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

- **Citation:** (2024) 1 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-16
- **Case number:** Application U/S 482. No. 10364 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-kumar-anr-v-state-of-u-p-anr-51392
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 120-B - Scheduled Caste
and
Scheduled
Tribe
(Prevention
of
Atrocities) Act, 1989 - Section 3(2) (v) -
Opposite party no.2 lodged FIR against four
persons, including applicant no.1 (excluding
applicant no.2), alleging that her daughter killed
by accused by hanging her from tree while she
& anr. girl returning from fields - After
investigation, charge sheet filed against coaccused persons, noting that investigation was
continuing - Subsequently, second charge sheet
submitted against same co-accused, stating that
involvement of other co-accused could not be
established during investigation - By impugned
order, trial court took cognizance of offences
under aforesaid Sections against applicants
along with co-accused named in charge sheet -
St.ments of other girl who accompanied
deceased at time of incident under Sections 161
and 164 Cr.P.C. implicating applicants ignored
by Investigating Officer - Court held that plea of
false implication of applicant's family cannot be
examined at this stage and shall be decided by
trial court after giving opportunity to parties to
lead their evidence. (Para 4, 5, 6, 15)

Application Dismissed. (E-13)

List of Cases cited:

## Text

910 INDIAN LAW REPORTS ALLAHABAD SERIES
case of cognizable offence under the
sections, in which process has been issued
by the court competent against her.

18. In this conspectus, as above, I am
of the considered opinion, that justifiable
ground is made to allow the instant
application in part in exercise of inherent
power under Section 482 Cr.P.C. to prevent
the abuse of process of court and to secure
the ends of justice, so far as it relates to the
applicant no.4 (sister-in-law).

19. Accordingly, instant application is
partly allowed and impugned summoning
order dated 14.9.2021 is hereby quashed, in
part, so far as it relates to the applicant no.4
Priya Kushwaha (sister-in-law).

20. So far as remaining applicants are
concerned, they will face trial in pursuance
of the order impugned dated 14.9.2021.

21. It is made clear that any
observations made by the Court, while
deciding the instant application in the order
of the date, shall not affect the merits of the
case which will be decided on its own
merits against the remaining applicants.
----------
(2024) 1 ILRA 910
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 10364 of 2023

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

Counsel for the Applicants:
Anil Kumar Awasthi
Counsel for the Opposite Parties:
G.A., Ankit Tripathi. Bhupendra Singh Bisht

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 120-B - Scheduled Caste
and
Scheduled
Tribe
(Prevention
of
Atrocities) Act, 1989 - Section 3(2) (v) -
Opposite party no.2 lodged FIR against four
persons, including applicant no.1 (excluding
applicant no.2), alleging that her daughter killed
by accused by hanging her from tree while she
& anr. girl returning from fields - After
investigation, charge sheet filed against coaccused persons, noting that investigation was
continuing - Subsequently, second charge sheet
submitted against same co-accused, stating that
involvement of other co-accused could not be
established during investigation - By impugned
order, trial court took cognizance of offences
under aforesaid Sections against applicants
along with co-accused named in charge sheet -
St.ments of other girl who accompanied
deceased at time of incident under Sections 161
and 164 Cr.P.C. implicating applicants ignored
by Investigating Officer - Court held that plea of
false implication of applicant's family cannot be
examined at this stage and shall be decided by
trial court after giving opportunity to parties to
lead their evidence. (Para 4, 5, 6, 15)

Application Dismissed. (E-13)

List of Cases cited:

1. Nahar Singh Vs St. of U.P., (2022) 5 SCC 295
: 2022 SCC OnLine SC 332, (Paras 29, 30)

2. Dharam Pal Vs St. of Har., (2014) 3 SCC 306,
(Paras 34, 35)

3. C.B.I. Vs Aryan Singh, 2023 SCC Online SC
379

4. Manik B Vs Kadapala Sreyes Reddy & ors. SLP
(Crl.) No. 2924 of 2023 decided on 07.08.2023,
(Paras 6 to 8)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Anil Kumar Awasthi, the
learned counsel for the applicants, Sri
1 All. Mohit Kumar & Anr. Vs. State of U.P. & Anr.
911
Anurag Verma, the learned A.G.A.-I
appearing on behalf of the State and Sri
Ankit Tripathi, the learned counsel for the
informant/opposite party no.2.

2. In compliance of the order dated
20.12.2023 Sri Udai Raj Singh, Circle
Officer,
Biswan,
District
Sitapur/Investigating Officer of the case is
present in person. He has filed a
supplementary counter affidavit annexing
therewith copy of the relevant extracts of
general diary. The State had already filed a
counter affidavit and the applicant has filed
a rejoinder affidavit in response to the
same.

3. By means of the instant application
under Section 482 Cr.P.C. the applicants
have
challenged
the
order
dated
21.09.2023, passed by the learned Special
Judge (POCSO Act)/Additional Sessions
Judge, Court no.14, Sitapur in Case Crime
No.215 of 2023: State Vs. Abhijeet Mishra
@ Chotakke, under Sections 302, 120-B
I.P.C. and Section 3 (2) 5 SC/ST Act,
Police Station Mishrikh, District Sitapur,
whereby the learned trial court has taken
cognizance of offences under Section 302,
376 I.P.C. and Section 3 (2) (v) of SC/ST
Act and Section 3/4 POCSO Act by coaccused Abhijit Mishra and commission of
offences under Sections 302 & 120-B
I.P.C. and Section 3 (2) 5 SC/ST Act by
the
co-accused
Ashok
Mishra
and
cognizance of Sections 302 & 120-B I.P.C.
and Section 3 (2) 5 SC/ST Act has been
taken against the applicants also although
their names were not included in the charge
sheet.

4. Briefly stated the facts of the case
are that the opposite party no.2 had lodged
an F.I.R. dated 26.05.2023 against four
persons including the applicant no.1 and
not including the applicant no.2 stating that
her daughter had gone along with another
girl to a fields to attend the call of nature
and while she was returning, the accused
persons killed her by hanging her from a
tree. After investigation a charge-sheet was
submitted on 25.07.2023 against the coaccused Ashok Mishra and Abhijit Mishra
only and it was mentioned in it that the
investigation
was
still
continuing.
Thereafter, another charge sheet was
submitted on 17.09.2023 against those coaccused persons only and it was stated in
the second charge sheet that the implication
of the other co-accused persons could not
be established during investigation.

5. By means of the impugned order
dated 21.09.2023, the learned trial court has
taken
cognizance
the
of
offences
committed by the two co-accused persons
against whom a charge sheet has been
submitted and at the same time the
cognizance of the offences under Sections
302 & 120-B I.P.C. & Section 3 (2) 5
SC/ST Act committed by the applicants has
also been taken.

6. The learned trial court has
mentioned in the impugned order that the
other girl who was accompanying the
deceased at the time of the incident had
implicated the applicants in her statement
recorded by the Investigating Officer under
161 Cr.P.C., as also in her statement
recorded by the Magistrate under Section
164 Cr.P.C. and the Investigating Officer
has
ignored
the
aforesaid
material
evidence.

7. The learned trial court has placed
reliance on a judgment of Hon'ble the
Supreme Court in the case of Nahar Singh
Vs. State of U.P., (2022) 5 SCC 295,
wherein the Hon'ble Supreme Court has
912 INDIAN LAW REPORTS ALLAHABAD SERIES
held that the trial court may summon any
person, even if he is not named in the
police report, in case it appears that on the
basis of material available on record, the
involvement of that person in commission
of offence is prima facie established.

8. In Dharam Pal v. State of
Haryana,
(2014)
3
SCC
306,
a
Constitution
Bench
of
the
Hon'ble
Supreme Court held that

"34. The view expressed in
Kishun Singh versus State of Bihar, (1993
)2 SCC 16, in our view, is more acceptable
since, as has been held by this Court in the
cases
referred
to
hereinbefore,
the
Magistrate has ample powers to disagree
with the final report that may be filed by
the police authorities under Section 173(2)
of the Code and to proceed against the
accused persons dehors the police report,
which power the Sessions Court does not
have till the Section 319 stage is reached.
The upshot of the said situation would be
that even though the Magistrate had
powers to disagree with the police report
filed under Section 173(2) of the Code, he
was helpless in taking recourse to such a
course of action while the Sessions Judge
was also unable to proceed against any
person, other than the accused sent up for
trial, till such time evidence had been
adduced and the witnesses had been crossexamined on behalf of the accused.

35. In our view, the Magistrate
has a role to play while committing the
case to the Court of Session upon taking
cognizance on the police report submitted
before him under Section 173(2) CrPC. In
the event the Magistrate disagrees with the
police report, he has two choices. He may
act on the basis of a protest petition that
may be filed, or he may, while disagreeing
with the police report, issue process and
summon the accused. Thereafter, if on
being satisfied that a case had been made
out to proceed against the persons named
in column 2 of the report, proceed to try the
said persons or if he was satisfied that a
case had been made out which was triable
by the Court of Session, he may commit the
case to the Court of Session to proceed
further in the matter."

9. The Constitution Bench Judgment
in the case of Dharam Pal (Supra) has been
followed in Nahar Singh v. State of U.P.,
(2022) 5 SCC 295 : 2022 SCC OnLine SC
332, wherein the Hon'ble Supreme Court
held that: -

"29. In Raghubans Dubey v. State
of Bihar, AIR 1967 SC 1167, SWIL Ltd.
v. State of Delhi, (2001) 6 SCC 670
and Dharam Pal v. State of Haryana,
(2014) 3 SCC 306, the power or
jurisdiction of the court or Magistrate
taking cognizance of an offence on the
basis of a police report to summon an
accused not named in the police report,
before commitment has been analysed. The
uniform view on this point, irrespective of
the fact as to whether cognizance is taken
by the Magistrate under Section 190 of the
Code or jurisdiction exercised by the Court
of Session under Section 193 thereof is that
the aforesaid judicial authorities would not
have to wait till the case reaches the stage
when jurisdiction under Section 319 of the
Code is capable of being exercised for
summoning a person as accused but not
named as such in police report. We have
already expressed our opinion that such
jurisdiction to issue summons can be
exercised even in respect of a person whose
name may not feature at all in the police
report, whether as accused or in Column
(2) thereof if the Magistrate is satisfied that
1 All. Mohit Kumar & Anr. Vs. State of U.P. & Anr.
913
there are materials on record which would
reveal prima facie his involvement in the
offence. None of the authorities limit or
restrict the power or jurisdiction of the
Magistrate or Court of Session in
summoning an accused upon taking
cognizance, whose name may not feature
in the FIR or police report."

10. The Hon'ble Supreme Court
further held that: -

"30... For summoning persons
upon taking cognizance of an offence, the
Magistrate has to examine the materials
available before him for coming to the
conclusion that apart from those sent up
by the police some other persons are
involved in the offence. These materials
need not remain confined to the police
report, charge-sheet or the FIR. A
statement made under Section 164 of the
Code could also be considered for such
purpose."

11. Therefore, I am of the
considered
view
that
the
learned
Magistrate
has
not
committed
any
illegality in summoning the applicants to
face the trial on the basis of the
statements of a witness recorded under
Section 161 and 164 Cr.P.C.

12. The learned counsel for the
applicant has submitted that the entire
family of the applicant has been falsely
implicated in the present case due to
animosity between the parties.

13. In C.B.I. v. Aryan Singh, 2023
SCC Online SC 379, the Hon'ble
Supreme Court has held that while
exercising the powers under Section 482
Cr.P.C., the Court is not required to
conduct a mini trial. It does not require the
prosecution/investigating agency to prove
the allegations. While exercising the
powers under Section 482 of the CrPC the
Court has very limited jurisdiction and is
required
to
consider
"whether
any
sufficient material available to proceed
further against the accused for which the
accused is required to be tried or not".

14. In Manik B Vs. Kadapala
Sreyes Reddy and others, SLP (Crl.) No.
2924 of 2023 decided on 07.08.2023, the
Hon'ble Supreme Court has held that: -

"6. Whether the testimony of the
witnesses is trustworthy or not has to be
found out from the examination-in-chief
and the cross-examination of the witnesses
when they stand in the box at the stage of
such trial.

7. Such an exercise, in our
considered view, is not permissible while
exercising the jurisdiction under Section
482 Cr.P.C.

8. The scope of interference,
while quashing the proceedings under
Section 482 Cr.P.C. and that too for a
serious offence like Section 302 of Indian
Penal Code is very limited. The Court
would exercise its power to quash the
proceedings only if it finds that taking the
case at its face value, no case is made out
at all."

15. Therefore, while deciding the
application under Section 482 Cr.P.C., this
Court cannot examine the contention of the
learned Counsel for the applicant that the
entire family of the applicant has been
implicated falsely and that will be decided
by the trial Court after the parties have
availed the opportunity to lead their
respective evidence.
914 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In view of the aforesaid facts and
circumstances of the case, I find no merit in
the application and the same is accordingly
dismissed.

17. It is made clear that the learned
trial court shall proceed to decide the case
expeditiously in accordance with law
without
being
influenced
by
any
observations made in this order.
----------
(2024) 1 ILRA 914
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 10730 of 2023

Prashant Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Lalta Prasad Misra, Prafulla Tiwari

Counsel for the Opposite Parties:
G.A.,
Aditya
Vikram
Singh,
Nadeem
Murtaza

Criminal Law - Companies Act, 2013 -
Sections 56(1), 179 - Indian Penal Code,
1860 - Sections 409 & 420 - Code of
Criminal Procedure, 1973 - Section 482 -
Applicant
challenged
charge-sheet
and
cognizance order for offences under Sections
409, 420 I.P.C., alleging unauthorized transfer of
98% shares of subsidiary company (JBTCPL)
held by PPTPL. Court held: (1) Transfer without
Board resolution under Section 179 or transfer
deed under Section 56(1) of Companies Act
violated statutory requirements, prima facie
constituting criminal breach of trust and
cheating (Rathish Babu Unnikrishnan Vs St. of
NCT of Delhi, 2022 SCC OnLine SC 513). (2)
Applicant's claim of adjustment for prior
proprietorship interest was a factual dispute for
trial,
not
quashment
under
Section
482
(Harshendra Kumar D. Vs Rebatilata Koley,
(2011) 3 SCC 351). (3) Dispute not purely civil;
allegations of forgery and unauthorized transfer
as company director established cognizable
offences (Pratibha Vs Rameshwari Devi, (2007)
12 SCC 369). (4) Delay in FIR (three years) did
not
vitiate
proceedings,
as
investigation
substantiated allegations (Mahesh Chaudhary Vs
St. of Raj., (2009) 4 SCC 439). (5) No material
beyond
suspicion
disproved
allegations;
quashing
unwarranted.
Charge-sheet
and
cognizance order upheld; application dismissed.
(Paras 18-40)

Application Dismissed.

List of Cases cited:

1. Rathish Babu Unnikrishnan Vs St. of NCT of
Delhi, 2022 SCC OnLine SC 513 (Para 23)

2. Harshendra Kumar D. Vs Rebatilata Koley,
(2011) 3 SCC 351 (Para 31)

3. Anita Malhotra Vs Apparel Export Promotion
Council, (2012) 1 SCC 520 (Para 32)

4. Rajiv Thapar Vs Madan Lal Kapoor, (2013) 3
SCC 330 (Para 34)

5. Anand Kumar Mohatta Vs St. (NCT of Delhi),
(2019) 11 SCC 706 (Para 36)

6. Pratibha Vs Rameshwari Devi, (2007) 12 SCC
369 (Para 35)

7. Mahesh Chaudhary Vs St. of Raj., (2009) 4
SCC 439 (Para 36)

8. Priti Saraf Vs St. (NCT of Delhi), (2021) 16
SCC 142 (Para 37)

9. St. of Har. Vs Bhajan Lal, 1992 Supp (1) SCC
335 (Para 18)

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Dr. L. P. Mishra, and Sri
Prafulla Tiwari Advocates, the learned
counsel for the applicant, Smt. Parul Kant,