# Kishan Pal & Anr v. State Of U.P. & Anr - **Citation:** (2016) 6 ILRA 289 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-06-28 - **Bench:** Mrs. Vijay Lakshmi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-pal-anr-v-state-of-u-p-anr-43948 - **Pages:** 5 ## Text 6 All. Kishan Pal & Anr. Vs State Of U.P. & Anr. 289 36. Having due regard to the contents of the plethora of petitions drafted and filed by Sri Pande and the averments made therein, we are, prima facie, of the opinion that Shri Pande is incorrigible. Despite strictures and orders passed against him by the Court on several occasions, Sri Pande has shown no remorse or regret, it would, therefore, be in the interest of justice that the matter be referred to the Bar Council of Uttar Pradesh to initiate disciplinary proceedings against Sri Pande to adjudge his suitability to continue practice as an Advocate. 37. Registrar is, therefore, directed to send a copy of this order to the Chairman, Bar Council, U.P., Allahabad alongwith the order dated 19 April 2016 passed in Hindu Personal Law Board Versus Union of India and others (Writ Petition No. 8216 (M/B) of 2016) for compliance. It is expected that the Council would conclude the enquiry within three months from the date of service of this order provided Sri Pande cooperates with the enquiry. It will be open for the Council to consider as to whether the certificate to practice granted to Sri Pande needs to be suspended during enquiry. 38. We clarify that the observations which are contained in this order on the facts which have led to refer the matter to the Bar Council is only a prima facie expression of opinion of the Court with regard to the conduct of Sri Pande, the Council shall pass order on merit without being influenced by the observations made in the order. ---------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 28.06.2016 BEFORE THE HON'BLE MRS. VIJAY LAKSHMI, J. Application U/S 482 No.- 19255 Of 2016 Kishan Pal & Anr. ...Applicants Versus State Of U.P. & Anr. ...Opposite Parties Counsel for Applicants: Pratibha Singh, Ashok Kumar Singh Counsel for Opposite Parties: G.A. Criminal Law - Section 482 Cr.P.C. - Quashing of Revisional Order - Final Report - Protest Petition - Powers of Magistrate - Locus Standi of Accused - Pre-Cognizance Stage - Prima Facie Case - Scope of Inherent Jurisdiction The applicants invoked the inherent jurisdiction of the High Court under Section 482 Cr.P.C. seeking quashing of the order dated 17.05.2016 passed by the Additional Sessions Judge/F.T.C., 290 INDIAN LAW REPORTS ALLAHABAD SERIES Etah, whereby the revisional court set aside the order of the Chief Judicial Magistrate accepting the final report and rejecting the protest petition, and directed reconsideration of the protest petition. Held that it is a settled legal position, as laid down by the Division Bench in Pakhandu and others v. State of U.P., that upon receipt of a final report, the Magistrate has four options, including acceptance of the final report or treating the protest petition as a complaint and proceeding in accordance with law. Further held that at the stage of consideration of a final report and protest petition, the Magistrate is required to examine whether a prima facie case exists and cannot adjudicate upon the defence of the accused. The accused has no locus standi to file objections or be heard at the pre-cognizance stage. In the present case, the Magistrate, while accepting the final report, failed to consider material evidence on record, including the firearm injury sustained by the prosecutrix and her statements recorded under Sections 161 and 164 Cr.P.C., and illegally relied upon objections filed by the accused, contrary to settled law. The revisional court, after considering the injury report and statements of the prosecutrix, rightly set aside the order of the Magistrate and directed fresh consideration of the protest petition. Held that no illegality, perversity or abuse of process of court was found in the impugned revisional order warranting interference under Section 482 Cr.P.C. Accordingly, the application was dismissed. (Delivered by Hon'ble Mrs. Vijay Lakshmi, J.) 1. Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the records. 2. The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the order dated 17.5.2016 passed by A.S.J. (F.T.C.), Etah in Criminal Revision No. 98 of 2015 ( Sri Yaspal Vs. State of U.P. And others). 3. Some background facts, in brief, are that opposite party no. 2 lodged an F.I.R. against the applicants and four unknown persons to the effect that on 25.7.2013 at about 8.00 P.M. when the wife of opposite party no. 2 had gone near the canal to attend the natural call, a Bollero car came and stopped near her from which the applicants alongwith four unknown persons alighted and on the gun point they took away her towards the side of the canal. There the applicant Kishan Pal and one unknown person committed rape with her. Thereafter they dragged her to the car and tried to take her away with them. When the victim resisted the accused Narendra shot fired on her abdomen by the country made pistol he was carrying. Hearing the alarm and the sound of firing, the 6 All. Kishan Pal & Anr. Vs State Of U.P. & Anr. 291 brother of the complainant Yashveer and one villager Man Singh reached there and saw in the light of torch all accused persons running away firing in the air. The victim (wife of opposite party no. 2) was taken to the District Hospital, Etah from where she was referred to Agra for better treatment. After she recovered a bit, her husband (O.P. No. 2) went to lodge the F.I.R. on 29.7.2013 but his report was not lodged. He sent a letter to the Superintendent of Police, Etah by registered post on 6.8.2013 but when no action was taken he moved an application under Section 156(3) Cr.P.C. before the court on 8.8.2016. 4. Under the orders of the court, case was registered and the statements of the victim under Sections 161 and 164 Cr.P.C. were recorded. However, after completion of the investigation, the police submitted final report in the matter. 5. Being aggrieved, the opposite party no. 2 moved a protest petition which was dismissed by the C.J.M., Etah vide order dated 18.5.2015 and the Final Report was accepted. The opposite party no. 2 challenged the aforesaid order of C.J.M., Etah by means of criminal revision which was decided by the learned Additional Sessions Judge/F.T.C., Etah on 17.5.2016 whereby the learned Additional Sessions Judge allowed the revision and set aside the order of C.J.M., Etah directing him to pass fresh orders on the protest petition in the light of observations made by the revisional court. 6. The accused applicants had challenged the legality and correctness of the order of learned Sessions Judge by means of this application under Section 482 Cr.P.C. mainly on the following grounds:- 1. The allegations against the applicants are false and the prosecutrix has implicated them due to enmity of the litigations regarding land dispute pending between them. 2. The complainant/opposite party no. 2 himself is a criminal against which proceedings under Section U.P. Goonda Act has been initiated. 3. The two eye witnesses named in the F.I.R. have not supported the prosecution case during their interrogation by the I.O. under Section 161 Cr.P.C. 4. The police had submitted final report after investigation as the case was found baseless. 5. The learned C.J.M., Etah has rightly accepted the final report and has rightly rejected the protest petition after considering the entire case diary. However, the learned sessions judge has set aside the order passed by the learned C.J.M. only on a technical ground that the learned C.J.M. has wrongly relied upon the objection filed by the accused persons against the protest petition while accepting the Final Report without keeping in view the legal position that the accused persons have no locus standi to raise objection at the stage of disposal of protest petition. 292 INDIAN LAW REPORTS ALLAHABAD SERIES 7. Per contra learned A.G.A. has opposed the application by contending that the learned Sessions Judge has passed a thoroughly, just, proper and legal order in the facts and circumstances of the case. Moreover, by the impugned order the Magistrate has only been directed to pass fresh orders on the protest petition filed by opposite party no. 2. Learned A.G.A. has submitted that it is settled law that accused has no locus standi to raise objections at pre cognizance stage. 8. Considered the submissions made by both the parties in the light of the background facts as discussed above. 9. In a landmark case of Pakhandu and others Vs. State of U.P. And another; 2001 (43) ACC 1096, a Division Bench of this Court has laid down as under:- "Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:- I. He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall given an opportunity of hearing to the complainant; or II. He may take cognizance under Section 190(1)(b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or III. He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or IV. He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under thereafter decide whether complaint should be dismissed or process should be issued." 10. In the present case the Magistrate has accepted the final report submitted by the police. There is no doubt that the Magistrate was empowered to do so but at the same time it is clearly evident that while accepting the Final Report and dismissing the protest petition the learned Magistrate has not considered even the prima facie evidence available on record. Learned Magistrate has not discussed about the firearm injury sustained by the prosecutrix on her abdomen, who was pregnant at that time and has dismissed the protest petition without assigning any cogent reason only on the ground that no spermatozoa were found and the child in the womb was found alive. The order passed by the C.J.M., Etah also shows that he has discussed in detail the objections filed by the applicant Kishan Pal against the protest petition which is against the settled legal position that at the time of disposal of protest petition only prima facie case is to be seen and the accused has no locus to raise objection at this stage. 6 All. Suman Sonu Omprakash & Anr. Vs State Of U.P. & Ors. 293 11. The learned revisional court, after considering the injury report of the prosecutrix according to which firearm wound was found on her left lumber region and also considering her statements recorded under Sections 161 and 164 Cr.P.C. in which she has fully supported the prosecution case, set aside the order passed by learned C.J.M., Etah by the impugned order. 12. Considering the facts and circumstances of the case, there appears no ground to quash the impugned order passed by learned Sessions Judge. 13. This application is without any force and is liable to be dismissed. 14. The application is accordingly dismissed. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.06.2016 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. Writ C No.- 29577 Of 2016 Suman Sonu Omprakash & Anr. ...Petitioners Versus State Of U.P. & Ors ...Respondents Counsel for Petitioners: Rajeev Kumar Srivastava Counsel for Respondents: C.S.C. Writ Petition - False Allegations - Fraud on Court - Impleading Dead Person - Manipulated Documents - Dismissal with Costs A writ petition seeking protection of life and liberty was filed alleging harassment and threats by respondent no.4, shown as father of petitioner no.1. During the course of hearing, statements of both petitioners were recorded in open court on oath, wherein they categorically stated that respondent no.4 had died in the year 1994 and that the alleged representation forming the basis of the writ petition had not been written by them. The Court found that false allegations were deliberately made against a dead person and a fabricated document was filed along with the writ petition. Such conduct amounted to playing fraud upon the Court and abuse of the process of law. Held that fraud vitiates all judicial proceedings and no litigant can be permitted to obtain relief by suppressing material facts or by making false statements. A person approaching the Court must come with clean hands. Any order obtained by practising fraud is non est in the eyes of law.