# Kamlesh Yadav & Ors v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Application U/S 482 No. 412 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-yadav-ors-v-state-of-u-p-anr-51056
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 216 & 482 - Indian Penal
Code, 1860 - Sections 147, 148, 149, 152,
307, 323, 332, 337, 353, 393, 504 & 506 -
Prevention of Damage to Public Property
Act, 1984 - Sections 3 & 4 - Criminal Law
(Amendment) Act, 1932 - Section 7 -
Application u/s 482 - for quashing the
impugned criminal proceedings, as well as
cognizance order, charge-sheet and order by
which application for deletion of charges was
rejected - incident - alleged that offence of
pelting of bricks/stones, damaging to public
property, attempt to murder, robbery - FIR -
Investigation - Recovery memo -plea taken by
the petitioner that, there was no prima facie
evidence for serious allegations like attempt to
murder and robbery and investigation was
cursory in manner - further, application for
deletion of charges was rejected by court
mechanically without proper scrutiny - court
finds that, during trial all the parties shall be
afforded an ample opportunity of hearing to
adduce their evidence and to produce the
material and while framing charges detailed
scrutiny is not required, prima facie evidence
suffices - court emphasized that, it is also trite
law that during the course of trial the learned
trial court shall scrutinize all the charges so
framed deeply and unless and until the
charge/charges
are
proved
beyond
all
reasonable doubts the accused persons may not
be punished under such charges - held that,
there is no infirmity or illegality in the impugned
orders and trial court rightly rejected the
application of the petitioner - accordingly,
Application is dismissed.
(Para - 12, 13, 14)

Application Dismissed. (E-11)

List of Cases cited:

## Text

142 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit wherein it has been stated that the
Society was registered in the year 1965.
Upon expiry of the term of the Members of
the committee of management of the
Society, a Committee of administrators was
constituted by means of the office order
dated 18.07.2009, whereby Sri Suneel
Chaudhary, Executive Engineer, U.P. Awas
Evam Vikas Parishad, Lucknow was
appointed as its Chairman, the applicant,
who was Cooperative Officer (Housing),
U.P. Awas Evas Vikas Parishad and one
Sanjay Sharma, Cooperative Inspector were
appointed as members of the Committee of
administrators.
Subsequently,
the
Committee of administrators was modified
by means of an order dated 14.12.2009
passed
by
the
Joint
Housing
Commissioner/Joint Registrar, U.P. Awas
Evas Vikas Parishad, Cooperative Section,
whereby the applicant was appointed as the
Chairman
of
the
Committee
of
administrators of the Society.

15. The applicant was working as an
officer in U.P. Awas Evas Vikas Parishad
and he was appointed initially as a member
and subsequently as the Chairperson of the
Committee of administrators of the Society
under Section 35 of the U.P. Cooperative
Society Act, 1965 as the term of the
Managing Committee of the Society had
come to an end. The applicant was not
holding any position in the Cooperative
Society independent of his position as a
public servant.

16. Section 2(o) of the U.P.
Cooperative Society Act, 1965 provides
that an Administrator of a Cooperative
Society,
whether
with
or
without
remuneration, shall be an officer of the
cooperative society and Section 124 of the
U.P.
Cooperative
Society
Act,
1965
provides that any officer of a cooperative
society shall be deemed to be a public
servant within the meaning of Section 21 of
the Indian Penal Code.

17. As the applicant was discharging
his duties as the Chairperson of the
Committee of administrators of the Society
having been assigned the aforesaid duty
under Section 35 of the U.P. Cooperative
Societies Act for the reason that he was the
Assistant Housing Commissioner/ Assistant
Registrar U.P. Awas Evas Vikas Parishad,
the contention made in para 18 of the
affidavit filed in support of the application,
the applicant is not a Government servant
appears to be false on the basis of
documents annexed with the application
itself.
The
applicant
is
a
person
remunerated for the performance of the
public duty by the salary paid by the
Government and, therefore, he is a public
servant within the meaning of the term
given in Section 2 (c) of the Prevention of
Corruption Act, 1988.

18. In view of the aforesaid
discussion, I am of the considered view that
the applicant is a public servant as defined
under Section 2(c) of the Prevention of
Corruption Act and he can be charged for
commission of the offence under Section 7
of the Prevention of Corruption Act, 1988.
The ground for seeking the applicant's
discharge, that the applicant is not a public
servant, is without any force.

19. There is no illegality in the
impugned order dated 06.11.2023 passed
by the trial court. The applicant lacks merit
and is hereby dismissed.
----------
(2024) 1 ILRA 142
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.01.2024
1 All. Kamlesh Yadav & Ors. Vs. State of U.P. & Anr.
143
BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 412 of 2024

Kamlesh Yadav & Ors. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Shiv Ram Tewari, Mukesh Kumar Tiwari

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 216 & 482 - Indian Penal
Code, 1860 - Sections 147, 148, 149, 152,
307, 323, 332, 337, 353, 393, 504 & 506 -
Prevention of Damage to Public Property
Act, 1984 - Sections 3 & 4 - Criminal Law
(Amendment) Act, 1932 - Section 7 -
Application u/s 482 - for quashing the
impugned criminal proceedings, as well as
cognizance order, charge-sheet and order by
which application for deletion of charges was
rejected - incident - alleged that offence of
pelting of bricks/stones, damaging to public
property, attempt to murder, robbery - FIR -
Investigation - Recovery memo -plea taken by
the petitioner that, there was no prima facie
evidence for serious allegations like attempt to
murder and robbery and investigation was
cursory in manner - further, application for
deletion of charges was rejected by court
mechanically without proper scrutiny - court
finds that, during trial all the parties shall be
afforded an ample opportunity of hearing to
adduce their evidence and to produce the
material and while framing charges detailed
scrutiny is not required, prima facie evidence
suffices - court emphasized that, it is also trite
law that during the course of trial the learned
trial court shall scrutinize all the charges so
framed deeply and unless and until the
charge/charges
are
proved
beyond
all
reasonable doubts the accused persons may not
be punished under such charges - held that,
there is no infirmity or illegality in the impugned
orders and trial court rightly rejected the
application of the petitioner - accordingly,
Application is dismissed.
(Para - 12, 13, 14)

Application Dismissed. (E-11)

List of Cases cited:

1. P. Kartika Lakshmi Vs Shri Ganesh & anr. -
2017 vol. 3 SCC 347,

2. Jasvinder Saini & ors. Vs St. (Government of
NCT of Delhi) - 2013 vol. 7 SCC 256,

3. Sunil Kumar Vs St. of UP & anr.- 2023 Law
Suit (SC) 751,

4. Hanuman Prasad Pandey Vs St. of UP & anr.
- Application (U/s 482 Cr.P.C.) No. 10659/2023.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Shiv Ram Tewari,
learned counsel for the petitioners and Sri
Aniruddha
Kumar
Singh,
learned
Additional Government Advocate-I for the
State.

2. By means of this petition filed
under Section 482 Cr.P.C., the petitioners
have prayed for the following reliefs:-

"(i) To set aside the entire
criminal proceedings of S.T. No.156 of
2022 (State vs. Kamlesh Kumar and others)
pending in the Court of learned Sessions
Judge, Shrawasti arising out of Case Crime
No.54 of 2021, under Sections 147, 148,
149, 332, 353, 337, 393, 152, 323, 307, 504
& 506 I.P.C. and Section 3/4 of Prevention
of Damage to Public Property Act, 1984
and
Section
7
of
Criminal
Law
(Amendment) Act, 1932, Police StationGilaula, District-Shrawasti along with
cognizance order dated 28.07.2021 and the
Charge-sheet dated 30.06.2021, so far as it
144 INDIAN LAW REPORTS ALLAHABAD SERIES
relates to the present petitioners, as
contained in Annexure No.1 to this petition.

(ii) To set aside the impugned
order dated 23.05.2023 passed by the
learned Sessions Judge, Shrawasti, as
contained in Annexure No.5 to this petition.

(iii)
To
say
the
further
proceedings of S.T. No.156 of 2022 (State
vs. Kamlesh Kumar and others) pending in
the court of learned Sessions Judge,
Shrawasti.

(iv) Any other order or direction
as this Hon'ble Court may deem just, fit
and proper may also be passed in favour of
the petitioners."

3. Attention has been drawn towards
the First Information Report (in short
F.I.R.) dated 16.04.2021 whereby the false
and misconceived allegations have been
levelled against the petitioners by one
Inspector
Incharge,
Sri
Kamla
Kant
Tripathi, the informant.

4. Learned counsel for the petitioners
has also stated that so far as the allegations
relating to Section 307 and 393 I.P.C. are
concerned, there is no iota of evidence and
material to suggest that those offences
have, prima-facie, made out. However, the
investigation
in
question
has
been
conducted in a cursory manner without
collecting the relevant material and without
recording the statements of the concerning
persons filed the impugned charge-sheet
under various sections including Sections
307 and 393 I.P.C.

5. Further attention has been drawn
towards Annexure No.6 of the petition,
which is examination of Inspector Incharge,
Sri Kamla Kant Tripathi, the informant
wherein he has himself stated that he was
not present on the spot when the alleged
incident has taken place but the SubInspector Sri Kuldeep Rai and Sri Santosh
Kumar were present. The Inspector Incharge
has further stated that when he reached at
the place, he saw that the public property
has been damaged and such damage has
been seen by the informant himself along
with his other officials. He has further stated
that he is not sure as to whether the bricks /
stones have been recovered from the place.
However, there is no mention of that fact in
the recovery memo.

6. Learned counsel for the petitioners
has therefore submitted that despite the
aforesaid fact when the charge under various
sections including Sections 307 & 393 I.P.C.
have been framed, which have prima-facie
not made out on the basis of material and
evidence available, an application for
deletion of the charge under Section 307
I.P.C. has been filed before the learned trial
court concerned and the learned trial court in
a mechanical manner, without appreciating
the legal and factual arguments rejected such
application vide order dated 23.05.2023
(Annexure No.5). The aforesaid application
was rejected mainly on the ground that at the
time of framing charges the trial court does
not scrutinize all the material and evidences
in detail inasmuch as such material/
evidence is scrutinized during the course of
trial but only on the basis of material
available on record, on the basis of primafacie opinion the charge/ charges is/ are
framed. The learned trial court has further
indicated that since the medical examination
report of the police personnels is available
on the record, therefore, at the time of
framing the charges this fact may not be
scrutinized that such injury was fatal or not
as the aforesaid fact may be scrutinized /
tested during the course of trial.

7. Learned counsel for the petitioners
has further drawn attention of this Court
1 All. Kamlesh Yadav & Ors. Vs. State of U.P. & Anr.
145
towards an judgment of the Apex Court
rendered in the case in re: Jasvinder Saini
and others vs. State (Government of NCT
of Delhi) reported in (2013) 7 SCC 256
and Sunil Kumar vs. State of U.P. &
another reported in 2023 LawSuit (SC)
751 as well as placed reliance of the order
of this Court dated 31.10.2023 passed in
Application (U/S 482 Cr.P.C.) No.10659 of
2023: Hanuman Prasad Pandey vs. State
of U.P. and another to submit that the
application of the petitioners for deletion of
charge of Section 307 I.P.C. should be
allowed and those charges may be deleted
by the court under Section 216 Cr.P.C.

8. Learned counsel for the petitioner
has referred para-11 of the judgment of
Apex Court rendered in the case in re:
Jasvinder
Saini
and
others
(supra)
whereby the Apex Court has held that the
court invoking powers to add or alter any
charge whenever the court finds that the
defective charge has been made or finds
that new charge is considered necessary
after commencement of the trial.

9. Per contra, Sri Aniruddha Kumar
Singh, learned Additional Government
Advocate-I has stated that there is no
infirmity, illegality or apparent error in the
order dated 23.05.2023 passed by the
learned Sessions Judge, Shrawasti rejecting
the application of the petitioners whereby
the deletion of the charge framed under
Section 307 has been prayed.

10. Sri Singh has further submitted
that the learned Sessions Judge in para-6 of
the order has categorically indicated that
there is allegation against the petitioners
and others in respect of various sections
including Section 307 I.P.C. and so as to
substantiate those allegations the injury
report of the police personnels was also
available on the record, therefore, the
learned trial court has rightly observed that
such allegations and material would be
sufficient to arrive on prima-facie opinion
to the effect that the charge under Section
307 I.P.C. may be framed.

11. Sri Singh has further submitted
that the learned trial court has also rightly
observed that when so many persons were
throwing bricks and stones upon other side
as well as the police party and injury report
is available on the record, thereofre, it
would be examine during the course of trial
as to whether such offence is liable to
establish or not after appreciating the
evidence and material so produced by both
the sides i.e. the prosecution and the
defence.

12. Sri Aniruddha Kumar Singh has
also placed reliance upon the decision of
Apex Court in the case in re: P. Kartika
Lakshmi vs. Sri Ganesh and another
reported in (2017) 3 SCC 347 referring
para-7 wherein the Apex Court has held
that the power invocation of Section 216
Cr.P.C. is exclusively confined with the
Court as an enabling provision for the
purpose of alteration or addition of any
charge at any time before pronouncement
of the judgment. The Apex Court clarified
that no party, neither de facto complainant
nor the accused or for that matter the
prosecution has any vested right to seek
any addition or alteration of charge,
because it is not provided under Section
216 Cr.P.C.

13. Therefore, Sri Singh has further
submitted that on the application of the
petitioners/ accused the charge may not be
deleted and since the learned trial court has
given its finding/ observation to the effect
that the charge of Section 307 at this stage
146 INDIAN LAW REPORTS ALLAHABAD SERIES
may not be deleted, therefore, there is no
infirmity or illegality in the order dated
23.05.2023.

14. Having heard learned counsel for
the parties and having perused the material
available on record as well as having regard
to the case laws so referred by the parties,
which have been considered above, I am
also of the considered opinion that at the
time of framing charges it is incumbent
upon the trial court to make scrutiny of the
allegations and the material available on the
record inasmuch as if, prima-facie, the
material is available on record and after
perusal of the same the learned trial court is
of the opinion that such charge may be
framed, the court may very well frame
particular charge. Further, at the same time,
it is also trite law that during the course of
trial the learned trial court shall scrutinize all
the charges so framed deeply and unless and
until the charge/ charges are proved beyond
all reasonable doubts the accused persons
may not be punished under such charge/
charges. It is also needless to observe that
during the course of trial all the parties shall
be afforded an ample opportunity of hearing
to adduce their evidence and to produce the
material. Further, in the light of the dictum
of Apex Court in re: P. Kartika Lakshmi
(supra) the learned trial court has rightly
rejected the application of the petitioners
vide order dated 23.05.2023.

15. In view of the aforesaid
observations,
the
instant
petition
is
dismissed.
----------
(2024) 1 ILRA 146
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.01.2024

BEFORE
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 443 of 2024

Shailendra Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Madan Gopal Tripathi, Atma Ram Verma,
Shivam Kumar Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 482 - Indian Penal
Code, 1860 - Sections 323, 498-A, 504 &
506 - - Dowry Prohibition Act, 1961 -
Sections 3 & 4- Application u/s 482 - for
quashing the impugned order of cognizance and
order of framing charges as well as the Chargesheet - FIR - Investigation - charge-sheet -
cognizance - framing charges - after 9 years
present application - court finds that, prima
facie case is made out against the applicant and
charges
have
been
framed
against
the
applicants in year 2018 itself - therefore, after
the delay more than 9 years, this court does not
find sufficient ground to interfere in the present
case - held that, for quashing the criminal
proceeding
is
applicant
u/s
482
is
not
maintainable after considerably long period in
absence of any explanation for delay, specifically
when the charges were framed in their presence
long back except in exceptional cases -
accordingly, present application is dismissed.
(Para - 10, 11)

Application Dismissed. (E-11)

List of Cases cited:

1. Rajiv Thaper & ors. Vs Madan Lal Kapoor -
2013 AIR SCW 784,

2. Hasmukhlal D. Vora & anr. Vs St. of T.N.-
2022 SCC online SC 1732,

3. Prabatbhai Aahir @ Parbatbhai & ors. Vs The
St. of Gurj. & ors. - 2017 Vol. 9 SCC 641