advocate assisted by Shri Ritvik
Upadhya, learned counsel for the petitioner
and Shri Anil Kumar Srivastava, learned
Senior Advocate assisted by Shri Saurabh
Raj Srivastava, learned counsel appearing
for the respondents.

2. This petition has been filed seeking
to set aside the order dated 2.6.2023 passed
by the Additional District Judge, Court No.
14, Varanasi in Criminal Appeal No. 70 of
2022 (Maharaj Kumari Vishnupriya vs.
State of U.P. and others) with a further relief
to prohibit and restrain the respondents from
committing any act of economic abuse
against the petitioner by alienating or
creating in any manner whatsoever third
party interest over any part of the properties