# Mohd. Rashid Khan v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 894
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Application U/S 482. No. 1926 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-rashid-khan-v-state-of-u-p-anr-51694
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 171H & 188 - Code of Criminal
Procedure, 1973 - Sections 155(2), 190 &
195(1) - Counsel for applicant submitted
that during Urban Local Bodies Election,
FIR lodged by Sub-Inspector alleging that
applicant, as candidate from Ward No. 21
affixed poster on pole in front of house of
Ashok Jaiswal, constituting offences u/s
171-H and 188 IPC - Further submitted
that charge sheet and cognizance taken
are without jurisdiction, as Section 171-H
IPC is non-cognizable and Section 195(1)
Cr.P.C. bars cognizance of offences u/s
172-188 IPC except on written complaint
by competent public servant - Held, both
offences are non-cognizable, hence, u/s
155(2) Cr.P.C., police have no right to
investigate matter, without permission of
Magistrate, who has jurisdiction to try
those offences - Thus, rendering charge
sheet vitiated by incurable defects and
procedural irregularities - Neither FIR nor
charge sheet discloses any cognizable
offence, enabling police to investigate
both
cognizable
and
non-cognizable
offences together and to file charge sheet,
hence, charge sheet and criminal case
liable to be quashed - Thus, entire criminal
proceedings, quashed. (Para 3 to 6, 28,
29)

Application allowed. (E-13)

List of Cases cited:

## Text

894 INDIAN LAW REPORTS ALLAHABAD SERIES
Case no. 4383/2010 (Ramesh Chandra
Mishra Vs Ramesh Iyer & others) as well
as impugned summoning orders dated
15.10.2010
passed
by
learned
Chief
Judicial Magistrate Bahraich as well as
Order dated 10.02.2011 by which the
bailable warrant has been issued against the
petitioner in Complaint Case no. 4383/2010
(Ramesh Chandra Mishra Vs Ramesh Iyer
& others) contained as Annexure no 1 & 2
to the writ petition.

31. Petition is allowed.

32. No order as to costs.
----------
(2024) 3 ILRA 894
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 1926 of 2024

Mohd. Rashid Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Chandan
Srivastava,
Rajneesh
Kumar
Singh, Yogesh Somvanshi

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 171H & 188 - Code of Criminal
Procedure, 1973 - Sections 155(2), 190 &
195(1) - Counsel for applicant submitted
that during Urban Local Bodies Election,
FIR lodged by Sub-Inspector alleging that
applicant, as candidate from Ward No. 21
affixed poster on pole in front of house of
Ashok Jaiswal, constituting offences u/s
171-H and 188 IPC - Further submitted
that charge sheet and cognizance taken
are without jurisdiction, as Section 171-H
IPC is non-cognizable and Section 195(1)
Cr.P.C. bars cognizance of offences u/s
172-188 IPC except on written complaint
by competent public servant - Held, both
offences are non-cognizable, hence, u/s
155(2) Cr.P.C., police have no right to
investigate matter, without permission of
Magistrate, who has jurisdiction to try
those offences - Thus, rendering charge
sheet vitiated by incurable defects and
procedural irregularities - Neither FIR nor
charge sheet discloses any cognizable
offence, enabling police to investigate
both
cognizable
and
non-cognizable
offences together and to file charge sheet,
hence, charge sheet and criminal case
liable to be quashed - Thus, entire criminal
proceedings, quashed. (Para 3 to 6, 28,
29)

Application allowed. (E-13)

List of Cases cited:

1. Sachida Nand Singh & anr. Vs St. of Bihar &
anr.; (1998) 2 SCC 493, (Para 7)

2. Daulat Ram Vs St. of Punj.; AIR 1962 SC
1206, (Para 4)

3. M.S. Ahlawat Vs St. of Haryana & anr.; AIR
2000 SC 168, (Para 5)

4. Inder Mohan Goswami Vs St. of Uttaranchal
(2007)12 SCC 1, (Para 23)

5.
Lalankumar
Singh
&
ors..Vs
St.
of
Maharashtra reported in 2022 SCC Online SC
1383, (Para 38)

6. St. of Haryana Vs Bhajan Lal reported in 1992
Supp (1) SCC 335, (Para 102)

7. R.P. Kapoor Vs St. of Punj., AIR 1960 S.C.
866

8. St. of Bihar Vs P.P. Sharma, 1992 SCC (Crl.)
192

9. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283
3 All. Mohd. Rashid Khan Vs. State of U.P. & Anr.
895
10. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maharashtra, AIR 2021 SC 1918

11. S.W. Palankattkar & ors.Vs St. of Bihar,
2002 (44) ACC 168

(Delivered by Hon'ble Shamim Ahmad, J.)

1. Heard learned counsel for the
parties.

2. The instant application under
Section 482 Cr.P.C. has been filed on
behalf of the applicant, namely, Mohd.
Rashid Khan with a prayer to quash the
impugned charge sheet dated 20.11.2017
alongwith
impugned
cognizance/summoning
order
dated
26.02.2019 passed by learned Additional
Chief Judicial Magistrate-Ist, Faizabad in
Case No.551 of 2019 (State Vs. Mohd.
Rashid Khan), arising out of Case Crime
No.0395 of 2017, under Sections 171 H
and 188 of I.P.C., Police Station Cantt.,
District Faizabad as well as to quash the
entire criminal proceedings in pursuance
thereof.

3. Learned counsel for the applicant
submitted that the applicant was contesting
on the post of Councilor in Urban Local
Bodies Election, 2017. During that period
on 17.11.2017, an F.I.R. was lodged by the
opposite party no.2, namely, Sub Inspector
Sri Avnish Kumar Chauhan, the then
Chowki In-charge Sahadatganj, Police
Station Cantt., District Ayodhya/Faizabad
against the applicant alleging therein that
one poster was put on a pole situated in
front of house of Ashok Jaiswal. Further
allegation in the F.I.R. was that the
applicant was a candidate from Ward
No.21 i.e. Sardar Bhagat Singh Ward and
the aforesaid act of the applicant is an
offence under Section 171 H / 188 of I.P.C.

4. Learned counsel for the applicant
further submitted that on 19.11.2017, the
Investigating
Officer
recorded
the
statement of the applicant, wherein he
denied the allegations. On 20.11.2017, the
Investigating
Officer
recorded
the
statement of Opposite Party No.2 and one
witness,
namely,
Constable
Narendra
Singh, under Section 161 Cr.P.C., wherein
they supported the version of F.I.R.

5. Learned counsel for the applicant
further submitted that on 20.11.2017, the
Investigating
Officer
prepared
the
impugned charge sheet dated 20.11.2017
and on 26.02.2019, the learned trial court
without applying its judicial mind, took
cognizance of the offence on police report.

6. Learned counsel for the applicant
further submitted that the F.I.R. was
registered under Sections 171 H and 188
I.P.C., which is without jurisdiction as
Section 171 H of I.P.C. is described as non
cognizable offence in the penal code and
Section
195(1)
Cr.P.C.
specifically
provides that no court shall take cognizance
of any offence under Sections 172 to 188
except upon a complaint in writing of the
public servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate. Thus, taking
cognizance under Section 188 I.P.C. is also
without jurisdiction.

7. Learned counsel for the applicant
further submitted that as per Section 2(d)
Cr.P.C., the opposite party no.2 had no
right to lodge the F.I.R. for offences as
mentioned above rather he had to file the
complaint only before the concerned court.
He further submitted that not only the
F.I.R.
was
registered
but
also
the
investigation was carried out and charge
sheet
was
submitted
without
any
jurisdiction.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned counsel for the applicant
further submitted that even if the entire
story of the prosecution is accepted as true
(only for the sake of argument though not
admitted), Section 171 H of I.P.C. is not
made out against the applicant in the instant
case as only a person other than the
candidate of an election can be made
accused under Section 171 H of I.P.C.

9. Learned counsel for the applicant
further submitted that as per Section 190
Cr.P.C., it is evident that the concerned
Magistrate can take cognizance of any
offence on three conditions i.e. (i) Upon
receiving a complaint of facts, (ii) Upon a
police report, and (iii) Suo-moto.

10. Learned counsel for the applicant
further submitted that the impugned order
dated 26.02.2019 passed by the learned
Additional Chief Judicial Magistrate-Ist,
Faizabad, by which the applicant was
summoned, is also non speaking as the
Magistrate has not considered any material
available before him while summoning the
applicant to face the trial. As such, the
impugned order dated 26.02.2019 on the
face of record appears to be unjustified,
arbitrary, illegal and is passed without
application of judicial mind, therefore, the
same is liable to be set aside by this Court
and the present application under Section
482 Cr.P.C. is liable to be allowed.

11. On the other hand, learned A.G.A.
for the State opposed the argument
advanced by learned counsel for the
applicant and submitted that the impugned
summoning order dated 26.02.2019 is
rightly passed and no interference by this
Court is required in the instant matter,
therefore, the instant application is liable to
be dismissed at this stage only.

12. On careful perusal of the
averments made in this application under
Section 482 Cr.P.C. as well as after hearing
the learned counsel for the parties, the
factual matrix disclose that the opposite
party no.2 i.e. Sub Inspector Sri Avnish
Kumar Chauhan, the then Chowki Incharge Sahadatganj, Police Station Cantt.,
District Ayodhya/Faizabad had lodged an
F.I.R. against the applicant alleging therein
that one poster was put on a pole situated in
front of house of Ashok Jaiswal as the
applicant was a candidate from Ward
No.21 i.e. Sardar Bhagat Singh Ward
contesting on the post of Councilor in
Urban Local Bodies Election, 2017.

13. First of all, it would be relevant to
quote Section 195(1) Cr.P.C., which is
being reproduced hereunder:-

"195(1) Cr.P.C. :- No Court shall
take cognizance -

(a)

(I) of any offence punishable
under sections 172 to 188 (both inclusive)
of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt
to commit, such offence, or

(iii) of any criminal conspiracy to
commit such offence, except on the
complaint in writing of the public servant
concerned or other public servant to whom
he is administratively subordinate;

(b)

(I) of any offence punishable
under any of the following sections of the
Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court, or

(ii) of any offence described in
section 463, or punishable under section
3 All. Mohd. Rashid Khan Vs. State of U.P. & Anr.
897
471, section 475 or section 476 of the said
Code, when such offence is alleged to have
been committed in respect of a document
produced or given in evidence in a
proceeding in any Court, or

(iii) of any criminal conspiracy to
commit, or attempt to commit, or the
abetment of, any offence specified in subclause (i) or sub-clause (ii),

[except on the complaint in
writing of that Court or by such officer of
the Court as that Court may authorise in
writing in this behalf, or of some other
Court to which that Court is subordinate.]
[Substituted by Act 2 of 2006, Section 3 for
"except on the complaint in writing of that
Court, of of some other Court to which that
Court is subordinate" (w.e.f. 16-4-2006).]"

14. From perusal of the aforesaid
Section 195 (1) Cr.P.C., it is clear that the
F.I.R. was registered without jurisdiction as
Section 171 H of I.P.C. is described as a
non-cognizable offence in the penal code
whereas it is specifically mentioned that no
Court shall take cognizance of any offence
under Sections 172 to 188 I.P.C. except
upon a complaint in writing of the public
servant concerned or of some other public
servant to whom he is administratively
subordinate. Thus, taking cognizance under
Section
188
I.P.C.
is
also
without
jurisdiction.

15. It would further be relevant to
quote Section 2(d) Cr.P.C. which is being
reproduced hereunder: -

""complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report."

16. From perusal of the aforesaid
Section 2(d) Cr.P.C., it is clear that the
opposite party no.2 had no right to lodge
the F.I.R. for offences as mentioned above
rather he had to file the complaint only
before the concerned Magistrate.

17. It would also be relevant to quote
Section 171 H of IPC, which is being
reproduced hereunder:-

"171H.
Illegal
payments
in
connection with an election "Whoever
without the general or special authority in
writing of candidate incurs or authorises
expenses on account of the holding of any
public meeting, or upon any advertisement,
circular or publication, or in any other way
whatsoever for the purpose of promoting or
procuring the election of such candidate,
shall be punished with fine which may
extend to five hundred rupees.

PROVIDED that if any person
having incurred any such expenses not
exceeding the amount of ten rupees without
authority obtains within ten days from the
date on which such expenses were incurred
the approval in writing of the candidate, he
shall be deemed to have incurred such
expenses
with
the
authority
of
the
candidate."

18. From perusal of the aforesaid
Section 171 H of I.P.C., it is clear that only
a person other than the candidate of an
election, can be made accused under
Section 171 H of I.P.C. Therefore, there is
substantial merit in the contention of the
learned counsel for the applicant that the
offence under Section 171 H of I.P.C. as
made out would not lie.

19. It would also be relevant to quote
Section 190 Cr.P.C., which is being
reproduced hereunder:-
898 INDIAN LAW REPORTS ALLAHABAD SERIES

"190. Cognizance of offences by
Magistrates.

(1)Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence -

(a)upon receiving a complaint of
facts which constitute such offence;

(b)upon a police report of such
facts;

(c)upon
information
received
from any person other than a police officer
or upon his own knowledge, that such
offence has been committed.

(2)The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

20. From perusal of the aforesaid
Section 190 Cr.P.C., it is clear that the
concerned magistrate can take cognizance
of any offence on three condidtions i.e. (i)
Upon receiving a complaint of facts, (ii)
Upon a police report, and (iii) Suo-moto.

21. Hon'ble the Supreme Court in the
case of Sachida Nand Singh and Another
Vs. State of Bihar and Another; (1998) 2
SCC 493 was pleased to observe at para 7
as under:-

"Even if the clause is capable of
two interpretation we are inclined to
choose the narrower interpretation for
obvious reasons. Section 190 of the Code
empowers "any magistrate of the first
class" to take cognizance of "any offence"
upon receiving a complaint, or police
report or information or upon his own
knowledge. Section 195 restricts such
general powers of the magistrate, and the
general right of a person to move the Court
with a complaint is to that extent curtailed.
It
is
a
well-recognised
canon
of
interpretation that provision curbing the
general jurisdiction of the court must
normally
receive
strict
interpretation
unless the statute or the context requires
otherwise."

22. Further, Hon'ble the Supreme
Court in the case of Daulat Ram Vs. State
of Punjab; AIR 1962 SC 1206 was
pleased to observe at para 4 as under:-

"Now the offence under s. 182 of
the Penal Code, if any, was undoubtedly
complete when the appellant had moved the
Tehsildar for action. Section 182 does not
require that action must always be taken if
the person who moves the public servant
knows or believes that action would be
taken. In making his report to the Tehsildar
therefore, if the appellant believed that
some action would be taken (and he had no
reason to doubt that it would not) the
offence under that section was complete. It
was therefore incumbent, if the prosecution
was to be launched, that the complaint in
writing should be made by the Tehsildar as
the public servant concerned in this case.
On the other hand what we find is that a
complaint by the Tehsildar was not filed at
all, but a charge sheet was put in by the
Station House Officer. The learned counsel
for the State Government tries to support
the action by submitting that s. 195 had
been complied with inasmuch as when the
allegations had been disproved, the letter
of the Superintendent of Police was
forwarded to the Tehsildar and he asked
for "a calendar". This paper was flied
along with the charge sheet and it is stated
that this satisfies the requirements of s.
195. In our opinion, this is not a due
compliance with the provisions of that
3 All. Mohd. Rashid Khan Vs. State of U.P. & Anr.
899
section. What the section comtemplates is
that the complaint must be in writing by the
public servant concerned and there is no
such compliance in the present case. The
cognizance of the case was therefore
wrongly assumed by the court without the
complaint in writing of the public servant
namely the Tehsildar in this case. The trial
was thus without jurisdiction ab inito and
the conviction cannot be maintained."

23. Further, Hon'ble the Supreme
Court in the case of M.S. Ahlawat Vs.
State of Haryana and Another; AIR
2000 SC 168 was pleased to observe at
para 5 as under:-

"Chapter XI of IPC deals with
false evidence and offences against public
justice' and Section 193 occurring therein
provides for punishment for giving or
fabricating false evidence in a judicial
proceeding. Section 195 of the Criminal
Procedure Code (Cr.P.C.) provides that
where an act amounts to an offence of
contempt of the lawful authority of public
servants or to an offence against public
justice such as giving false evidence under
Section 193 IPC, etc. or to an offence
relating to documents actually used in a
court, private prosecutions are barred
absolutely and only the court in relation to
which the offence was committed may
initiate proceedings. Provisions of Section
195 Cr.P.C. are mandatory and no court
has jurisdiction to take cognizance of any
of the offences mentioned therein unless
there is a complaint in writing as required
under that Section. It is settled law that
every incorrect or false statement does not
make it incumbent upon the court to order
prosecution,
but
to
exercise
judicial
discretion to order prosecution only in the
larger interest of the administration of
justice."

24. Now coming to the provision of
first schedule of Cr.P.C., Section 171 H of
Indian Penal Code is covered under the said
provision which is declared as noncognizable and bailable offence, and triable
by the Magistrate of the First Class. Like
wise classification of offence against other
laws in Cr.P.C., it also describes, if any
offence under any other law, if punishable
for less than three years or with fine which
shall be considered as non- cognizable,
bailable and triable by the Magistrate of
First Class.

25. On perusal of the above said
provisions, it is abundantly clear that the
offence registered against the applicant
under Section 171H of IPC is noncognizable in nature. Now, coming to
Section 155(2) of Cr.P.C. which reads as
follows:

"No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial"

26. Particularly, Section 155(2)
mandates the police concerned that such
police officer shall investigate the non-
cognizable offence with the permission of
the Magistrate only. This Section describes
that no Police Officer shall investigate a
non- cognizable case without the order of
the Magistrate having power to try such
case for trial.

27. The provision in sub Section (2)
of Section 155 of Cr.P.C., for asking
permission of the Court to investigate a
non-cognizable offence is mandatory in
nature. Therefore, the investigation of noncognizable offence by the police without
prior
permission
of
the
competent
Magistrate is illegal. Even mere accepting
900 INDIAN LAW REPORTS ALLAHABAD SERIES
the charge sheet by the Magistrate and
taking the cognizance of the offence does
not
validate
the
proceeding.
Even
subsequent permission by the Magistrate
also cannot cure the illegality. As could be
seen from Section 460 of Cr.P.C. these
defects of non- taking permission before
investigating a non- cognizable offence is
also not curable. Though the charge sheet is
filed after due investigation without prior
permission of the Court and that the
Magistrate has accepted the charge sheet
and taken the cognizance, it does not mean
to show permission is granted by the
Magistrate
to
investigate
such
non-
cognizable
offence.
Therefore,
investigation
into
the
non-cognizable
offence without written order of the
Magistrate is strictly contrary to the
provision of this Section.

28. This Court further finds that
the above said two offences are noncognizable offences. Therefore, as per
Section 155(2) of Cr.P.C., the police have
no right or jurisdiction to investigate the
matter, without prior permission of the
Magistrate, who has got jurisdiction to
try those offences. Therefore, the entire
charge sheet filed by the police is vitiated
by
serious
incurable
defects
and
procedural irregularities.

29. This Court further finds that the
F.I.R. as well as the charge sheet, do not
disclose that there was any cognizable
offence made by the applicant, so as to
enable the police to investigate both the
cognizable and non- cognizable offences
together and to file the charge sheet.
Therefore, the entire charge sheet papers
and on the basis of which the criminal case
is registered is liable to be quashed.

30. This Court also finds that the
trial
court
while
summoning
the
applicant by impugned order has totally
failed to appreciate the factual and legal
aspect of the matter. The legal position is
well-settled that when a prosecution at
the initial stage is asked to be quashed,
the test to be applied by the court is as to
whether the uncontroverted allegations
as made prima facie establish the
offence. It is also for the court to take
into consideration any special features
which appear in a particular case to
consider whether it is expedient and in
the interest of justice to permit a
prosecution to continue. This is so on the
basis that the court cannot be utilised for
any oblique purpose and where in the
opinion of the court chances of an
ultimate
conviction
is
bleak
and,
therefore, no useful purpose is likely to
be served by allowing a criminal
prosecution to continue, the court may
while taking into consideration the
special facts of a case also quash the
proceeding even though it may be at a
preliminary stage.

31. Further, the Hon'ble Supreme
Court of India in the case Inder Mohan
Goswami
v.
State
of
Uttaranchal
(2007)12 SCC 1 has held that it would be
relevant to keep into mind the scope and
ambit
of
section
482
Cr.PC
and
circumstances under which the extra
ordinary power of the court inherent therein
as provisioned in the said section of the
Cr.P.C. can be exercised, para 23 is being
quoted here under:-

"23. This court in a number of
cases has laid down the scope and ambit of
courts powers under section 482 Cr.P.C.
Every High Court has inherent power to
act ex debito justitiae to do real and
substantial justice, for the administration of
which alone it exists, or to prevent abuse of
3 All. Mohd. Rashid Khan Vs. State of U.P. & Anr.
901
the process of the court. Inherent power
under
section
482
Cr.P.C.
can
be
exercised:

(i) to give effect to an order under
the Code;

(ii) to prevent abuse of the
process of court, and

(iii) to otherwise secure the ends
of justice."

32. Further, Hon'ble the Supreme
Court of India in the case of Lalankumar
Singh
and
Others
vs.
State
of
Maharashtra reported in 2022 SCC
Online SC 1383 has specifically held in
paragraph No.38 that the order of issuance
of process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. Paragraph No.38
of Lalankumar Singh and Others (supra)
is being quoted hereunder:-

"38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v.
Central Bureau of Investigation, which
reads thus:

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he
shall issue process against the accused.

52. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he thinks
that it is unlikely to result in a conviction.

53.
However,
the
words
"sufficient
ground
for
proceeding"
appearing in Section 204 are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case
against the accused, though the order need
not contain detailed reasons. A fortiori, the
order would be bad in law if the reason
given turns out to be ex facie incorrect."

33. Further, Hon'ble the Supreme
Court of India has provided guidelines in
case of State of Haryana Vs. Bhajan Lal
reported in 1992 Supp (1) SCC 335 for the
exercise of power under Section 482
Cr.P.C. which is extraordinary power and
used separately in following conditions:-

"102.(1) Where the allegations
made in the first information report or the
902 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused."

(2) where the allegations in the
First
Information
Report
and
other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except
under an order of a Magistrate within the
purview of Section 155(2) of the Code;

(3) where the uncontroverted
allegations made in the FIR or 'complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused;

(4) where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code;

(5) where the allegations made in
the FIR or complaint 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 for proceeding against the accused;

(6) where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party;

(7) where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

34. Further the Apex Court has also
laid down the guidelines where the criminal
proceedings
could
be
interfered
and
quashed in exercise of its power by the
High Court in the following cases:- (i) R.P.
Kapoor Vs. State of Punjab, AIR 1960
S.C. 866, (ii) State of Bihar Vs. P.P.
Sharma, 1992 SCC (Crl.)192, (iii) Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another, (Para-10) 2005
SCC (Cri.) 283 and (iv) Neeharika
Infrastructure Pvt. Ltd. Vs. State of
Maharashtra, AIR 2021 SC 1918.

35. In S.W. Palankattkar & others
Vs. State of Bihar, 2002 (44) ACC 168, it
has been held by the Hon'ble Apex Court
that quashing of the criminal proceedings is
an exception than a rule. The inherent
powers of the High Court itself envisages
three circumstances under which the
inherent jurisdiction may be exercised:-(i)
to give effect an order under the Code, (ii)
to prevent abuse of the process of the court
; (iii) to otherwise secure the ends of
justice. The power of High Court is very
wide but should be exercised very
cautiously to do real and substantial justice
for which the court alone exists.

36. In view of the above said facts
and circumstances of the case, the
investigation done by the police in this case
is without jurisdiction and based on such
invalid investigation report, the cognizance
taken by the learned Magistrate is also
illegal. Secondly, the entire proceeding
before the learned Magistrate is vitiated by
serious incurable defects.

37. Thus, in view of the law laid
down by the Hon'ble Apex Court and the
3 All. Sanjeev Kumar & Ors. Vs. State of U.P. & Anr.
903
facts and circumstances, as narrated above
and from the perusal of the record, the
impugned charge sheet dated 20.11.2017
alongwith
impugned
cognizance/summoning
order
dated
26.02.2019 passed by learned Additional
Chief Judicial Magistrate-Ist, Faizabad in
Case No.551 of 2019 (State Vs. Mohd.
Rashid Khan), arising out of Case Crime
No.0395 of 2017, under Sections 171 H
and 188 of I.P.C., Police Station Cantt.,
District Faizabad as well as the entire
criminal proceedings in pursuance thereof
are against the spirit and directions issued
by the Hon'ble Apex Court and are liable to
be set aside.

38. Accordingly, the impugned charge
sheet
dated
20.11.2017
alongwith
impugned cognizance/summoning order
dated
26.02.2019
passed
by
learned
Additional Chief Judicial Magistrate-Ist,
Faizabad in Case No.551 of 2019 (State Vs.
Mohd. Rashid Khan), arising out of Case
Crime No.0395 of 2017, under Sections
171 H and 188 of I.P.C., Police Station
Cantt., District Faizabad as well as the
entire criminal proceedings in pursuance
thereof are hereby quashed.

39. For the reasons discussed above,
the instant application under Section 482
Cr.P.C. is allowed in respect of the instant
applicant.

40. Learned Senior Registrar of this
Court is directed to transmit a copy of this
order to the trial court concerned for its
necessary compliance.
----------
(2024) 3 ILRA 903
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2024

BEFORE
THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 1958 of 2024

Sanjeev Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Aman Kumar Srivastava

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 311 - Against
rejection of summoning order - Validity of
- Impugned order records that incident
occurred
on
06.04.2006,
final
report
submitted
on
20.06.2006,
thereafter,
protest petition filed by complainant on
27.07.2007,
allowed,
and
applicants
summoned to face trial - During trial, five
prosecution
witnesses
examined,
but
Investigating
Officer not examined
-
Application u/s 311 Cr.P.C. moved by
applicants seeking his examination as
witness - Rejected - Held, accused moved
application u/s 311 Cr.P.C. at stage of
final
arguments
seeking
to
summon
Investigating Officer, who belongs to
prosecution - Prosecution, however, chose
not to examine him, and accused, having
led defence evidence, also did not opt to
summon
him
as
defence
witness
-
Application, filed belatedly on ground that
officer submitted final report, is untenable
as submission of final report is not in
dispute, and no necessity arises for his
examination to prove this fact - Apart
from bald St.ment that examination of
Investigating Officer would serve interest
of justice, no reasons shown to establish
its necessity for just decision of case -
Application lacks merit, rejected. (Para 3,
4, 17,18)
Application rejected. (E-13)

List of Cases cited:

1. Manu Devi Vs St. of Raj. & Anr: (2019) 6 SCC
203