# Krashnkant &Ors v. State of U.P. &Anr

- **Citation:** (2019) 1 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-03
- **Case number:** CIVIL MISC. WRIT PETITION No.22648 of 2019
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krashnkant-ors-v-state-of-u-p-anr-44492
- **Pages:** 5

## Headnote

A. Criminal Procedure Code, 1973 -
Section 482 Cr.P.C - If without going
into the evidence and fact, a conclusion
is possible that there is misuse of the
process of the Court, only then the
jurisdiction under section 482 Cr.P.C. has
to
be
invoked.
1 All. Krashnkant & Ors. Vs. State of U.P. & Anr.
47
State of Haryana vs Bhajanlal, 1992 SCC
(Crl.) followed (Para 10)

B.
Criminal
Procedure
Code,
1973-
Efficacious Remedy against Summoning
Order is of Criminal Revision. (Para 8)

C. Criminal Procedure Code, 1973 - Final
Report - when final report is given by
the police it is incumbent on the part of
the court to issue notice to the informant
before passing any order on the final
report. (Para 9)

D. Criminal Procedure Code, 1973 - It is
complainant's prerogative to examine a
witness of his choice - whom he feels
that they will going to support the
complaint. (Para 9) (E-5)

List of cases cited:-
State of Haryana vs Bhajanlal, 1992 SCC (Cri.)

## Text

46 INDIAN LAW REPORTS ALLAHABAD SERIES
Deol Bajaj v. K.P.S. Gill; reported in
(1995) SCC (Cri) 1059, Rajesh Bajaj v.
State of NCT of Delhi; reported in
(1999)
3
SCC
259
and
Medchl
Chemicals & Pharma (P) Ltd. v.
Biological E Ltd. & Ors; reported in
2000 SCC (Cri) 615, the Apex Court
clearly held that if a prima facie case is
made out disclosing the ingredients of the
offence, Court should not quash the
complaint. However, it was held that if
the allegations do not constitute any
offence as alleged and appear to be
patently absurd and improbable, Court
should
not
hesitate
to
quash
the
complaint. The note of caution was
reiterated that while considering such
petitions the Courts should be very
circumspect, conscious and careful. Thus,
there is no controversy about the legal
proposition that in case a prima facie case
is made out, the FIR or the proceedings in
consequence thereof cannot be quashed.
Here it would also be pertinent to mention
that questions of fact cannot be examined
by this Court in proceedings under Article
226 of the Constitution of India.

11. The submissions raised by
learned counsel for the petitioners call for
determination on questions of fact which
may be adequately discerned either
through proper investigation or which
may be adjudicated upon only by the trial
court and even the submissions made on
points of law
can also
be
more
appropriately gone into only by the trial
court in case a charge sheet is submitted
in this case. The perusal of the record
makes out, prima facie, offences at this
stage and there appears to be sufficient
ground for investigation in the case. Here
it would be pertinent to mention that
probabilities of the prosecution version
cannot be analysed at this stage. Likewise,
the allegations of mala fides of the
informant are of secondary importance.
(vide State of Orissa v. Saroj Kumar
Sahoo (2005) 13 SCC 540).

12. In view of the aforesaid,
considering the allegations made in the
FIR and material brought on record, it
cannot be said that no prima facie is made
out against the petitioner rather there
appears to be sufficient ground for
investigation in the matter. Accordingly,
we do not find any justification to quash
the impugned F.I.R.

13. The petition lacks substance and
thus,
writ
petition
is,
accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SRIVASTAVA, J.

CIVIL MISC. WRIT PETITION No.22648 of 2019
(u/s -482 Cr. P.C.)

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

Counsel for the Applicants:
Sri I.K. Chaturvedi, Sri Ganga Bhushan
Mishra.

Counsel for the Opposite Parties:
A.G.A., Ruchita Jain, Sri Pratap Kanchan
Singh.

A. Criminal Procedure Code, 1973 -
Section 482 Cr.P.C - If without going
into the evidence and fact, a conclusion
is possible that there is misuse of the
process of the Court, only then the
jurisdiction under section 482 Cr.P.C. has
to
be
invoked.
1 All. Krashnkant & Ors. Vs. State of U.P. & Anr.
47
State of Haryana vs Bhajanlal, 1992 SCC
(Crl.) followed (Para 10)

B.
Criminal
Procedure
Code,
1973-
Efficacious Remedy against Summoning
Order is of Criminal Revision. (Para 8)

C. Criminal Procedure Code, 1973 - Final
Report - when final report is given by
the police it is incumbent on the part of
the court to issue notice to the informant
before passing any order on the final
report. (Para 9)

D. Criminal Procedure Code, 1973 - It is
complainant's prerogative to examine a
witness of his choice - whom he feels
that they will going to support the
complaint. (Para 9) (E-5)

List of cases cited:-
State of Haryana vs Bhajanlal, 1992 SCC (Cri.)

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri I.K. Chaturvedi, Senior
Advocate assisted by Shri Ganga Bhushan
Mishra,
learned
counsel
for
the
applicants, Shri Pratap Kanchan Singh,
learned counsel for the complainant and
learned A.G.A. for the State.

2. This application has been filed
under section 482 Cr.PC seeking quashing
of summoning order dated 29.03.2019
passed in Criminal Complaint No. 2320
of 2018 (Tika Ram Vs. Krashna Kant and
others), by learned CJM, Jhansi, under
section 147, 148, 302, 352 IPC, P.S.
Lahchura, District Jhansi as well as entire
proceedings of the aforesaid complaint
case including the order dated 21.07.2018,
passed by learned CJM, Jhansi, whereby
the learned Magistrate after rejecting the
final report submitted in the case crime
No. 0056 of 2018, under section, 147,
148, 302, 352 IPC, P.S. Lahchura, District
Jhansi, treated the Protest Petition of the
opposite party no. 2 as a complaint.

3. According to the FIR, the alleged
incident took place on 9/10.04.2018 at
about 1 a.m. in the night and opposite party
no. 2 lodged FIR which was registered as
crime no. 0056 of 2018, under sections 147,
148, 302, 352 IPC. In the FIR it was alleged
that opposite party no. 2 and his wife with
his son Lal Singh were present at their
agricultural field for crop harvesting in the
night, thereafter, Lal Singh proceeded to his
house and when he arrived near his house at
about 1 a.m., suddenly the named accused
persons who were armed with Lathi and
country made pistol, made an assault upon
him. Upon hearing his voice, younger son
Ram Kumar and his wife and wife of Lal
Singh came out side the door and saw that
the accused persons were armed with lathi
and
country
made
pistol
and
after
challenging the accused persons, they
escaped from the spot, after committing
scuffle with his son. Thereafter, his son
Ram Kumar picked up Lal Singh and
informed him. The police was called and
thereafter he came to police station with
injured son on Maruti van. The police took
his injured son to hospital at Mauranipur
from
where
he
was
referred
to
DistrictHospital, Jhansi. On the way his son
expired in the vicinity of the village Sakrak.
It was further alleged in the FIR that there
was old enmity going on with the accused
and that is why his son was murdered by
them. The matter was investigated by police
and after concluding investigation a final
report dated 17.04.2018 was submitted to
the court, in which it was also requested that
a proceedings should be initiated under
section 182 IPC against the informant.

4. Aggrieved by the final report
opposite party no. 2 filed protest petition
48 INDIAN LAW REPORTS ALLAHABAD SERIES
on 14.05.2018 on which the court passed
an order on 21.07.2018, rejecting the final
report and directing to register the protest
petition of informant as complaint and
complainant was directed to produce the
witnesses. Thereafter the statement under
section 200 Cr.PC of the informant and
the statement of the witnesses under
section 202 Cr.P.C. was recorded by the
court
and
passed
the
impugned
summoning order.

5. Aggrieved by the summoning
order, this application has been filed,
submitting that the impugned order was
passed ignoring the police papers on
record and only relying on the witnesses
examined in support of the complaint. It is
clear that the injuries found on the body
of the deceased was on one side of his
body. The impugned order has been
passed on the ocular account of C.W.-1
and C.W.-3, but they have not stated that
they have seen the accused persons
committing scuffle. The applicants has
been summoned without assigning the
reason and no specific role has been
assigned to any of the applicants and only
on the general allegations, the impugned
order was passed.

6. It has been further alleged that the
Investigating Officer had indicated that
the death of the deceased occurred as he
fell from the roof and the injury report of
the deceased also indicated same thing
The fact alleged and discovered during
investigation, creates serious doubt about
the occurrence. It is also pertinent to
mention that Smt. Kaushlya wife of
deceased Lal Singh claimed insurance
under Mukhya Mantri Kisan evam Sarvhit
Bima Yojana showing accidental death of
her husband Lal Singh on 20.12.2018.
What happened to that claim is not known
to the applicants even if efforts were
made to know about it.

7. It has been further alleged that
the deceased was drunken and he fell
down from the roof in a drunken
condition
and
serious
laceration,
abrasion
and
contusion
resulted,
because of that his death occurred. On
this basis the applicants have requested
for the quashing of the impugned order
and the entire case.

8. On being asked whether any
criminal revision has been filed against
the impugned summoning order or not,
learned counsel for the applicants has
submitted that no such criminal revision
was filed. It is pertinent to mention that
against summoning order, the remedy for
criminal revision is provided under
Criminal Procedure Code, where equally
efficacious remedy is available. It appears
strange
that
this
Court
has
been
approached for extra ordinary remedy
under section 482 Cr.P.C.

9. It appears from the record that
when the final report was filed, protest
application was given from the side of
informant. It is needless to mention that
when final report was given by the police
it is incumbent on the part of the court to
issue notice to the applicants before
passing any order on the final report.
When the informant filed the protest
application, the legal way of handling the
protest petition has no where been flouted
by the learned court and when the protest
petition was filed, the same was registered
as complaint directing the complainant to
adduce evidence in his favour. Following
the direction of the court, the complainant
examined
himself
and
five
other
witnesses including the Doctor who
1 All. Krashnkant & Ors. Vs. State of U.P. & Anr.
49
conducted the postmortem. It has been
submitted that the Investigating Officer
was not examined. It is needless to point
out that the Investigating Officer who has
submitted the final report on completion
of investigation was not needed to be
examined by the complainant, at least at
this stage. It is also to be noticed that it
was not the choice of the applicant which
witness should be examined by the
complainant, it is the prerogative of the
complainant to examine the witness of his
choice, whom he feels that they will going
to support the complaint, that is what the
complainant has done.

10. The Law with regard to exercise
of the power under section 482 Cr.PC. is
that, while exercising this power, the
Court is not expected to enter into the
intricated facts and evidence. If without
going into the evidence and fact, a
conclusion is possible that there is misuse
of the process of the Court, only then the
jurisdiction under section 482 Cr.P.C. has
to be invoked.

11. In State of Haryana vs
Bhajanlal, 1992 SCC (Cri.) 426, the
Supreme Court has summarized the extraordinary power of the High Court under
Article 226 or inherent power under
section 482 of the Criminal Procedure
Code, which can be exercised to prevent
abuse of the process of any court or to
secure justice in following cases:

1. Where the allegations in the
FIR/complaint, even if taken at their face
value do not prima facie constitute any
offence against accused.

2. Where the allegations in the
FIR/complaint or other materials do not
constitute a cognizable offence justifying
an investigation by the police except
under an order of the Magistrate u/s
155(2) of the Criminal Procedure Code.

3. Where the uncontroverted
allegations in the FIR/complaint and the
evidence
collected
do
not
disclose
commission of any offence.

4. Where the allegations in the
FIR/complaint
constitute
only
noncognizable
offence
to
which
no
investigation is permissible without order
of the Magistrate u/s 155(2) of the
Criminal Procedure Code.

5. Where the allegations are so
absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground to
proceed against the accused.

6. Where there is express legal
bar in the Code or in the Statute
concerned (under which the proceeding is
instituted)
to
the
institution
or
continuance of the proceedings.

7. Where there is a specific
provision in the Code or in the Statute
concerned, providing efficacious/alternative
remedy for the grievance.

8. Where a criminal proceeding
is manifestly attended with mala fide or
malicious
with
ulterior
motive
for
wreaking vengeance on the accused with
a view to spite him due to private and
personal vengeance.

9. That it should be exercised
very sparingly to prevent abuse of process
of court or otherwise to secure the ends of
justice and should not be resorted to like
remedy of appeal and revision.
50 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The high court would not
embark upon an enquiry whether the
allegations in the complaint are likely to
be established by evidence or not.

12. The order has been passed by the
learned trial court by making a judicial inquiry
as provided under the Criminal Procedure
Code and after finding that the prima facie
case is being made out, the impugned order
has been passed. The applicant will have
occasion to put their point of view at the time
of framing of charge and at the time of
recording of the evidence.

13. On the basis of above
discussions, I do not find any good reason
for interfering in the impugned order. The
application has got no force and therefore,
it is liable to be dismissed.

14. The application U/S 482 Cr.P.C.
is dismissed accordingly.

15. The learned counsel for the
applicants has requested that some protection
may be given as the applicants have been
summoned in the complaint case.

16. It is directed that if within 30 days
from today, the applicants appear before the
court and file their bail application, the
same shall be disposed of expeditiously
preferably on the same day and for these 30
days no coercive measures shall be taken
against the applicants.
-------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

CIVIL MISC. WRIT PETITION No.38158 of 2012
(U/s -482 Cr. P.C.)
Vishweshwar Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Imran Ullah.

Counsel for the Opposite Parties:
A.G.A., Sri N.L. Pandey, Sri Pankaj
Srivastava, Sri G.P. Singh.

A. Indian Penal Code-Section 499 IPC-
First, it must be established that matter
printed
and
offered
for
sale
was
defamatory; second, if proved, next it
must be examined whether the accused
committed such act with the requisite
intention or knowledge, etc. to make his
act culpable. (Para 22)

B. Indian Penal Code - Defamation - Once
trial court finds - that a news item printed
was defamatory- then whether the news
item was printed- knowingly that the same
would tarnish the image of the opposite
party or not - is a matter of evidence for
which a full-fledged trial is required to be
held for the same - Proceedings cannot be
nibbed in the bud by the High Court
exercising extraordinary power u/s 482
Cr.P.C (Para 21)

C.
Indian
Penal
Code-Defamation-If
news
item-printed
in
newspaperswithout making proper care/enquiry-
possibility that the same have been
published in order to bring down the
image of the opposite party cannot be
ruled out, completely. (Para 18)

D. Certain news item was printed, which
was found by the trial court to be
defamatory against the opposite party
no. 2, as two witnesses stated upon
reading the said piece of evidence, they
started viewing the opposite party no. 2
in poor light, considering that he was a
criminal.

Held:-It would be appropriate to have a fullfledged trial so as to gather the intention of