# Kuldeep Agrawal @ Deepak Kumar Agrawal & Ors v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-08
- **Case number:** Application U/S 482 Cr.P.C. No. 19584 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-agrawal-deepak-kumar-agrawal-ors-v-state-of-u-p-anr-46852
- **Pages:** 4

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A - Husband or
relative of a husband of a woman
subjecting her to cruelty , Sections
323 - Punishment for voluntry causing
hurt , Sections 506 - Punishment for
criminal intimidation - at the stage of
issuing
process,
the
Magistrate
is
mainly concerned with the allegations
made in the complaint or the evidence
led in support of the same and he is
only
to
be
prima
facie
satisfied
whether there are sufficient grounds
for
proceeding
against
the
accused.(Para -10)

Application
filed
seeking
quashing
the
cognizance/summoning order as well as the
the entire proceedings of the Criminal Case
- first information report lodged by
opposite party no.2 - allegation - her
marriage was solemnized with applicant
no.1 - after some time husband and in-laws
of opposite party no.2 started harassing her
for additional demand of dowry - stripped
her from their house - restitution of
conjugal rights under Section 9 of the Hindu
Marriage Act - pending consideration - After
obtaining
knowledge
of
filing
of
the
aforesaid suit, opposite party no.2 has
engineered the present case against the
applicants as a counter blast to the same.
(Para - 3,4)

HELD:- For issuing process of summon
against
the
applicants,
the
concerned
Magistrate has not applied his judicial mind
at least on his prima facie satisfaction. The
said order is like a routine order which has
been passed in mechanical manner. At the
time of passing any judicial order including
the order taking cognizance on the charge
sheet, the Court is required to apply judicial
mind
and
even
the
order
of
taking
cognizance cannot be passed in mechanical
manner.(Para - 9)

Application u/s 482 Cr.P.C. allowed. (E6)

List of Cases cited:-

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)02ILR A594
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

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

Application U/S 482 Cr.P.C. No. 19584 of 2020

Kuldeep
Agrawal
@
Deepak
Kumar
Agrawal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Nitin Chandra Mishra

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498-A - Husband or
relative of a husband of a woman
subjecting her to cruelty , Sections
323 - Punishment for voluntry causing
hurt , Sections 506 - Punishment for
criminal intimidation - at the stage of
issuing
process,
the
Magistrate
is
mainly concerned with the allegations
made in the complaint or the evidence
led in support of the same and he is
only
to
be
prima
facie
satisfied
whether there are sufficient grounds
for
proceeding
against
the
accused.(Para -10)

Application
filed
seeking
quashing
the
cognizance/summoning order as well as the
the entire proceedings of the Criminal Case
- first information report lodged by
opposite party no.2 - allegation - her
marriage was solemnized with applicant
no.1 - after some time husband and in-laws
of opposite party no.2 started harassing her
for additional demand of dowry - stripped
her from their house - restitution of
conjugal rights under Section 9 of the Hindu
Marriage Act - pending consideration - After
obtaining
knowledge
of
filing
of
the
aforesaid suit, opposite party no.2 has
engineered the present case against the
applicants as a counter blast to the same.
(Para - 3,4)

HELD:- For issuing process of summon
against
the
applicants,
the
concerned
Magistrate has not applied his judicial mind
at least on his prima facie satisfaction. The
said order is like a routine order which has
been passed in mechanical manner. At the
time of passing any judicial order including
the order taking cognizance on the charge
sheet, the Court is required to apply judicial
mind
and
even
the
order
of
taking
cognizance cannot be passed in mechanical
manner.(Para - 9)

Application u/s 482 Cr.P.C. allowed. (E6)

List of Cases cited:-

1. U.P. Pollution Control Board Vs Dr.
Bhupendra Kumar Modi & anr. , (2009) 2
SCC 147

2. M/s. Pepsi Food Ltd. & anr, Vs Special
Judicial Magistrate & ors. , 1998 UPCrR 118

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

1. Heard Mr. Nitin Chandra
Mishra,
learned
counsel
for
the
applicant and Mr. Pankaj Srivastava,
learned A.G.A. for the State as well as
perused the entire material available on
record.

2. This application under Section
482 Cr.P.C. has been filed seeking
quashing
the
cognizance/summoning
order dated 20th January, 2020 as well
as the the entire proceedings of the
Criminal Case No. 51 of 2020 (State
Vs. Kuldeep Agrawal & Others), arising
out of Case Crime No. 0048 of 2019,
2 All. Kuldeep Agrawal @ Deepak Kumar Agrawal & Ors. Vs. State of U.P. & Anr.
595
under Sections 498-A, 323, 506 I.P.C.,
Police Station-Mahila Thana, DistrictMathura, pending in the Court of
Judicial Magistrate, Mathura.

3. Relevant facts for deciding the
present application under Section 482
Cr.P.C. are as follows:

A first information report has
been lodged by opposite party no.2,
namely, Manisha Agarwal on 2nd March,
2019 at 1719 hours against six named
accused persons including the present
applicants
alleging
therein
that
her
marriage was solemnized with applicant
no.1, namely, Kuldeep Agrawal @ Deepak
Kumar Agrawal on 18th June, 2005 but
after some time i.e in the year 2018, the
husband and in-laws of opposite party no.2
started harassing her for additional demand
of dowry and on 27th June, 2018, they
stripped her from their house. Against the
lodging of the aforesaid first information
report, all the named accused persons
including the applicants approached this
Court earlier by means of Criminal Misc.
Writ Petition No. 7235 of 2019. A Division
Bench of this Court vide order dated 15th
March, 2019 referred the matter to the
Allahabad High Court Mediation and
Conciliation
Centre
for
reconciliation/settlement of the dispute
arose between the applicants and opposite
party no.2 as well as granted interim
protection
to
the
applicants.
Upon
completion of statutory investigation under
Chapter XII Cr.P.C., the Investigating
Officer has submitted charge-sheet against
the applicants under Sections 498-A, 323,
506 I.P.C. on 20th January, 2020. On
submission of the aforesaid charge-sheet
the concerned Magistrate by means of a
common order has taken cognizance
thereon and has also issued process of
summons against the applicants. It is
against
this
order
and
the
entire
proceedings of the aforesaid criminal case
that the present application under Section
482 Cr.P.C. has been filed.

4. It has been submitted by learned
counsel for the applicants that the first
information report has been lodged with
false and frivolous allegations. It is
surprising that after more than 12 years of
marriage of opposite party no.2 with
applicant no.1, her husband and in-laws
started harassing her for additional demand
of dowry. The real fact is that she is a
modern lady and did not want to live with
her in-laws. She also does not take care her
children. In order to build pressure on the
applicant no.1 and his family members, she
started hot talk and quarrel with the
applicants and she also started beating her
children. Applicant no.1 and his family
members made all efforts so that she may
live happily with them and take care of her
children, but all efforts went in vain.
Ultimately, when no option was left with
applicants,
applicant
no.1
moved
an
application for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act
before the Court by means of Suit No. 2871
of 2018, which is pending consideration.
After obtaining knowledge of fling of the
aforesaid suit, opposite party no.2 has
engineered the present case against the
applicants as a counter blast to the same.

5. Learned counsel for the applicants
also submits that after submission of charge
sheet the applicants have been summoned
by order dated 20th January, 2020 and the
court
below
while
summoning
the
applicants has materially erred and did not
follow the dictum of law as propounded by
the Hon'ble Supreme Court in various cases
that summoning in criminal case is a
596 INDIAN LAW REPORTS ALLAHABAD SERIES
serious matter and the court below without
dwelling into material and visualising the
case on the touch stone of probability
should not summon accused person to face
criminal trial. It is further submitted that
the court below has not taken into
consideration the material placed before the
trial court along with charge sheet and,
therefore, the trial court has materially
erred in summoning the applicants. The
court below has summoned the applicants
through a routine/mechanical order, which
is wholly illegal. It is next submitted that
no offence as described in the F.I.R. or in
the statement of the witnesses recorded
during the course of investigation has taken
place and the whole story as narrated in the
F.I.R. as well as in the statement of the
witnesses
has
been
cooked
and
manufactured, therefore, the court below
has materially erred in summoning the
applicants, as such the orders are liable to
be set aside.

6. Learned A.G.A., however, opposes
the contention of learned counsel for the
applicants on the ground that the court
below keeping in view the charge sheet and
material submitted therewith, after applying
judicial
mind
and
finding
sufficient
material
on
record,
summoned
the
applicants to face trial and, therefore, there
is nothing illegal so far as the order of
summoning passed by the court below is
concerned.

7. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present application under Section 482
Cr.P.C.

8. It would be worthwhile to
reproduce the cognizance/summoning order
passed by the concerned Magistrate dated
20th January, 2020, which reads as follows:

"20.01.2020---Aaj Thana Haja se
aarope patray prapt hua. Pesh hokar
aadesh
hua
ki
darj
register
ho.
Abhiyuktgan ke virudh aarope patra me
ankit dharaon me prasangyan liya jata hai.
Aarope patra me varnit abhiyuktgan ke
virudh sommon dinank 10.03.2020 niyat
kar jari ho. Nakal taiyar ho. Patravali
vaaste dene ke liye. Aarope niyat dinank to
pesh ho."

9. Perusal of the aforesaid order
indicates that for issuing process of
summon
against
the
applicants,
the
concerned Magistrate has not applied his
judicial mind at least on his prima facie
satisfaction. The said order is like a routine
order which has been passed in mechanical
manner. At the time of passing any judicial
order including the order taking cognizance
on the charge sheet, the Court is required to
apply judicial mind and even the order of
taking cognizance cannot be passed in
mechanical manner.

10. In U.P. Pollution Control Board
vs. Dr. Bhupendra Kumar Modi & Anr.,
reported in (2009) 2 SCC 147, this Court,
in paragraph 23, held as under:

"23. It is a settled legal position
that at the stage of issuing process, the
Magistrate is mainly concerned with the
allegations made in the complaint or the
evidence led in support of the same and he
is only to be prima facie satisfied whether
there are sufficient grounds for proceeding
against the accused."

11. In ruling M/s. Pepsi Food Ltd. &
another vs. Special Judicial Magistrate
2 All. Alakhram Vs. State of U.P. & Anr.
597
& others, reported in 1998 UPCrR 118"
Hon'ble Supreme Court held :-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning the accused. Magistrate
had to carefully scrutinize the evidence
brought on record and may even himself
put questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused."

12. In light of the judgments referred
to above, it is explicitly clear that the order
dated 20th January, 2020 passed by the
concerned Magistrate is cryptic and does
not stand the test of the law laid down by
the Apex Court. Consequently, the order
dated 20th January, 2020 cannot be legally
sustained, as the Magistrate failed to
exercise the jurisdiction vested in him/her
resulting in miscarriage of justice.

13. Accordingly, the present criminal
misc. application succeeds and is allowed
at the admission stage without issuing
notice to the prospective opposite parties,
as opposite party no.2 has no right to be
heard at pre-cognizance stage. Order dated
20th January, 2020 is, hereby, quashed.

14. The Judicial Magistrate, Mathura
is directed to exercise his discretionary
power and decide afresh the application for
summoning
the
applicants
and
pass
appropriate orders in accordance with law
keeping in view the observations made by
this Court as well as the direction contained
in the judgments referred to above within a
period of two months from the date of
production of a certified copy of this order.
----------
(2021)02ILR A597
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 19600 of 2020

Alakhram ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Virpratap Singh, Sri Rajat Agarwal

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 - Order for
maintenance of wives , children and
parents - Section 125 of the Code of
Criminal Procedure enacted to achieve a
social purpose - primary object - to
render social justice to the woman, child
and infirm parents so as to prevent
destitution and vagrancy compelling those
who can support those who are unable to
support themselves but have a moral