# Laxmi Shankar Pandey & Ors v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-17
- **Case number:** Criminal Misc. Application U/S 482 No. 42957 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laxmi-shankar-pandey-ors-v-state-of-u-p-anr-50052
- **Pages:** 5

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections -323, 504, 506, 356 .

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Sections 155(2) , 200,
202, 203, 204(2) & 254 - If the Magistrate
taking cognizance of an offence considers
that
there
is
sufficient
ground
for
proceeding - he shall issue process against
the accused person -Object of requiring
the complainant/opposite party no.2 to
furnish a list of witnesses before issue of
process to the accused - contemplated
under Section 204(2) Cr.P.C. - to enable
the
accused
persons
to
prepare
themselves for their cross-examination -
nothing in section 204 Cr.P.C. says or
indicates that if no list of prosecution
witnesses is filed before the process is
issued to the accused, then none can be
filed later .(Para -8,10)

NCR filed by opposite party no.2 against
applicants - application under Section 155(2)
CrPC - requesting SHO to conduct investigation
- case treated as complaint case - summoned
applicants
-
appeared
before
court
and
obtaining bail - summoning order not passed
considering mandatory provision of Section
204(2) of CrPC - which requires list of
prosecution
witnesses
before
issuing
a
summons - process improper and illegal -
proceedings an abuse of law - application for
quashing entire proceedings & summoning
order.(Para -3,4)

HELD:-Section 204 (2) Cr.P.C. protects accused
interests from harassment by unscrupulous
litigants and does not limit Magistrate's power to
issue summons to witnesses under Section 254
(2) Cr.P.C.. Section 204(2) Cr.P.C. provisions do
not vitiate the issue of process or Court
jurisdiction, even if mandatory.(Para -10,11)

Application u/s 482 Cr.P.C. dismissed. (E7)

## Text

4 All. Laxmi Shankar Pandey & Ors. Vs. State of U.P.& Anr.
93
----------
(2023) 4 ILRA 93
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.02.2023

BEFORE

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

Criminal Misc. Application U/S 482 No. 42957 of
2022

Laxmi Shankar Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sandeep Pandey

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections -323, 504, 506, 356 .

(B) Criminal Law - Code of Criminal
Procedure, 1973 - Sections 155(2) , 200,
202, 203, 204(2) & 254 - If the Magistrate
taking cognizance of an offence considers
that
there
is
sufficient
ground
for
proceeding - he shall issue process against
the accused person -Object of requiring
the complainant/opposite party no.2 to
furnish a list of witnesses before issue of
process to the accused - contemplated
under Section 204(2) Cr.P.C. - to enable
the
accused
persons
to
prepare
themselves for their cross-examination -
nothing in section 204 Cr.P.C. says or
indicates that if no list of prosecution
witnesses is filed before the process is
issued to the accused, then none can be
filed later .(Para -8,10)

NCR filed by opposite party no.2 against
applicants - application under Section 155(2)
CrPC - requesting SHO to conduct investigation
- case treated as complaint case - summoned
applicants
-
appeared
before
court
and
obtaining bail - summoning order not passed
considering mandatory provision of Section
204(2) of CrPC - which requires list of
prosecution
witnesses
before
issuing
a
summons - process improper and illegal -
proceedings an abuse of law - application for
quashing entire proceedings & summoning
order.(Para -3,4)

HELD:-Section 204 (2) Cr.P.C. protects accused
interests from harassment by unscrupulous
litigants and does not limit Magistrate's power to
issue summons to witnesses under Section 254
(2) Cr.P.C.. Section 204(2) Cr.P.C. provisions do
not vitiate the issue of process or Court
jurisdiction, even if mandatory.(Para -10,11)

Application u/s 482 Cr.P.C. dismissed. (E7)

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

1. Heard Mr. Sandeep Pandey, learned
counsel for the applicants, Mr. K.P. Pathak,
learned AGA for the State and perused the
records.

2. This application U/s 482 Cr.P.C. has
been filed by the applicant with a prayer to
quash
the
summoning
order
dated
04.09.2015
as
well
as
the
entire
proceedings of Old Case No.1118 of 2018
(New Case No.4678 of 2021) (Smt. Rajni
Mishra vs. Laxmi Shankar Pandey and
others), under Sections 323, 504, 506, 356
IPC, Police Station-Kotwali Katra, DistrictMirzapur, pending before the Court of
Chief Judicial Magistrate, Mirzapur.

3. Brief facts of the case are that an
NCR was lodged by the opposite party no.2
on 29.09.2014 against the applicants under
Sections 323, 504, 506 IPC at Police
Station-Kotwali Katra, District-Mirzapur.
Subsequently,
on
10.10.2014,
an
94 INDIAN LAW REPORTS ALLAHABAD SERIES
application under Section 155(2) CrPC was
filed by the opposite party no.2 before the
concerned Magistrate requesting that the
concerned SHO be directed to conduct the
investigation in the above NCR, on which,
the aforesaid case was treated as complaint
case and after recording the statements
under Sections 200 and 202 Cr.P.C., the
applicants have been summoned vide order
dated 04.09.2015. Pursuant to which, the
applicants appeared before this Court and
have obtained bail. Therefore, the present
application has been filed for quashing of
the entire proceedings pursuant to the
summoning order.

4. Learned counsel for the applicants
submits that the summoning order has not
been passed considering the mandatory
provision of Section 204(2) of CrPC
wherein it has been mentioned that before
issuing summon, the list of prosecution
witnesses has to be provided. He further
submits that as the said provision is
mandatory
in
nature
and
the
complainant/opposite party no.2 having not
furnished the list of witnesses, therefore,
the issue of process against the accusedapplicant is improper and illegal. He further
submits that no offence under the relevant
section is made out, therefore, the entire
proceedings are nothing but abuse process
of law and the same may be quashed by
this Court.

5. Per contra, learned AGA submits
that the complainant/opposite party no.2
has named herself as a witness of the
incident in the complaint and, therefore it
cannot be said that no list of witnesses has
been furnished. In this regard, it is
submitted that it is not necessary to furnish
a separate list of witnesses and the
complainant/opposite party no.2 having
been named as a witness in the complaint
itself, the same is sufficient compliance of
the provisions prescribed under Section
204(2) Cr.P.C. It is submitted that as the
said
provision
under
Section
204(2)
Cr.P.C., regarding furnishing of a list of
witnesses before issue of process to the
accused is only a matter of procedure, the
same is not mandatory and the same can be
complied before commencement of the
trial, to avoid any prejudice to the accused
persons. Even otherwise, the applicants
have already given up their claim as the
summoning order of the year 2015 is being
challenged after a laps of about 7 years and
after being released on bail. As regards the
other contentions that the offence under the
relevant sections has not made out, perusal
of the FIR itself goes to show that the
applicants after using abusive language
entered into the house of the opposite party
no.2 and assaulted the opposite party no.2
and her family members with kicks, fists,
lathi and danda, due to which they
sustained injuries. They also threatened her
to leave the house or to face dire
consequences. Thus, the allegations are
prima facie made out. Therefore, no
interference is required by this Court.

6. I have carefully considered the
submissions advanced by learned counsel
for the parties and have also gone through
the material available on record.

7. The principal issue which thus
arises is with regard to the manner of
taking cognizance and issuing process as
per the procedure prescribed under the
Code and as to whether detailed and
elaborate reasons are required to be
recorded at the stage of taking cognizance
or issuing of process. Complaints to
Magistrate are dealt with under Chapter XV
of the Code. The provisions relating to
examination
of
complainant
and
the
4 All. Laxmi Shankar Pandey & Ors. Vs. State of U.P.& Anr.
95
witness are under Sections 200 and 202
Cr.P.C. Section 202 Cr.P.C. provides for
postponement of issue of process, where
the Magistrate, thinks fit, to either inquire
into the case himself or direct an
investigation to be made by a police officer
or by such other person as he thinks fit, for
the purposes of deciding whether or not
there is sufficient ground for proceeding.
Section 203 CrPC provides for dismissal of
complaint in a situation where after
considering the statements on oath (if any)
of the complainant and of the witnesses and
the result of the inquiry or investigation (if
any)
under
Section
202
CrPC,
the
Magistrate is of the opinion that there is no
sufficient ground for proceeding. The
relevant Sections 200, 202 and 203 CrPC,
are being extracted below:-

"200.
Examination
of
complainant.-
A
Magistrate
taking
cognizance of an offence on complaint
shall examine upon oath the complainant
and the witnesses present, if any, and the
substance of such examination shall be
reduced to writing and shall be signed by
the complainant and the witnesses, and
also by the Magistrate: Provided that, when
the complaint is made in writing, the
Magistrate
need
not
examine
the
complainant and the witnesses- (a) if a
public servant acting or purporting to act
in the discharge of his official duties or a
Court has made the complaint; or (b) if the
Magistrate makes over the case for inquiry
or trial to another Magistrate under section
192: Provided further that if the Magistrate
makes over the case to another Magistrate
under section 192 after examining the
complainant and the witnesses, the latter
Magistrate need not re-examine them.

202. Postponement of issue of
process.- (1) Any Magistrate, on receipt of
a complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under section 192,
may, if he thinks fit, and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises his
jurisdiction postpone the issue of process
against the accused, and either inquire into
the case himself or direct an investigation
to be made by a police officer or by such
other person as he thinks fit, for the
purpose of deciding whether or not there is
sufficient ground for proceeding: Provided
that no such direction for investigation
shall be made- (a) where it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Sessions; or (b) where the complaint has
not been made by a Court, unless the
complainant and the witnesses present (if
any) have been examined on oath under
section 200.

(2) In an inquiry under subsection (1), the Magistrate may, if he thinks
fit, take evidence of witness on oath:
Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session, he shall call upon the complainant
to produce all his witnesses and examine
them on oath.

(3) If an investigation under subsection (1) is made by a person not being a
police officer, he shall have for that
investigation all the powers conferred by
this Code on an officer in charge of a
police station except the power to arrest
without warrant.

203. Dismissal of complaint.-If,
after considering the statements on oath (if
any) of the complainant and of the
witnesses and the result of the inquiry or
investigation (if any) under section 202, the
Magistrate is of opinion that there is no
sufficient ground for proceeding, he shall
dismiss the complaint, and in every such
96 INDIAN LAW REPORTS ALLAHABAD SERIES
case he shall briefly record his reasons for
so doing."

8. The procedure for commencement
of proceedings before Magistrates is
provided under Chapter XVI of the Code.
Section 204 CrPC provides that if the
Magistrate taking cognizance of an offence
considers that there is sufficient ground for
proceeding, he shall issue process against
the accused person. Section 204 CrPC
reads as follows:-

"204. Issue of process.- (1) If in
the opinion of a Magistrate taking
cognizance of an offence there is sufficient
ground for proceeding, and the case
appears to be- (a) a summons-case, he
shall issue his summons for the attendance
of the accused, or (b) a warrant-case, he
may issue a warrant, or, if he thinks fit, a
summons, for causing the accused to be
brought or to appear at a certain time
before such Magistrate or (if he has no
jurisdiction himself) some other Magistrate
having jurisdiction.

(2) No summons or warrant shall
be issued against the accused under subsection (1) until a list of the prosecution
witnesses has been filed.

(3) In a proceeding instituted upon
a complaint made in writing, every summons
or warrant issued under sub- section (1) shall
be accompanied by a copy of such complaint.
(4) When by any law for the time being in
force any process-fees or other fees are
payable, no process shall be issued until the
fees are paid and, if such fees are not paid
within a reasonable time, the Magistrate may
dismiss the complaint.

(5) Nothing in this section shall be
deemed to affect the provisions of section 87."

9. After the close scrutiny of the
aforesaid sections, this Court observed that
the jurisdiction of the Magistrate under
Section 204(1) Cr.P.C. to issue a summons
or a warrant in the first instance, as the case
may be, if he is satisfied that there was
sufficient ground for proceeding cannot be
taken away by the failure on the part of the
complainant to file a list of prosecution
witnesses. Section 204(2) Cr.P.C. does not
override Section 254(1) Cr.P.C., which
imposes a duty on the Magistrate to take all
such evidence as may be produced in
support of the prosecution. Moreover, subsection (2) of Section 254 of the Code
empowers
the
Magistrate,
on
the
application of the prosecution, to issue
summons to any witness. Section 254
Cr.P.C. does not contemplate that the
witness to be examined would be only
those witnesses who were cited in the list
filed by the complainant in terms of Section
204(2) Cr.P.C. Therefore, the provision
regarding submission of a list of witnesses
in Section 204(2) Cr.P.C. cannot be
considered as mandatory in nature so as to
control the jurisdiction of the Magistrate to
proceed with the trial of the accused and
record his plea. Unless clear prejudice is
shown to have been caused to the accused
by late submission of the list of prosecution
witnesses, the order issuing a summons to
him cannot be said to be vitiated.

10. From the discussions made above
the legal position that emerges is that the
object
of
requiring
the
complainant/opposite party no.2 to furnish
a list of witnesses before issue of process to
the accused, as contemplated under Section
204(2) Cr.P.C., appears to be to enable the
accused persons to prepare themselves for
their cross-examination. There is nothing in
section 204 Cr.P.C., which says or indicates
that if no list of prosecution witnesses is
filed before the process is issued to the
accused, then none can be filed later.
4 All. Sushil Kumar Singh Vs. State of U.P.& Anr.
97
Section 204 (2) Cr.P.C. is meant only to
safeguard the interest of the accused
against undue harassment at the hands of
unscrupulous
litigants
and
not
to
circumscribe the power of the Magistrate to
issue summons to any witness, on the
application of the prosecution, as provided
under Section 254 (2) Cr.P.C. Further, even
if it is held that the provisions of Section
204(2) Cr.P.C. are mandatory, that by itself,
would not vitiate the issue of process or the
jurisdiction of the Court.

11. In view of the above, this Court is
of the opinion that the prayer for quashing
the impugned summoning order dated
04.09.2015
as
well
as
the
entire
proceedings of the aforesaid case are
refused, as I do not see any abuse of the
court's process.

12. This application under Section 482
Cr.P.C. lacks merit and is, accordingly,
dismissed.
----------
(2023) 4 ILRA 97
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Application U/S 482 No. 43713 of
2022

Sushil Kumar Singh ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sugendra Kumar Yadav, Sri Dilendra
Pratap Singh, Sri Anoop Trivedi (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections - 419, 420, 467, 468, 471, 504 &
506 - The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(Da) & 3(1)(Dha), The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015 - Section 14A - an appeal shall lie,
from any judgment, sentence or order, not
being an interlocutory order, of a Special
Court or an Exclusive Special Court, to the
High Court both on facts and on law -
When a statutory remedy is created by
enactment for redressal of grievances, the
exercise of inherent power by way of a
petition U/S 482 Cr.P.C. could not be
invoked
ignoring
the
statutory
dispensation.(Para -14)

(B) Code of Criminal Procedure, 1973 -
Section 5 - Saving - when a special Act,
provides remedy of appeal from any
judgment, sentence or order, not being an
interlocutory order, of a Special Court or
an Exclusive Special Court, to the High
Court both on facts and on law, the special
provision in the Act would prevail over the
general provision. (Para - 6)

(C) Code of Criminal Procedure, 1973 -
Section 482 - inherent powers under
section 482 Cr.P.C. can be exercised only
when no other remedy is available to the
litigant and not where a specific remedy is
provided by any particular statute.(Para -
15)

Application seeks to quash proceedings,
including charge sheet and cognizance order -
Objection
related
to
maintainability
of
application
-
applicant
has
a
statutory
alternative remedy to appeal
-
against
cognizance/summoning order under Section
14-A
of
the 1989
Act
-
petition
not
maintainable - due to non-obstant clause in
Section 14-A - appeals must lie from a Special
Court judgment to the High Court (Para -
2,3)