# Mohit & Anr v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-27
- **Case number:** Application U/S 482 No. 4496 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-anr-v-state-of-u-p-anr-45958
- **Pages:** 4

## Headnote

Criminal Law -Code of Criminal Procedure,
1973- Section 482- Present applicants are
named accused persons - On the basis of
the statement, recorded, under Section 161
of Cr.P.C., cognizance was taken for which
there was, prima facie, sufficient evidence
on
record.
Plea
of
alibi
and
other
arguments regarding facts are to be seen
by the Trial court. This Court, in exercise of
inherent power, under Section 482 of
Cr.P.C., is not expected to embark upon
factual matrix because the same is to be
gone into, during course of trial, by the
Trial court.

Only prima facie case on the basis of evidence
collected during investigation has to be seen at
the stage of taking cognizance of the offences
and disputed questions of fact cannot be looked
into by the Court in the exercise of its inherent
power under section 482 of the Cr.Pc.

Criminal Application rejected. (Para 5, 6, 9) (E-3)

Case Law relied upon/ Discussed: -.

## Text

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----------
(2020)09ILR A390
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 4496 of 2020

Mohit & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri A.Z. Khan

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

Criminal Law -Code of Criminal Procedure,
1973- Section 482- Present applicants are
named accused persons - On the basis of
the statement, recorded, under Section 161
of Cr.P.C., cognizance was taken for which
there was, prima facie, sufficient evidence
on
record.
Plea
of
alibi
and
other
arguments regarding facts are to be seen
by the Trial court. This Court, in exercise of
inherent power, under Section 482 of
Cr.P.C., is not expected to embark upon
factual matrix because the same is to be
gone into, during course of trial, by the
Trial court.

Only prima facie case on the basis of evidence
collected during investigation has to be seen at
the stage of taking cognizance of the offences
and disputed questions of fact cannot be looked
into by the Court in the exercise of its inherent
power under section 482 of the Cr.Pc.

Criminal Application rejected. (Para 5, 6, 9) (E-3)

Case Law relied upon/ Discussed: -.

1. St. of A.P Vs Gaurishetty Mahesh, JT 2010 (6)
SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844

2. Hamida Vs Rashid, (2008) 1 SCC 474
9 All. Mohit & Anr. Vs. State of U.P. & Anr.
391
3. Monica Kumar Vs St. of U.P, (2008) 8 SCC 781

4. Popular Muthiah Vs. St., Rep. by Insp. of
Police, (2006) 7 SCC 296

5. Dhanlakshmi Vs R.Prasana Kumar, (1990) Cr
LJ 320 (DB): AIR 1990 SC 494

6. St. of Bih. Vs Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1

7. Amrawati & anr. Vs St. of U.P., 2004 (57)
ALR 290

8. Lal Kamlendra Pratap Singh Vs St. of U.P.,
2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This Application, under Section
482 of Code of Criminal Procedure, 1973,
has been filed by the Applicants, Mohit and
Madan, with a prayer for setting aside
summoning order, dated 19.4.2019, passed
by Additional Sessions Judge, Saharanpur,
in a proceeding related with Case Crime
No.65 of 2017, and, thereby, entire
criminal proceeding, under Sections 147,
148, 452, 506, 436, and 427 of IPC, read
with Section 3(1) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, Police StationBargaon, District-Saharanpur.

2. Learned counsel for applicants
argued that the applicant no.2, Madan, was
not present on the spot of occurrence,
rather, he was present somewhere else for
which there is evidence on record.
Occurrence took place, but, involvement of
the present applicants was not there and
this fact has been averred by each of the
victim, by way of their affidavits, filed
before the Investigating Officer, even then,
chargesheet, for offences, as above, has
been filed and cognizance over it has been
taken by the Trial court. It is an abuse of
process of law. Hence, for avoiding abuse
of process of law, this Application, under
Section 482 of Cr.P.C., has been filed, with
above prayer.

3. Learned AGA, representing State
of U.P., has vehemently opposed this
Application.

4. A short counter affidavit has been
filed by the learned AGA, wherein, there is
mention, in the case diary, that those
affidavits, referred to by learned counsel
for applicants, mentioned and annexed in
the case diary, were obtained through Dak
Pad by the Circle Officer, concerned, and it
shall be acted upon after its verification,
but, there is no mention about their
verification, rather, on the basis of
statements, recorded, under Section 161 of
Cr.P.C.,
chargesheet
has
been
filed,
wherein, cognizance has been taken.

5. First information report reveals that
Case Crime No.65 of 2017 was got
registered at Police Station Bargaon,
District Saharanpur, on 6th May, 2017,
upon a report of Ilam Singh against accused
persons, namely, Pradeep, Raju, Arjun
Pachal, Pankaj, Rejji, Mohit, Madan,
Satvir, Mohan, Mohit, Jasvir and Nitu, for
offences, punishable, under Sections 147,
148, 452, 506, 436 and 427 of IPC, read
with Section 3(1) of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, with accusation that
those named persons, alongwith other
several others, in furtherance of their
common object of their unlawful assembly,
committed this occurrence, wherein, the
accused persons hurled abuses by name of
caste, with intimidation, by firing gun
shots, resulting in damage caused to shops
etc. Present applicants are named accused
persons in this case crime number.
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigation,
included
recording
of
statement, under Section 161 of Cr.P.C,
wherein contentions, made in the first
information report, have been reiterated.
Some affidavits have been filed, but they
were mentioned to be taken on record in
Case Diary, however, they were mentioned
to be acted upon after their verification.
But, lateron, they were not verified, hence,
on the basis of the statement, recorded,
under Section 161 of Cr.P.C., cognizance
was taken for which there was, prima facie,
there was sufficient evidence on record.
Plea of alibi and other arguments regarding
facts are to be seen by the Trial court.

6. Hence, under all above facts and
circumstances, this Court, in exercise of
inherent power, under Section 482 of
Cr.P.C., is not expected to embark upon
factual matrix because the same is to be
gone into, during course of trial, by the
Trial court.

7. Apex Court, in State of Andhra
Pradesh v. Gaurishetty Mahesh, JT 2010
(6) SC 588: (2010) 6 SCALE 767: 2010
Cr. LJ 3844, has propounded that "While
exercising jurisdiction under section 482 of
the Code, the High Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not
or whether on a reasonable apprehension
of it accusation would not be sustained.
That
is
the
function
of
the
trial
Judge/Court".
In
another
subsequent
judgment, in the case of Hamida v.
Rashid, (2008) 1 SCC 474, Hon'ble Apex
Court propounded that "Ends of justice
would be better served if valuable time of
the Court is spent in hearing those appeals
rather than entertaining petitions under
Section 482 at an interlocutory stage which
after filed with some oblique motive in
order
to
circumvent
the
prescribed
procedure, or to delay the trial which
enable to win over the witness or may
disinterested in giving evidence, ultimately
resulting in miscarriage of Justice". In
again yet another judgment, in the case of
Monica Kumar v. State of Uttar
Pradesh, (2008) 8 SCC 781, the Apex
Court
has
propounded
"Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid down
in the section itself." While interpreting this
jurisdiction of High Court Apex Court, in
the case of Popular Muthiah v. State,
Represented by Inspector of Police,
(2006) 7 SCC 296, has propounded "High
Court can exercise jurisdiction suo motu in
the interest of justice. It can do so while
exercising other jurisdictions such as
appellate or revisional jurisdiction. No
formal application for invoking inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters.
It can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".

8. Regarding prevention of abuse of
process of Court, Apex Court, in the case
of Dhanlakshmi v. R.Prasana Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC
494, has propounded "To prevent abuse of
the process of the Court, High Court, in
exercise of its inherent powers under
section 482, could quash the proceedings,
but, there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in the
case of State of Bihar v. Murad Ali
Khan, (1989) Cr LJ 1005: AIR 1989 SC
1, Apex Court propounded "In exercising
jurisdiction under Section 482 High Court
9 All. Rakesh Garg Vs. State of U.P. & Anr.
393
would not embark upon an enquiry whether
the allegations in the complaint are likely
to
be
established
by
evidence
or
not".Meaning thereby, exercise of inherent
jurisdiction under Section 482 Cr.P.C. is
within the limits, propounded as above.

9. In view of what has been discussed
above, this Application, under Section 482 of
Cr.P.C., merits dismissal and it stands
dismissed accordingly. However, all the
questions of fact may be raised before the
Trial court, at appropriate stage, which, if
raised, shall be considered and decided by the
Trial court, in accordance with provisions of
law and precedents on the issue/subject.

10. However, it is directed that if the
applicants 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)09ILR A393
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 13635 of 2020

Rakesh Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Farzana Jamal, Sanjeev Kumar Tyagi

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

Criminal Law - Code of Criminal Procedure,
1973- Section 245 - Rejection of application
for discharge- Till disposal of application u/s
245 Cr.P.C. no additional evidence was there
on the basis of which charge is to be framed
by the trial court. Merely on the basis of
sufficiency of evidence of summoning, there
is summoning. After appearance of accused
evidence u/s 244 Cr.P.C. is to be recorded,
which is to be given by complainant and
there will be an opportunity of crossexamination of witnesses and after this
exercise, stage of framing of charge or
discharge
comes
in
light.
Hence
the
Magistrate was with no additional evidence
till passing of impugned order. Hence this
application was rejected and it was with
reason and as per law laid down by Apex
Court for framing of charge. Meticulous
analysis of facts and evidence is not to be
done at the time of framing of charges as it
may lead prejudice against fair trial- The
evidence is to be seen at the time of framing
of charge. But in the instant case the stage
of framing of charge is not there.

It is only after the stage of Section 244 of the
Cr.Pc that the Magistrate has the necessary
evidence required for framing the Charge and
therefore since in the present case that stage
had not been reached the Magistrate did not
have the additional evidence. Moreover, at the
stage of framing the Charge, it is to be seen
that only a prima facie case is made out and the
court
cannot
appreciate
the
evidence
meticulously at that stage.

Criminal Application rejected. (Para 5) (E-3)