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

- **Citation:** Application U/S 482 Cr.P.C. No. 47672 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-30
- **Case number:** Application U/S 482 Cr.P.C. No. 47672 of 2018
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahboob-ors-v-state-of-u-p-anr-45194
- **Pages:** 5

## Headnote

(A) Criminal law-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 323, 504, 506,
452 I.P.C. - application under Section
156(3) Cr.P.C. - Statement of the
complainant under Section 200 Cr.P.C.
- Statement of witnesses under 202
Cr.P.C. - disputed questions of fact
and the defence of the accused cannot
be taken into consideration at the
pre-trial stage - present case - no
cognizable
offence
is
made
out
against the applicants - impugned
order
does
not
suffer
from
any
illegality - no abuse of the process of
law. (Para- 12,16,17)

Application under Section 156(3) - before the
Judicial Magistrate - dispute relating to money
transaction between the complainant and the
applicant - On making objection - the accused
persons assaulted him and his wife due to which
they have received injuries - summoned the
applicants under Sections 452, 323, 504, 506
I.P.C. to face trial - witnesses - examined under
Section 202 - Magistrate has recorded the
statement of the complainant under Section 200
Cr.P.C. - learned magistrate summoned
accused under section 204 Cr.P.C.(Para - 3)

HELD:- At the stage of summoning under
Section 204 Cr.P.C., learned Magistrate is
neither required to go into the merits and demerits of the case nor to examine the
genuineness of the allegations or otherwise -
learned Magistrate is required to see, whether
on taking the entire contents of the complaint
on their face value as it is the prima-facie
offence is made out against the accused or not.
(Para-10)

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

List Of Cases Cited:-
1772 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3-5 All. Mahboob & Ors. Vs. State of U.P. & Anr.
1771
of Cr.P.C., merits dismissal and it stands
dismissed accordingly.

9.

Applicants
prayed
for
a
protection from being victimized in
above case.

10. In view of the prayer made by
the applicants, they are being afforded an
opportunity to appear and surrender
before the court below within 30 days
from today and apply for bail. Their
prayer for bail shall be considered and
decided in view of the settled law laid by
this Court in the case of Amrawati and
another Vs. State of U.P. reported in
2004 (57) ALR 290 as well as judgement
passed by Hon'ble Apex Court reported in
2009 (3) ADJ 322 (SC) Lal Kamlendra
Pratap Singh Vs. State of U.P.

11. For a period of 30 days from
today, no coercive action shall be taken
against the applicants.

12. In case, if the applicants do not
appear before the Court below within the
aforesaid period, coercive action shall be
taken against them.
----------
(2020)03-05ILR A1771
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2019

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 Cr.P.C. No. 47672 of 2018

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

Counsel for the Applicants:
Sri Ravindra Sonker
Counsel for the Opposite Parties:
A.G.A.

(A) Criminal law-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 323, 504, 506,
452 I.P.C. - application under Section
156(3) Cr.P.C. - Statement of the
complainant under Section 200 Cr.P.C.
- Statement of witnesses under 202
Cr.P.C. - disputed questions of fact
and the defence of the accused cannot
be taken into consideration at the
pre-trial stage - present case - no
cognizable
offence
is
made
out
against the applicants - impugned
order
does
not
suffer
from
any
illegality - no abuse of the process of
law. (Para- 12,16,17)

Application under Section 156(3) - before the
Judicial Magistrate - dispute relating to money
transaction between the complainant and the
applicant - On making objection - the accused
persons assaulted him and his wife due to which
they have received injuries - summoned the
applicants under Sections 452, 323, 504, 506
I.P.C. to face trial - witnesses - examined under
Section 202 - Magistrate has recorded the
statement of the complainant under Section 200
Cr.P.C. - learned magistrate summoned
accused under section 204 Cr.P.C.(Para - 3)

HELD:- At the stage of summoning under
Section 204 Cr.P.C., learned Magistrate is
neither required to go into the merits and demerits of the case nor to examine the
genuineness of the allegations or otherwise -
learned Magistrate is required to see, whether
on taking the entire contents of the complaint
on their face value as it is the prima-facie
offence is made out against the accused or not.
(Para-10)

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

List Of Cases Cited:-
1772 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Mahboob & Ors. vs. State of U.P. Through
Secy. Home Department Civil Secretariat & Anr.,
2016 Law Suit (Allahabad) 3768

2. Eicher Tractors Ltd. Vs. Harihar Singh, 2008
Law Suit (S.C.) 1643,

3. R.P. Kapur Vs. St. of Punjab, AIR 1960 SC
866,

4. St. of Bihar & anr. Vs. P.P. Sharma I.A.S. and
another, 1992 SCC (Cri.) 192
5. Zandu Pharmaceutical Works Ltd. & ors. Vs..
Mohd. Shararful Haque & anr., 2005 SCC (Cri.)
283

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Sri Ravindra Sonker, learned
counsel for the applicants and learned
A.G.A. for the State.

2. This application under Section 482
Cr.P.C.
has
been
preferred
by
the
applicants with a prayer to quash the
impugned
summoning
order
dated
27.09.2018, passed by Judicial Magistrate,
Sahaswan, District Budaun as well as the
entire proceeding of Complaint Case No.
75 of 2018 (Acchan Miyan vs. Mahboob
and others), under Sections 323, 504, 506,
452 I.P.C., Police Station Sahaswan,
District Budaun, pending in the court of
Judicial Magistrate, Sahaswan, District
Budaun.

Basic Facts

3. Facts in brief of the case is that
opposite party no. 2 filed an application
under
Section
156(3)
Cr.P.C.
on
09.04.2018 before the Judicial Magistrate,
Sahaswan, District Budaun with a prayer to
issue direction to the incharge Inspector of
Police Station Sahaswan, District Budaun
to lodge the first information report against
the present applicants raising allegations
that the complaint is the resident of same
locality where the applicants reside. In the
complaint it is said that there was a dispute
relating to money transaction between the
complainant and the applicant no. 4 &
others but later it was settled on the
intervention
of
the
neighbours.
On
02.04.2018 at about 06:00 P.M. when the
complainant was lying on a cot in his house
and his wife was cooking food, the accused
persons entered into his house along with
weapons
and
started
abusing
the
complainant. On making objection, the
accused persons assaulted him and his wife
namely Smt. Chanda Bee due to which they
have received injuries. It is further alleged
that on raising alarm by the wife of the
complainant, several other persons of
locality namely Sakhi Ahmad, Shabab and
others rushed to the place of occurrence
and saved the complainant and his wife,
Smt. Chanda Bee. It is submitted that on
the next day, the complainant got himself
medically examined and medical report
along with application was sent to the
police but no action was taken. Injury
report of the complainant, Acchhan Miyan
is on record which is appended as
Annexure No. 2 to the affidavit filed in
support of this application and on perusal
of the same it is clear that the complainant
Acchhan Miyan was examined by Medical
Officer of the Government Hospital on
03.04.2018 at 09:30 P.M. and he received
four injuries on his person. The said
application
dated
09.04.2018
of
the
complainant was treated as complaint
which was registered as Complaint Case
No. 75 of 2018 in the court of Judicial
Magistrate, Sahaswan, District Budaun by
order dated 03.07.2018.

4. Learned Magistrate has recorded
the statement of the complainant under
3-5 All. Mahboob & Ors. Vs. State of U.P. & Anr.
1773
Section 200 Cr.P.C. on 30.08.2018 in
which
he
retreated
the
version
as
mentioned
in
his
application
dated
09.04.2018. From the side of complainant
witnesses Mohd. Fasal, Smt. Chanda Bee
and Sakhi Ahmad have been examined
under Section 202 as PW-1, PW-2 & PW-3
respectively on 07.09.2018 are on record
and appended as Annexures no. 2, 3 and 4
respectively to the affidavit filed in support
of this application. Learned Magistrate by
order dated 27.09.2018 summoned the
applicants under Sections 452, 323, 504,
506 I.P.C. to face trial.

Submissions on behalf of applicants

5. It is submitted by the learned counsel
for the applicants that prior to moving of
application dated 09.04.2018, under Section
156(3) Cr.P.C. by the complainant of this case,
the applicant no. 4 has also filed an application
under Section 156(3) Cr.P.C. against the
opposite party no. 2 and others. On 26.03.2018
it was also treated as complaint bearing
Complaint Case No. 25 of 2018, on which
learned Judicial Magistrate, Sahaswan, District
Budaun after recording the statement of
applicant no. 4 and his witnesses under Sections
200 and 202 Cr.P.C. respectively, summoned
the opposite party no. 2 and others under
Sections 323, 504 and 506 I.P.C. by
summoning order dated 18.08.2018 and they
are facing trial. Copy of the application dated
26.03.2018, under Section 156(3) Cr.P.C. of
applicant no. 4 and summoning order dated
18.08.2018
passed
by
learned
Judicial
Magistrate, Sahaswan, District Budaun against
opposite parties no. 2 and others are appended
as Annexures no. 6 and 7 to the affidavit filed in
support of application.

6. On the aforesaid fact, it is submitted by
learned counsel for the applicants that the
allegation in the impugned complaint against
the applicants is false and infact true fact is that
applicant no. 4 is a permanent resident of Delhi.
On 04.03.2018, the applicant no. 4 came in the
village of complainant to participate in the
marriage, where complainant and other 13
persons associated with him for hatching
conspiracy and assaulted the applicant no. 4,
who in order to save his life entered into the
house of his sister-in-law. Then the complainant
side entered into the said house and assaulted
him by tearing the clothes and also looted Rs.
40,000/-. It is submitted that the injury report as
filed by the opposite party no. 2/complainant is
fictitious and injuries are simple in nature. The
witnesses of complainant are interested
witnesses who cannot be relied upon. It is
submitted that the launching of criminal
proceeding by the opposite party no. 2 against
the applicants is abuse of the process of law. No
offence under Sections 452, 323, 504, 506
I.P.C. are made out against the applicants. The
learned
Magistrate
has
summoned
the
applicants by impugned summoning order
dated 27.09.2018 is without recording his
satisfaction.

7. Learned counsel for the applicants
has placed reliance upon the judgment of
this Court in the case of Mahboob & Ors.
vs. State of U.P. Through Secy. Home
Department Civil Secretariat & Anr., 2016
Law Suit (Allahabad) 3768, decided on
20.12.2016, in which the co-ordinate Bench
of this Court has quashed the summoning
order with a direction to pass fresh order
because in that case, learned Magistrate has
passed a very cryptic order simply by
saying that from the statement of the
complainant as well as other witnesses
recorded under Sections 200 and 202
Cr.P.C. there are no sufficient ground to
summon the accused persons.

8. Learned counsel for the applicants
has further placed reliance upon the
1774 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of Apex Court passed in the case
of Eicher Tractors Ltd. vs. Harihar Singh,
2008 Law Suit (S.C.) 1643, wherein the
Apex Court relying on the parameters
indicated in category (7) of Bhajan Lal's
case and quashed the proceedings under
Sections 420, 468, 471 I.P.C.

Submissions on behalf of State

9. Per contra learned A.G.A. has
submitted that the facts of the aforesaid
two judgments, reliance upon which has
been placed by learned counsel for the
applicants are based on different facts
and circumstances. It is submitted that
in the present case, there are four
injuries
on
the
persons
of
the
complainant, which is also apparent
from the injury report dated 03.04.2018
of the opposite party no. 2. The learned
Magistrate has passed the impugned
summoning order dated 27.09.2018
after
considering
the
entire
facts
narrated in the complaint as well as the
affidavit, copy of application sent to
S.S.P., copy of injury report and receipt
of registered post as well as statements
of
the
complainant
and
witnesses
namely PW-1 Mohd. Fasal, PW-2 Smt.
Chanda Bee and PW-3 Sakhi Ahmad.
Learned A.G.A. has further submitted
that the learned Magistrate has recorded
the
reason
of
satisfaction
for
summoning the accused applicants to
face trial and also mentioned that from
the material evidence available on
record, prima-facie evidence against the
applicants under Sections 323, 504,
506, 452 I.P.C. are made out, therefore,
there is no illegality in the impugned
summoning order dated 27.09.2018 and
as such the present application is liable
to be dismissed.

Discussion

10. After having heard the arguments
advanced on behalf of learned counsel for the
parties and examining the record, I find that the
requirement of summoning the accused under
Section 204 Cr.P.C. as settled by the Apex
Court, has fulfilled by the learned Magistrate in
the impugned order dated 27.09.2018. It is well
settled that at the stage of summoning under
Section 204 Cr.P.C., learned Magistrate is
neither required to go into the merits and demerits of the case nor to examine the
genuineness of the allegations or otherwise. At
the stage of summoning the accused, learned
Magistrate is required to see, whether on taking
the entire contents of the complaint on their face
value as it is the prima-facie offence is made out
against the accused or not.

11. In this case the complainant has
received injuries. The injury report is on
record. Accepting the contents of the
complaint as true, this Court feel that
prima-facie offence against the applicants
are made out.

12. It is also well settled that the
disputed questions of fact and the defence
of the accused cannot be taken into
consideration at the pre-trial stage. After
going through the facts of the case of
Mahboob & Ors. vs. State of U.P. Through
Secy. Home Department Civil Secretariat
(supra) and Eicher Tractors Ltd. vs.
Harihar Singh (supra), I find that the fact
of both the cases are on different footing.
There was no injury report also in the
aforesaid cases. The manner of passing
summoning order, as it was in the case of
Mahboob & Ors. vs. State of U.P. (supra)
was also different. In that case, summoning
order was cryptic and very laconic in
nature, while the impugned order dated
27.09.2018 of this case is otherwise and the
3-5 All. State of U.P. & Anr. Vs. S.M. College, Chandausi & Anr.
1775
same has been passed considering all the
material evidence on record.

13. The Apex Court in R.P. Kapur
vs. State of Punjab, AIR 1960 SC 866,
summarized come categories of cases
where inherent power can and should be
exercised to quash the proceedings :-

(i) where it manifestly appears
that there is a legal bar against the
institution
or
continuance
of
the
proceedings;

(ii) where the allegations in the
first information report or complaint
taken at their face value and accepted in
their entirety do not constitute the
offence alleged;

(iii)
where
the
allegations
constitute an offence, but there is no
legal evidence adduced or the evidence
adduced clearly or manifestly fails to
prove the charge.

14. The Apex Court in State of Bihar and
another vs. P.P. Sharma I.A.S. and another,
1992 SCC (Cri.) 192, has observed that
Supreme Court has repeatedly held that the
appreciation of evidence is the function of the
criminal courts. High Court in exercise of
power under Article 226 and 227 of the
Constitution of India cannot assume such
jurisdiction and put an end to the process of
investigation and trial provided under the law.

15. The Apex Court in Zandu
Pharmaceutical Works Ltd. and Ors. vs.
Mohd. Shararful Haque and another,
2005 SCC (Cri.) 283, has observed that
when a complaint is sought to be
quashed, it is permissible to look into the
materials to assess what the complainant
has alleged and whether any offence is
made out even if the allegations are
accepted in toto.

Conclusion

16. Considering the nature of
allegations, material available on record
and findings recorded by the learned
Magistrate, the present case does not fall in
the category recognized by the Apex Court,
where this Court can exercise its inherent
power under Section 482 Cr.P.C. to quash
the criminal proceeding at the initial stage.
It is well settled by the Apex Court in
catena of judgments that power under
Section 482 Cr.P.C. should be used
sparingly only to prevent the abuse of the
process of the Court, when there is a patent
error or gross injustice. On accepting the
facts of the present case as mentioned in
the complaint, as true, taking the same in
their entirety, it cannot be said that no
cognizable offence is made out against the
applicants.

17. In view of the above, I do not find
any merit in the arguments so advanced on
behalf of applicants. The impugned order
dated 27.09.2018 does not suffer from any
illegality and there is no abuse of the
process of law. The application lacks merit,
it is accordingly dismissed.
----------
(2020)03-05ILR A1775
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

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

Special Appeal Defective No. 24 of 2020

State of U.P. & Anr. ...Appellants
Versus
S.M. College, Chandausi & Anr.
 ...Respondents