# Kanwarpal @ Lala & Ors v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 819
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-13
- **Case number:** Application U/S 482. No. 38783 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanwarpal-lala-ors-v-state-of-u-p-anr-50022
- **Pages:** 7

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power ,Section 200 - Examination of
complainant , Section 202 - Postponement
of issue of process , Section 203 -
Dismissal of complaint, Section 156(3) -
direction for further investigation , Section
173 (2) - police report , Section 190(1)(b)
- cognizance of offence by Magistrate
upon police report, Indian Penal Code,
1860 - Sections 302, 363, 201, 120B -
once a protest petition has been filed and
after recording the statement u/s 200 and
202 Cr.P.C., the concerned Magistrate
finds prima facie case is made out, he is
not bound by the opinion of Investigating
Officer which is found after recording the
820 INDIAN LAW REPORTS ALLAHABAD SERIES
statements
of
witnesses
u/s
161
Cr.P.C.(Para - 15)
(B) Criminal Law - Code of Criminal
Procedure, 1973 - power vested in the
High Court u/s 482 Cr.P.C. for quashing
the initiation of prosecution against the
accused - at the stage of issuing process,
or at the stage of committal, or at the
stage of framing of charges, all stages
before the commencement of the actual
trial,
would
have
far
reaching
consequences, inasmuch as, it would
negate the prosecution's/complainant's
case
without
allowing
the
prosecution/complainant to lead evidence
- Such a determination must always be
rendered
with
caution,
care
and
circumspection.Para -15)

Present protest petition filed by informant -
fulfill the requirements of the complaint - same
was
treated
as
complaint
statements
of
complainant as well as witnesses recorded u/s
200 and 202 Cr.P.C. respectively - applicants
have been summoned - application filed by
applicant - to quash - entire criminal proceeding
as well as impugned summoning order.(Para -
12)

HELD:-No
illegality,
impropriety
and
incorrectness in the impugned order or the
proceedings under challenge.(Para - 16)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

## Text

4 All. Kanwarpal @ Lala & Ors. Vs. State of U.P. & Anr.
819
way of challenge made to the order of
DNA testing and considered the matter in
entirety, therefore, no grievance in regard
to rejection of criminal revisional by the
lower revisional court on technical ground
exist.

(37) Insofar as the guidelines in the
case of Goutam Kundu (supra) is
concerned, in that case question of
paternity was primarily fact in issue to be
adjudicated upon between the wife and the
husband where birth of the child was
disowned by the husband, whereas, in this
case, the point of determination of paternity
of the child has got no relevance nor
claimed. Therefore, the petition though
taken to be one under Article 227 of the
Constitution of India also lacks merit and
deserves dismissal.

(38) For the reasons aforesaid, this
Court is of the considered view that at this
stage, when the investigation is going on
attention of the Investigating Officer would
be on the allegations made in the first
inforamtion report which aspect, per se, is
based upon alleged commission of the
offence of rape upon the opposite party
no.4 by the applicant and consequent
development of pregnancy and birth of a
child. The Investigating Officer is free to
collect material relevant by following due
procedure of law. At the investigation
stage, no interference is warranted by this
Court and the investigation may go on
uninterruptedly.

(39) Consequently, this petition is
dismissed.

(40) It is made clear that nothing
has been expressed on the merit of the
case and authenticity of the material
sought
to
be
collected
by
the
Investigating Officer during course of the
investigation and the investigating agency
shall not be prejudiced by the observation
made hereinabove and the same is
confined solely to the disposal of this
petition and would in no case travel
beyond it.

(41) Cost easy.
----------
(2023) 4 ILRA 819
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2023

BEFORE

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

Application U/S 482. No. 38783 of 2022

Kanwarpal @ Lala & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Mayank Yadav, Sri Vivek Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Anil Kumar Dubey, Sri Chandra
Bhan Dubey

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power ,Section 200 - Examination of
complainant , Section 202 - Postponement
of issue of process , Section 203 -
Dismissal of complaint, Section 156(3) -
direction for further investigation , Section
173 (2) - police report , Section 190(1)(b)
- cognizance of offence by Magistrate
upon police report, Indian Penal Code,
1860 - Sections 302, 363, 201, 120B -
once a protest petition has been filed and
after recording the statement u/s 200 and
202 Cr.P.C., the concerned Magistrate
finds prima facie case is made out, he is
not bound by the opinion of Investigating
Officer which is found after recording the
820 INDIAN LAW REPORTS ALLAHABAD SERIES
statements
of
witnesses
u/s
161
Cr.P.C.(Para - 15)
(B) Criminal Law - Code of Criminal
Procedure, 1973 - power vested in the
High Court u/s 482 Cr.P.C. for quashing
the initiation of prosecution against the
accused - at the stage of issuing process,
or at the stage of committal, or at the
stage of framing of charges, all stages
before the commencement of the actual
trial,
would
have
far
reaching
consequences, inasmuch as, it would
negate the prosecution's/complainant's
case
without
allowing
the
prosecution/complainant to lead evidence
- Such a determination must always be
rendered
with
caution,
care
and
circumspection.Para -15)

Present protest petition filed by informant -
fulfill the requirements of the complaint - same
was
treated
as
complaint
statements
of
complainant as well as witnesses recorded u/s
200 and 202 Cr.P.C. respectively - applicants
have been summoned - application filed by
applicant - to quash - entire criminal proceeding
as well as impugned summoning order.(Para -
12)

HELD:-No
illegality,
impropriety
and
incorrectness in the impugned order or the
proceedings under challenge.(Para - 16)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

1. Dudh Nath Mishra Vs St. of U.P., 2003 A.L.J.
55

2. Chhotey Lal s/o Parmanand Vs St. of U.P. &
Smt. Rati Basor w/o Hasmukh Basoi, 2006
Cr.L.J. 2265

3. Abdul Hamidkhan Pathan & ors. Vs St. of
Guj. & ors., 1989 Cr.L.J. 468 (Guj. DB)

4. Kishor Singh & Etc. Vs Sudama Prasad & ors.,
2002 Cr.L.J. 802 (MP)

5. Rosy & anr. Vs St. of Kerala & ors. 2000(1)
SCR 107
6. Rajiv Thapar & ors. Vs Madan Lal Kapoor
(Criminal Appeal No.. of 2013, SLP(Crl) no. 4883
of 2008

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

1. Heard Mr. Vivek Kumar Singh,
learned counsel for the applicants, Mr.
Chandra Bhan Dubey, learned counsel for
the opposite party, and Mr. Amit Singh
Chauhan, learned A.G.A. for the State and
perused the record.

2. This application under Section 482
Cr.P.C. has been filed by the applicant to
quash the entire criminal proceeding of
Complaint Case No. 13682 of 2021 (Smt.
Sarla Vs. Kanwarpal @ Lala and others),
under section 302 IPC, Police Station
Chapprauli, District Baghpat as well as
impugned
summoning
order
dated
26.08.2022
passed
by
learned
Chief
Judicial Magistrate, Baghpat.

3. Brief facts of the case is that an FIR
was lodged by Trishpal, son of Bishambhar
on 11.03.2019 at 13:18 hours which was
registered as Crime No. 60 of 2019, under
section
302
IPC
at
Police
Station
Chhaprauli,
District
Baghpat
against
unknown persons with the allegation
regarding missing of his nephew Samrat
whose dead body was found on 11.03.2019
at 10:30 am on road side near a pulia.

4. On 11.03.2019, the postmortem of
the aforesaid dead body was conducted
wherein some injuries were noted and
cause of death was due to throttling and
shock.

5. The matter was investigated by
Investigating Officer and statement of the
informant namely Trishpal was recorded
4 All. Kanwarpal @ Lala & Ors. Vs. State of U.P. & Anr.
821
11.03.2019. In the aforesaid statement, the
informant did not name anyone for
involvement in murder of his nephew. On
14.03.2019, the Investigating Officer tried
to record the evidence but nothing relevant
was found by him. On 15.03.2019, the
Investigating Officer while conducting the
investigation reached the house of the
deceased wherein Terahvin was being
performed,
during
the
conversation
amongst the people present there, he came
to know that sometime back there had been
a quarrel between Pappu, Deshpal son
Padam Singh and the deceased. During
course of investigation, the Investigating
Officer on 17.03.2019 came to know that
the
uncle
of
the
deceased
namely
Kanwarpal @ Lal was also been suspected
for involvement in murder of the deceased.
On 20.03.2019, the statements of Ashok
son of Padam Singh, Deshpal @ Kala,
Pappu son of Padam and Bindar were
recorded, from where it was found that the
aforesaid persons had nothing to do with
the alleged incident. On 25.03.2019 while
investigating the matter, the Investigating
Officer found that some dispute had taken
place between the deceased and his uncle
Kanwarpal but later on compromise was
entered between the two. Likewise on
26.03.2019, 18.04.2019 and 22.04.2019 all
efforts were made by Investigating Officer
to find out the truth behind the alleged
murder
of
deceased
Samrat
son
of
Shamsher. On 03.05.2019, statement of
Shamsher (father of deceased), Smt. Sarla
(mother of the deceased), Bharti and
Shakshi (daughters of Shamsher) were
recorded. The aforesaid persons in their
statements
clarified
the
position
of
Kanwarpal, uncle of the deceased for his
non involvement in the alleged murder. On
07.05.2019, the statement of Shubham and
Vicky were also recorded and the position
of uncle namely Kanwarpal remained the
same. On 10.05.2019, 21.05.2019 and
06.06.2019 statements of other persons
were also recorded and the Investigating
Officer could not gather any information
about the murder of the deceased on the
alleged
dates.
On
02.08.2019,
the
Investigating
Officer
recorded
the
statement of Kuldeep, Deepak, Harendra
Singh and Ashok who stated that Manisha,
aunt of the deceased is resident of village
Soop from where relevant information may
be gathered regarding the alleged incident.
Statement of Deshpal Singh, Tejpal and
Omveer Singh were also recorded on
16.08.2019 but the Investigating Officer
could not gather any information about the
culprit.

6. On 15.10.2019, the investigation
was handed over to SHO, Chapprauli Sri
Dinesh Kumar and he was the fourth
Investigating Officer, who started the
investigation on 28.10.2019 but could not
find anything relevant about the murder of
the
deceased
Samrat.
Finally
on
28.05.2020,
the
Investigating
Officer
concluded the investigation and submitted a
final report as nothing could be found
against anyone connecting him with the
murder of deceased. It appears that an order
for further investigation was passed by
Circle
Officer
on
21.06.2020
and
investigation
again
commenced
on
25.06.2020. Thereafter, on 16.08.2020, the
investigation was handed over to new SHO,
Chapprauli, who perused the entire case
diary, however nothing was done by him in
respect of investigation. Thereafter on
18.09.2020, investigation was handed over
to newly appointed SHO Chapprauli, who
perused the entire case diary on 19.09.2020
and proceeded to record the statement of
Sarla
(mother
of
the
deceased)
on
04.11.2020 but no name was disclosed by
her. Newly appointed SHO recorded the
822 INDIAN LAW REPORTS ALLAHABAD SERIES
statements of Shamsher Singh and Trishpal
who also did not disclose any name. Thus
on 12.11.2020, after visiting the nearby
place and recording the statements of other
persons, the investigation was concluded
and final report was submitted.

7.

During
pendency
of
the
investigation of the aforesaid case, opposite
party no. 2 filed a complaint case on
21.01.2020 being complaint case no. 249 of
2020 against the applicants under sections
302, 363, 201, 120B IPC with regard to
murder of deceased Samrat. The aforesaid
complaint was dismissed u/s 203 Cr.P.C.
vide order dated 03.12.2021 as the
complainant did not produce any evidence
u/s 200 and 202 Cr.P.C.

8. After submission of final report
before
the
court
concerned
by
the
Investigating Officer notices were issued to
opposite no. 2 to file protest petition
against the applicants which was treated as
complaint case by the learned Magistrate
vide order dated 27.10.2021 and opposite
party no. 2 was directed to produce her
witnesses. The learned Magistrate recorded
the statement of witnesses u/s 200 and 202
Cr.P.C.
and
finally
summoned
the
applicants to face trial, hence the present
petition has been filed.

9. Learned counsel for the applicants
submits that at no point of time during the
ongoing investigation for a period of one
and a half year, the name of the applicants
were placed before the Investigating
Officer and during this period statement of
opposite party no. 2 was recorded on
several occasions. He further submits that
the witness Anil Kumar is uncle of the
deceased who claims to be eye witness of
the incident has not disclosed as to why this
fact was not disclosed by him to the
Investigating Officer and other official. The
other witnesses have stated about the
information of the incident to the parents of
the deceased but none of them made it clear
as to why no application with regard to the
alleged incident was given to any senior
police officer in respect of alleged biased
investigation. The court below without
going through the records of the case diary
of
the
present
case
summoned
the
applicants to face trial ignoring the fact that
the incident had taken place on 10.03.2019
and after proper report was submitted on
several occasions, the witnesses claiming
themselves to be eye witness, after about
three years of the incident, have come out
with a story and named the applicants and
the applicants have been summoned.

10. Learned counsel for the applicant
submits that on 03.12.2021, the opposite
party no. 2 namely Sarla mother of the
deceased was examined u/s 200 Cr.P.C.
and her witnesses Anil Kumar, Ashok
Kumar and Shamsher were examined u/s
202 Cr.P.C. from where for the first time a
new story was introduced stating that the
opposite party no. 2 and the witnesses saw
the applicants taking dead body of the
deceased who was murdered on account of
previous dispute between them. The
counsel for the applicant further submits
that the protest petition filed by the
opposite party no. 2 has been treated as
complaint case and without complying the
provisions of section 202(2) Cr.P.C. all the
witnesses of the complaint have not been
examined, therefore, the summoning order
suffers from illegality and the continuance
of proceedings amounts to abuse of process
of law hence is liable to be quashed.

11. Learned AGA as well as learned
counsel for the opposite party on the other
hand submits that there is no illegality or
4 All. Kanwarpal @ Lala & Ors. Vs. State of U.P. & Anr.
823
infirmity in the aforesaid order as after
filing a protest petition the same has been
treated as complaint and after recording the
statement u/s 200 and 202 Cr.P.C., the
applicants have been summoned, therefore,
the relief as prayed cannot be granted.
Learned AGA further submits that once a
final report has been submitted by the
police, the Magistrate can take cognizance
on that as congnizance taken is of an
offence and not an offender. It is settled
position of law that when a report
forwarded by the police to the Magistrate is
placed before him several situations arise.
The report may conclude that an offence
appears to have been committed by a
particular person or persons and in such a
case, the Magistrate may either accept the
report and take cognizance of the offence
and issue process, or may disagree with the
report and drop the proceeding, or may
direct further investigation under section
156(3) and require the police to make a
further report. The report may on the other
hand state that according to the police, no
offence appears to have been committed.
When such a report is placed before the
Magistrate he has again an option of
adopting one of the three courses open i.e.
he may accept the report and drop the
proceeding; or he may disagree with the
report and take the view that there is
sufficient ground for further proceeding,
take cognizance of the offence and issue
process;
or
he
may
direct
further
investigation to be made by the police
under section 156(3). The position is,
therefore, now well settled that upon
receipt of a police report under section
173(2) a Magistrate is entitled to take
cognizance of an offence under section
190(1)(b) of the Code even if the police
report is to the effect that no case is made
out against the accused. The Magistrate can
take into account the statements of the
witnesses examined by the police during
the investigation and take cognizance of the
offence complained of and order the issue
of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can
take cognizance of an offence only if the
investigating officer gives an opinion that
the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusion arrived at by the
investigating officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of the
case, if he thinks fit, exercise his powers
under Section 190(1)(b) and direct the issue
of process to the accused. The Magistrate is
not bound in such a situation to follow the
procedure laid down in Section 200 and
202 the Code for taking cognizance of a
case under Section 190(1)(a) though it is
open to him to act under Section 200 or
Section 202 also. The informant is not
prejudicially affected when the Magistrate
decides to take cognizance and to proceed
with the case. But where the Magistrate
decides that sufficient ground does not
subsist for proceeding further and drops the
proceeding or takes the view that there is
material for proceeding against some and
there are insufficient grounds in respect of
others, the informant would certainly be
prejudiced as the first information report
lodged
becomes
wholly
or
partially
ineffective.
Therefore,
where
the
Magistrate decides not to take cognizance
and to drop the proceeding or takes a view
that there is no sufficient ground for
proceeding against some of the persons
mentioned in the first information report,
notice to the informant and grant of an
opportunity of being heard in the matter
becomes mandatory.

12. The other situation is where the
protest has been filed which and the
824 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate treats the same as complaint, he
would have to follow the procedure of
section 200 and 202 of the Code. Thus, the
complainant and his witnesses have to be
examined. The present protest petition filed
by the informant fulfill the requirements of
the complaint, therefore, the same was
treated as complaint and after recording the
statements of complainant as well as the
witnesses u/s 200 and 202 Cr.P.C.
respectively, the applicants have been
summoned.

13. Learned counsel for the applicants
submits that as requirement u/s 202(2) all
the witnesses of the complainant associated
or connected with his interest and those
witnesses who are material and relevant to
prove prosecution case were not examined
especially in a case exclusively triable by
the court of session, that as per the
provisions contained in Section 202(2), it is
provided that if it appears to the Magistrate
that the offence complained of, is triable
exclusively by the Court of Sessions, he
shall call upon the complainant to produce
all his witnesses and examine them on oath.

14. The counsel for the opposite party
submits that it is not mandatory for the
complainant to examine all the witnesses
named in the complaint and he has a choice
in the matter, and therefore, there is no
illegality or infirmity in the aforesaid order
and the continuance of proceedings. In
support of his argument he has placed
reliance in the Case of Dudh Nath Mishra
vs. State of U.P., 2003 Allahabad Law
Journal 55 so also in case of Chhotey Lal
s/o Parmanand vs. State of U.P. & Smt.
Rati Basor w/o Hasmukh Basoi, 2006
Cr.L.J. 2265, in cae of Abdul Hamidkhan
Pathan & Others vs. State of Gujarat &
Others, 1989 Cr.L.J. 468 (Guj. DB), and in
case of Kishor Singh & Etc. vs. Sudama
Prasad & Others, 2002 Cr.L.J. 802 (MP).
He further submits that if Magistrate does
not comply the provisions of Section
202(2) Cr.P.C. to examine all the witnesses
on oath, it would not by itself vitiate the
proceedings, the aforesaid has been held in
the judgment of Hon'ble Apex Court in
case of Rosy and another Vs. State of
Kerala and others 2000(1) SCR 107.

15. Lastly learned AGA submits that
once a protest petition has been filed and
after recording the statement u/s 200 and
202 Cr.P.C., the concerned Magistrate finds
prima facie case is made out, he is not
bound by the opinion of Investigating
Officer which is found after recording the
statements of witnesses u/s 161 Cr.P.C.
Learned AGA further submits that the
power vested in the High Court u/s 482
Cr.P.C. for quashing the initiation of
prosecution against the accused, at the
stage of issuing process, or at the stage of
committal, or at the stage of framing of
charges,
all
stages
before
the
commencement of the actual trial, would
have far reaching consequences, inasmuch
as,
it
would
negate
the
prosecution's/complainant's case without
allowing the prosecution/complainant to
lead evidence. Such a determination must
always be rendered with caution, care and
circumspection. Placing reliance upon the
judgement of Hon'ble Apex Court, passed
in Rajiv Thapar & Ors Vs. Madan Lal
Kapoor (Criminal Appeal No......... of
2013, arising out of SLP(Crl) no. 4883 of
2008, decided on 23.01.2013) learned
AGA submits that the aforesaid powers for
quashing
the
proceedings
should
be
invoked with care and caution as has been
held as under:-

"22. The issue being examined in
the instant case is the jurisdiction of the
4 All. Pooja Sharma @ Pinkey Giri Vs. State of U.P.
825
High Court under Section 482 of the
Cr.P.C., if it chooses to quash the initiation
of the prosecution against an accused, at
the stage of issuing process, or at the stage
of committal, or even at the stage of
framing of charges. These are all stages
before the commencement of the actual
trial. The same parameters would naturally
be available for later stages as well. The
power vested in the High Court under
Section 482 of the Cr.P.C., at the stages
referred to hereinabove, would have far
reaching consequences, inasmuch as, it
would
negate
the
prosecution's/complainant's case without
allowing the prosecution/complainant to
lead evidence. Such a determination must
always be rendered with caution, care and
circumspection. To invoke its inherent
jurisdiction under Section -

482 of the Cr.P.C. the High Court
has to be fully satisfied, that the material
produced by the accused is such, that
would lead to the conclusion, that his/their
defence is based on sound, reasonable, and
indubitable facts; the material produced is
such, as would rule out and displace the
assertions contained in the charges levelled
against the accused; and the material
produced is such, as would clearly reject
and overrule the veracity of the allegations
contained in the accusations levelled by the
prosecution/complainant.
It
should
be
sufficient to rule out, reject and discard the
accusations
levelled
by
the
prosecution/complainant,
without
the
necessity of recording any evidence. For
this the material relied upon by the defence
should
not
have
been
refuted,
or
alternatively, cannot be justifiably refuted,
being material of sterling and impeccable
quality. The material relied upon by the
accused should be such, as would persuade
a reasonable person to dismiss and
condemn
the
actual
basis
of
the
accusations as false. In such a situation,
the judicial conscience of the High Court
would persuade it to exercise its power
under Section 482 of the Cr.P.C. to quash
such criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice."

16. In view of the aforesaid facts, the
prayer for quashing or setting aside the
entire proceeding as well as impugned
order dated 26.08.2022 passed by learned
Chief Judicial Magistrate, Baghpat, is
refused as I do not see any illegality,
impropriety and incorrectness in the
impugned order or the proceedings un der
challenge, hence, the application u/s 482
Cr.P.C. is dismissed.
----------
(2023) 4 ILRA 825
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No. 41406 of 2022

Pooja Sharma @ Pinkey Giri ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Rajnish Dubey

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections
376D
&
506
-
Power
of
Magistrate to direct further investigation
is a significant power which has to be