# Kalam Uddin v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 553
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Matter under Article 227 No. 4772 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalam-uddin-v-state-of-u-p-ors-50323
- **Pages:** 7

## Headnote

A. Criminal Law - Constitution of India,
1950-Article 227 - Criminal Procedure
Code, 1973-Section 73 & 311 - Indian
Penal Code, 1860-Sections 147, 148, 307,
323,
341
&
504-Learned
Magistrate
rejected the application moved by the
petitioner-NBW issued to the absconding
accused-after
lapse
of
four
months
accused
could
not
be
apprehendedLearned Magistrate cannot issue coercive
process
yet
he
can
monitor
the
investigation, he can ask to produce case
diary to ensure fair investigation-This is
settled law that Magistrate are not to
interfere in process of investigation but at
the same time Apex Court sent a caution
in Sakiri Vasu Case that his meaningful
indulgence
in
the
investigation
is
desirable-The
impugned
order
is
set
aside.(Para 1 to 19)

The petition is allowed. (E-6)

List of Cases cited:

## Text

6 All. Kalam Uddin Vs. State of U.P. & Ors.
553
5 CPC and allow the application 24-Ga and
issue orders for adjustment of amount so
deposited under Section 30 of the Act of
1972 against monthly deposit of rent as
provided in Order XV Rule 5 CPC.

49. After considering the provision of
Order XV Rule 5 CPC as discussed
hereinabove and law laid down by the
Courts, this Court is of the firm view that
so far as first part of Order XV Rule 5 CPC
with regard to deposit of arrears of rent on
or before first hearing of the suit, amount
so deposited under Section 30 of the Act of
1972 can be adjusted, but so far as second
part of Order XV Rule 5 CPC, i.e. monthly
deposit of rent is concerned, the amount so
deposited under Section 30 of the Act of
1972 cannot be adjusted and it is
mandatory requirement to deposit the same
before the Court where the suit is pending.

50. Therefore under such facts and
circumstance of the case as well as law
discussed hereinabove, I find no illegality
in the impugned orders dated 16.08.2018
and 15.12.2022.

51. Petition lacks merit and is
accordingly dismissed.

52. No order as to costs.
----------
(2023) 6 ILRA 553
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matter under Article 227 No. 4772 of 2023

Kalam Uddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri M.A. Siddiqui

Counsel for the Respondents:
G.A.

A. Criminal Law - Constitution of India,
1950-Article 227 - Criminal Procedure
Code, 1973-Section 73 & 311 - Indian
Penal Code, 1860-Sections 147, 148, 307,
323,
341
&
504-Learned
Magistrate
rejected the application moved by the
petitioner-NBW issued to the absconding
accused-after
lapse
of
four
months
accused
could
not
be
apprehendedLearned Magistrate cannot issue coercive
process
yet
he
can
monitor
the
investigation, he can ask to produce case
diary to ensure fair investigation-This is
settled law that Magistrate are not to
interfere in process of investigation but at
the same time Apex Court sent a caution
in Sakiri Vasu Case that his meaningful
indulgence
in
the
investigation
is
desirable-The
impugned
order
is
set
aside.(Para 1 to 19)

The petition is allowed. (E-6)

List of Cases cited:
1. Sakiri Vasu Vs St. of U.P. (2008) AIR SC 907

2. St. thru CBI Vs Dawood Ibrahim Kaskar &
ors.(2000) 10 SCC 438

3. Sunil Tyagi Vs Govt. of NCT of Delhi & anr.,
Crl. M.C. No. 5238 of 2013

4. Jaisukh @ Jayesh Muljibhai Ranparia Vs St. of
Guj. CRLR No. 535 of 2016

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. The instant writ petition under
Article 227 of the Constitution of India has
been filed by the petitioner challenging the
554 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 3.3.2023 passed by C.J.M.,
Prayagraj whereby an application moved
by the petitioner in Case No. 1556 of 2022
(State vs. Lallu @ Abdul Mahboob and
others) under Sections 147, 148, 307, 323,
341, 504 IPC, P.S. Mau Aima, District
Prayagraj, has been dismissed.

2. The brief facts of the case relevant
for the purpose of present writ petition are
that the petitioner lodged an F.I.R. on
12.8.2022 at 13:52 hours against Waseem
@ Gabbar and five others, named accused
persons with averments that on 12.8.2022,
the informant was coming back to home at
around 10:00 AM after participating in
Fatiya at the place of his friend Munnan,
the
accused
Waseem
acting
under
conspiracy,
way
laid
him
and
his
companions; they started abusing him and
his companions Mohd. Amir, Jafee Arsad,
Mohd. Izhar and on exhortation of accused
persons; accused Shadab had opened fire
on him in which he suffered firearm injury
on his left hand and on being given beating
by lathi danda by accused persons, Mohd.
Amir, Mohd. Izhar and Jafee Arshad
suffered head injury.

3. In injury report of the informant
Kalamuddin, one lacerated wound 1.5 X 0.3
cm muscle deep was found on his left hand,
which
was
referred
for
x-ray;
after
conducting x-ray examination, he was
admitted to SRN hospital Prayagraj on
12.8.2022 and was discharged on 18.8.2022;
doctor has reported that patient managed
operatively by foreign body removal from
left arm on 16.8.2022; other injured persons,
who also suffered head injury and substantial
injury on their person, however, in x-ray of
his skull, no fracture was found; police
investigated the offence and submitted
charge-sheet against four named accused
persons in aforesaid charges on 5.11.2022.
However, on account of accused Waseem @
Gabbar have still at large, investigation is
kept pending against him. Present petitioner
being aggrieved by inaction of police in
apprehending accused Waseem for long time
moved complaint to police commissioner and
other higher authorities of police through
registered post on 23.12.2022, wherein, he
stated that NBW was issued against him on
13.10.2022 but even after lapse of period of
two months no action has been taken against
him under Section 82 Cr.P.C. and said
accused is threatening him and his family
members to withdraw the case lodged against
him; petitioner also moved an application on
3.3.2023 before the court below, wherein, he
stated that accused Waseem has not been
arrested by the police as yet despite the fact
that court has issued warrant of arrest against
him on 13.10.2022 but failed to arrest him
even after lapse of four months thereafter and
said accused is threatening the informant and
injured witnesses and their family members
to withdraw cases against him; he also stated
that his brother is serving in police
department
and
for
that
reason
an
understanding has reached between him and
police officials that he will not be arrested
and his name will be dropped from the case;
he prayed for ensuring arrest of said accused
Waseem
by
complying
relevant
legal
provision; the court below, in a cryptic order
dismissed the said application by observing
that as the investigation has carried out in the
matter, a person cannot be directed to be
arrested during investigation.

4. Heard learned counsel for the
petitioner, learned AGA for the Staterespondent and perused the material on
record.

5. Learned counsel has placed
reliance on judgement of Hon'ble Apex
Court in Sakiri Vasu vs. State of U.P.,
6 All. Kalam Uddin Vs. State of U.P. & Ors.
555
2008 AIR (SC) 907, wherein, Hon'ble
Apex court has illustrated the scope of
Section 154, 156(3) and 482 Cr.P.C. and
observed as under:

"if a person has a grievance that the
police station is not registering his FIR
under Section 154 Cr.P.C., then he can
approach the Superintendent of Police
under Section 154(3) Cr.P.C. by an
application in writing. Even if that does not
yield any satisfactory result in the sense
that either the FIR is still not registered, or
that even after registering it no proper
investigation is held, it is open to the
aggrieved person to file an application
under Section 156 (3) Cr.P.C. before the
learned Magistrate concerned. If such an
application under Section 156 (3) is filed
before the Magistrate, the Magistrate can
direct the FIR to be registered and also can
direct a proper investigation to be made, in
a case where, according to the aggrieved
person, no proper investigation was made.
The Magistrate can also under the same
provision monitor the investigation to
ensure a proper investigation.

6. Even if an FIR has been registered
and even if the police has made the
investigation, or is actually making the
investigation, which the aggrieved person
feels is not proper, such a person can
approach the Magistrate under Section
156(3) Cr.P.C., and if the Magistrate is
satisfied,
he
can
order
a
proper
investigation and take other suitable steps
and pass such order as he thinks necessary
for ensuring a proper investigation. All
these powers a Magistrate enjoys under
section 156(3) Cr.P.C.

7. Section 156(3) Cr.P.C. provides for
a check by the Magistrate on the police
performing its duties under Chapter XII
Cr.P.C. In cases where the Magistrate finds
that the police has not done its duty of
investigating the case at all, or has not done
it satisfactorily, he can issue a direction to
the police to do the investigation properly,
and can monitor the same.

8. Section 156(3) Cr.P.C. is wide
enough to include all such powers in a
Magistrate
which
are
necessary
for
ensuring a proper investigation, and it
includes the power to order registration of
an F.I.R. and of ordering a proper
investigation if the Magistrate is satisfied
that a proper investigation has not been
done, or is not being done by the police.
Section 156(3) Cr.P.C., though briefly
worded, in our opinion, is very wide and it
will include all such incidental powers as
are necessary for ensuring a proper
investigation."

9. A perusal of aforesaid dictum of
Hon'ble Apex Court reveals that Hon'ble
Apex Court recognized the power of
Magistrate to monitor the investigation to
ensure that investigation is being done
properly (though he cannot investigate
himself). What will be the scope of
monitoring the investigation by the police
is a matter of perception in present context.

10. Section 73 of Cr.P.C. provides that
The Chief Judicial Magistrate or a
Magistrate of the first class may direct a
warrant to any person within his local
jurisdiction for the arrest of any escaped
convict, proclaimed offender or of any
person who is accused of a non- bailable
offence and is evading arrest. So the bare
reading
of
the
section
shows
that
Magistrate has a discretion to issue NonBailable Warrant (NBW) and the conditions
under which he can issue. Whenever
Discretion comes it has to be exercised
556 INDIAN LAW REPORTS ALLAHABAD SERIES
judiciously. This find in usual course that
police officials come to the court prior for
issuance of warrant of arrest against some
warranted accused on the ground that he
evading arrest and he committed non
bailable offence as issuance of NBW
involves curtailment or deprivation of
personal liberty of a person which is most
previous right of an individual, therefore,
the courts have to be cautious before
issuing NBW; court has to strike balance
between the liberty which is precious for an
individual as well as the public welfare,
interest and maintenance of law and order
which requires apprehension of an accused
who has allegedly committed some non
bailable or serious offence.

11. Hon'ble Supreme court in State
through
CBI vs.
Dawood
Ibrahim
Kaskar and others, (2000) 10 SCC 438
considered the issue as to whether arrest
warrant can be issued on the stage of
investigation and finally settled it while
holding that Section 73 of Cr.P.C. confers a
power upon a Magistrate to issue a warrant
and that it can be exercised by him during
investigation also. To explain this point,
Court gave example of Section 155 of the
Code, which provides that police officer
can investigate into a non cognizable case
with the order of a Magistrate and may
exercise the same powers in respect of the
investigation which he may exercise in a
cognizable case, except that he cannot
arrest without warrant. If with the order of
a Magistrate the police starts investigation
into a non- cognizable and non-bailable
offence, (like Section 466 or 467 of the
I.P.C.) and if during investigation the
Investigating Officer intends to arrest the
person accused of the offence he has to
seek for and obtain a warrant of arrest from
the Magistrate. If the accused evades the
arrest, the only course left open to the
Investigating
Officer
to
ensure
his
presence, would be to ask the Magistrate to
invoke his powers under Section 73 and
thereafter those relating to proclamation
and attachment. In such an eventuality, the
Magistrate can legitimately exercise his
power under Section 73 for the person to be
apprehended is accused of a non-bailable
offence and is evading arrest. The very fact
that police officer may arrest without
warrant of Magistrate under Section 155
Cr.P.C. is implied that Magistrate may issue
a warrant even at the stage of Section 155
Cr.P.C.

12. Section 73 of the Code is of
general application and that in course of the
investigation a Court can issue a warrant in
exercise of power thereunder to apprehend,
inter alia, a person who is accused of a nonbailable offence and is evading arrest.
Since warrant is and can be issued for
appearance before the court only and only
for production of accused before the police
in aid of investigation, hence authorization
for detention in police custody is neither to
be given as a matter of course nor on the
mere asking of the police, but only after
exercise of judicial discretion based on
materials placed before him. The reason
behind seeking warrant of arrest for an
accused,
suspect
of
committing
non
bailable offence at the instance of police,
who is otherwise empowered to arrest such
person without a warrant by virtue of
power given under Section 41 Cr.P.C. for
under Section 24 of the Police Act is that it
can be possible that police after completing
the investigation even at the stage of
submission of charge-sheet is still unable to
arrest
the
accused;
accused
keeps
absconding and I.O. may ask the court to
accept the charge-sheet in abscondance of
the accused with submission that inspite of
sufficient efforts to trace the accused he
6 All. Kalam Uddin Vs. State of U.P. & Ors.
557
could not arrest him and he asks the court
to take back of executed arrest and issue
proclamation against the accused under
Section 82 Cr.P.C.; there is no gainsaying
the fact that process under Section 82
Cr.P.C. can only be issued by the
Magistrate after issuance of NBW and after
expiry of one month of issuance of process
under Section 82 Cr.P.C. and thereafter
only the process under Section 83 Cr.P.C.
can be issued. The court can give halt to try
such accused after declaring him as
absconder in terms of Section 299 Cr.P.C.
on recording of evidence of witnesses
produced by prosecution. It is needless to
say that provision of proclamation and
attachment are envisaged under Section 82
and 83 Cr.P.C. is to compel the appearance
of accused who is evading the arrest; police
cannot
initiate
the
proceeding
under
Section 82/83 Cr.P.C. against absconding
accused unless the court is issued warrant
of arrest prior to that. Resultantly, if the
police has to take the coercive measures for
the apprehension of such a person it has to
approach the Court to issue warrant of
arrest under Section 73 and if need be to
invoke the provisions of part `C' of Chapter
VI (Section 83 to 86).

13. The Delhi High Court in Sunil
Tyagi vs Govt. of NCT of Delhi & Anr in
Crl. M.C. No. 5238 of 2013 decided on
June 28, 2021, has laid down broad
guidelines to ensure the NBWs are issued
only against the correct persons during the
stage of investigation, which are as follows:

14. Issuance of warrant of arrest
where the offence is cognizable & nonbailable and proposed warrantee is evading
his arrest.

While applying for warrant, the
Investigating
Officer
must
show
the
Magistrate his efforts made for arresting the
proposed warrantee.

Investigating Officer must show that
the proposed warrantee
is ordinarily
residing at or was very recently residing at
some address which is in the knowledge of
the IO through any manner and that now
the proposed warrantee is not available at
that address due to his deliberate intention
to avoid custody in the case in question.

No warrant shall be issued against a
proposed warrantee merely on the ground
that he is not available for the IO/ Police
officials for the purpose of joining him in
the investigation.

Investigating Officer must satisfy the
criteria that in his belief and on the basis of
material collected by him/previous IO
during the investigation, he is of the
opinion that the proposed warrantee is
involved in the case as an accused.

Only a strong suspicion or information
of secret informer may not be treated as a
ground for issuance of warrant of arrest.

No warrant shall be issued against
proposed warrantee unless the Police
Officer has categorically stated in writing
that there exists grounds of arrest and such
grounds are not only legally admissible but
are also sufficient to sustain filing of a
charge sheet against him in the Court.

Investigating Officer must show that
in his opinion custodial interrogation of the
proposed warrantee is necessary for the just
and fair investigation of the offence(s) in
question.

The Magistrate must record his
satisfaction in respect of the fact prima
facie involvement of proposed warrantee,
requirement of his custodial interrogation
and that he is evading his arrest

The Magistrate than can exercise his
powers to issue warrant of arrest even at
the stage of investigation in cognizable &
non-bailable offences.
558 INDIAN LAW REPORTS ALLAHABAD SERIES

Such prayers shall be endorsed by the
SHOs and Asstt. P.P./Addl. P.P./Chief P.P.
of the Court as well with a declaration that
they are satisfied that it is a fit case for
issuance of NBW.

The Investigating Officer shall share
the material collected by him during
investigation before the Court on the basis
of which the accused is connected to the
crime.

15. The Gujrat High Court in
Criminal Revision No. 535 of 2016,
Jaisukh @ Jayesh Muljibhai Ranparia
vs. State of Gujrat in judgement dated
20.10.2016 also held that Section 73 of the
Code is of general application and that in
course of the investigation a Court can
issue a warrant in exercise of power
thereunder to apprehend, inter-alia, a
person, who is accused of a non-bailable
offence and is evading arrest. This is settled
law that Magistrate or criminal courts are
not to interfere in process of investigation
carried out by the police in performance of
its statutory duty. However, the monitoring
of process of investigation by Magistrate
has not been prohibited under law rather it
is recognized by reasoned judgement of
Hon'ble Apex Court in Sakiri Vasu (supra),
wherein, such power has been readwith
section 156(3) of Cr.P.C.; this reflects the
role of Magistrate during investigation and
recognition of his social function; his
meaningful indulgence in the investigation
is desirable. At the same time the Apex
Court has sent a caution that a Magistrate
ought not investigate the case himself.
However, Magistrate is empowered to
monitor the investigation with a view to
ensure that there is free and fair trial. The
Malimath
Committee
has
also
recommended that a provision may be
added
under
Section
311
Cr.P.C.
empowering
the
Magistrate
to
issue
direction
to
the
police
regarding
investigation to I.O.

16.

In
present
case,
learned
Magistrate in a very cryptic and cursory
manner rejected the application moved by
the petitioner without considering the
settled proposition of law.

17. According to the petitioner, NBW
was issued to absconding accused Waseem
@ Gabbar by same court on 13.10.2022
and even after lapse of four months,
accused could not be apprehended. If the
learned Magistrate or criminal courts issued
warrant of arrest against the accused then it
is duty for the court to seek whereabouts of
said warrant as to what action has been
taken by the police to serve the warrant
upon the absconding accused whether he
has absconded or evading arrest and in that
case; whether process under Section 82
Cr.P.C. is desirable against him or not. He
can also direct the I.O. to produce case
diary for that purpose.

18. It is true that court cannot issue
coercive process on its own during course
of investigation to compel or direct the
police to arrest an accused or on direct
issuance of the process under Section 82/83
Cr.P.C.
against
the
accused
without
involvement of the I.O. and complying
necessary legal formalities as provided
under chapter 6-C of the code, yet
Magistrate can monitor the investigation
and seek a report from the police as stated
above;
otherwise
norms
of
fair
investigation will be jeopardized it is also
likely to delay the trial of the case of the
co-accused persons, who have already
been chargesheeted. Therefore, in the light
of foregoing discussions, the impugned
order is not sustainable and liable to be set
aside.
6 All. Akash Singh Vs. State of U.P. & Anr.
559

19. The present writ petition is
allowed.
The
impugned
order
dated
3.3.2023 passed by C.J.M., Prayagraj is set
aside.

20. The court is directed to decide the
application moved by the petitioner on
3.3.2023 afresh after giving opportunity of
hearing to the informant as well as other
stakeholders, at the earliest in the light of
observations made hereinabove.
----------
(2023) 6 ILRA 559
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 5577 of 2023

Akash Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Mata Pher

Counsel for the Opp. Parties:
G.A., Sri R.S. Dubey, Savita Dubey

Criminal Law- The Code of Criminal
Procedure, 1973-Section 482- A finding on
the veracity of a material relied on by the
prosecution
in
a
case
where
the
allegations levelled by the prosecution
disclose a cognizable offence, is not a
consideration for the High Court while
exercising its power under Section 482
Cr.P.C- it is clear that the opposite party
no. 2 had approached the Court in order to
wreak vengeance and exert pressure upon
the applicant for earlier enmity which has
been mentioned in the order dated
04.04.2022 and the same could not be
disputed by learned counsel for the
opposite party. Thus, the present case
falls under the Category (7) of Paragraph108 as spelt by the Supreme Court in
Bhajan Lal. (Para 16 & 20)

Petition allowed. (E-15)

List of Cases cited:

1. St. of Haryana & ors. v. Bhajan Lal & ors. AIR
1992 SC 604

2. R.P. Kapur v St. of Punjab AIR 1960 SC 866

3. Eicher Tractors Ltd. v. Harihar Singh (2008)
16 SCC 763

4. West Bengal St. Electricity Board v. Dilip
Kumar Ray AIR 2007 SC 976

5. Neeharika Infrastructure (P) Ltd. Vs St. of
Mah. 2021 SCC OnLine 315 AIR 2021 SC 5711

6. Mahendra K.C. v. St. of Karn. & ors. AIR 2021
SC 5711

7. Shafiya Khan alias Shakuntala Prajapati Vs St.
of Uttar Pradesh & anr.(2022) 4 SCC 549

8. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr.(2017) 9 SCC
641

9. Ramveer Upadhyay & anr.Vs St. of U.P. &
anr.2022 SCC OnLine 484

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. The applicant has preferred this
application under Section 482 Cr.P.C.
challenging the proceedings of Session
Case No. 538 of 2022 (Complaint No.
50/2022)1, under Section 354 IPC and
Section 7/8 Protection of Children from
Sexual Offences Act, 20122, Police Station
Tarkulawa, District Deoria, as well as
summoning order dated 01.11.2022 passed
by the Additional Sessions Judge/ Special
Judge, POCSO, Court No. 1, Deoria passed
in the aforesaid case, pending in the Court