# Moti Lal & Ors v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Application U/S 482 No. 19772 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-lal-ors-v-state-of-u-p-anr-47829
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 498-A - Dowry Prohibition
Act,1961 - Section 3/4 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power, Section 204(2) - No
summons or warrant shall be issued
against the accused under sub-section (1)
until a list of the prosecution witnesses
has been filed - mere non-compliance of
the provisions of Section 204(2) Cr.P.C.
would not vitiate further proceedings
unless and until prejudice is caused or
likely to be caused by not following the
provisions. (Para -11,21)

Applicants summoned under Section 204(1)
Cr.P.C. - summons issued without filing list of
prosecution witnesses by opposite party no.2
(complainant) - trial of case at initial stage - till
date applicants could not appear before court -
pursuant to summoning order passed against
them - if list of prosecution witnesses would be
provided by opposite party no.2 (complainant) -
on their appearance before court - it cannot be
said, it would cause prejudice to them. (Para -
10,22 )

(C) Words and phrases - word 'may' or
'shall' - mere use of word "may" or "shall"
is not conclusive - it has to be decided
according to the object and scheme of the
Act and the contest and back ground
against
which
the
word
has
been
used.(Para - 15)

HELD:-By non filing the list of witnesses by
opposite party no.2 does not cause any
prejudice to the applicants. Therefore, on the
basis of non-compliance of Section 204 (2)
Cr.P.C. neither proceedings pending against the
applicants can be vitiated nor summoning order
can be quashed. (Para -23)
388 INDIAN LAW REPORTS ALLAHABAD SERIES
Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

11 All. Moti Lal & Ors. Vs. State of U.P. & Anr.
387
Court is of the opinion that if the cheque
was stolen, the applicant should have given
information for the same to the Bank and
also lodged an FIR regarding loss of the
check. However, there is nothing on record
to show that the cheque was stolen and the
information regarding missing of cheque
was also not given to the bank. However,
after nearly one year, on 18.03.2022, when
opposite party no.2 came to know about the
said complaint under Section 138 of N.I.
Act, he sent a letter to the bank regarding
missing of check book, but neither the
details of check has been mentioned nor any
complaint has been made regarding the
same earlier. All the submissions made by
learned counsel for the applicant is disputed
questions of fact. Therefore, when the facts
have to be established by way of evidence,
this Court while exercising the powers under
section 482 of Cr.P.C., cannot interfere with
such proceedings. Hence, no grounds are
made out for quashing of the proceedings
under section 138 of the Negotiable
Instruments Act.

18. On the basis of discussions made
herein above, this Court finds that there is
no illegality or infirmity in the summoning
order dated 31.03.2021 passed by the
concerned court below. Therefore, no
interference is required at this stage.

19. In view of the aforesaid, the
application is, accordingly, dismissed.
----------
(2022) 11 ILRA 387
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 19772 of 2022
Moti Lal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ratnesh Kumar Jaiswal

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 498-A - Dowry Prohibition
Act,1961 - Section 3/4 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power, Section 204(2) - No
summons or warrant shall be issued
against the accused under sub-section (1)
until a list of the prosecution witnesses
has been filed - mere non-compliance of
the provisions of Section 204(2) Cr.P.C.
would not vitiate further proceedings
unless and until prejudice is caused or
likely to be caused by not following the
provisions. (Para -11,21)

Applicants summoned under Section 204(1)
Cr.P.C. - summons issued without filing list of
prosecution witnesses by opposite party no.2
(complainant) - trial of case at initial stage - till
date applicants could not appear before court -
pursuant to summoning order passed against
them - if list of prosecution witnesses would be
provided by opposite party no.2 (complainant) -
on their appearance before court - it cannot be
said, it would cause prejudice to them. (Para -
10,22 )

(C) Words and phrases - word 'may' or
'shall' - mere use of word "may" or "shall"
is not conclusive - it has to be decided
according to the object and scheme of the
Act and the contest and back ground
against
which
the
word
has
been
used.(Para - 15)

HELD:-By non filing the list of witnesses by
opposite party no.2 does not cause any
prejudice to the applicants. Therefore, on the
basis of non-compliance of Section 204 (2)
Cr.P.C. neither proceedings pending against the
applicants can be vitiated nor summoning order
can be quashed. (Para -23)
388 INDIAN LAW REPORTS ALLAHABAD SERIES
Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. Bachanan Devi & anr. Vs Nagar Nigam,
Gorakhpur & anr. , 2008 (12) SCC 372

2. Dilip Kumar Basu Vs St. of W.B. & ors. , 2015
(8) SCC 744

3. Rosy & anr. Vs St. of Kerela, 2000 (2) SCC
230

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Ratnesh Kumar
Jaiswal,
learned
counsel
for
the
applicants and Dr. S.B.Maurya, learned
AGA-I, for the State.

2. The instant application has been
moved on behalf of the applicants with the
prayer to quash the entire criminal
proceedings of Complaint Case No. 4 of
2019, under Section 498-A IPC and Section
3/4 Dowry Prohibition Act, pending in the
court of Additional Civil Judge (Junior
Division) Court No.5, Mirzapur as well as
summoning order dated 30.9.2021.

3. The brief facts of the case for the
purposes of present application are that
opposite party no.2 is the wife of applicant
no.3 and applicant no.1 is her father-in-law
while applicant no.2 is her cousin father-inlaw. Opposite party no.2 moved an
application under Section 156(3) Cr.P.C.
against the applicants on 11.10.2018 which
was treated by the court below as a
criminal complaint and after recording the
statement of opposite party no.2 under
Section 200 Cr.P.C. and her witnesses
under Section 202 Cr.P.C. summons were
issued against the applicants on 30.9.2021
under Section 498-A IPC and Section 3/4
Dowry Prohibition Act.

4. Learned counsel for the applicants
submitted that he is pressing the instant
application on the sole ground that without
compliance of mandatory provisions of
Section 204 (2) Cr.P.C. summons were
issued against the applicants, therefore,
summoning order dated 30.9.2021 is bad.

5. He draws the attention of the Court
on the order sheet of the case which is
annexed as Annexure-5 to the affidavit filed
in support of the present application and
submitted that the summoning order against
the applicants was passed on 30.9.2021 and
a week time was given to opposite party
no.2 to provide the list of her witnesses. He
further submitted that the order sheet dated
27.10.2021 shows that 26.11.2021 was the
next date fixed and it was asked to opposite
party no.2 to do pairvi, i.e., to provide the
list of her witnesses and similar order was
passed on 26.11.2021 and thereafter order
sheet dated 16.12.2021, 14.2.2022 and
5.4.2022 shows that opposite party no.2 did
not do any pairvi in this regard but in spite
of that summons were issued and on
5.4.2022 bailable warrants were also issued
against the applicants.

6. Learned counsel for the applicants
next submitted that as per Section 204 (2)
Cr.P.C. no summons or warrants shall be
issued against the accused under section
204(1) Cr.P.C. until a list of prosecution
witnesses has been filed and, therefore, he
submitted that provisions of Section 204(2)
Cr.P.C. is mandatory and no summons
could be issued to applicants unless
opposite party no.2 filed the list of her
witnesses
and,
therefore,
the
entire
proceedings as well as summoning order
passed against the applicants is bad.

7. Per contra, learned AGA submitted
that there is no illegality in the summoning
11 All. Moti Lal & Ors. Vs. State of U.P. & Anr.
389
order issued against the applicants as
provisions of Section 204 (2) Cr.P.C. is
directory in nature and if the court below
without
complying
the
same
issued
summons to the accused persons, then it
does not vitiate the proceedings. He further
submitted that the list of witnesses at any
time can be provided by opposite party
no.2, the complainant,.

8. Learned AGA further submitted
that applicants cannot said that due to non
providing the list of witnesses by opposite
party no.2 great prejudice would cause to
them and, therefore, the instant application
is liable to be dismissed.

9. I have heard learned counsel for
both the parties and perused the record of
the case.

10. Admittedly, applicants were
summoned under Section 204(1) Cr.P.C.,
under Section 498-A IPC and Section 3/4
Dowry Prohibition Act although, it appears
that summons were issued to them without
filing the list of prosecution witnesses by
opposite party no.2, the complainant.
Therefore, the question arises whether on
this ground proceedings pending against
the
applicants
can
be
vitiated
and
summoning order would become illegal.

11. Section 204 Cr.P.C. deals with the
issue of process and runs as follows:

"(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
sub-section (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 subsection (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."

12. As per Section 204 (2) Cr.P.C.
unless a list of prosecution witnesses has
been filed, no summons or warrants shall
be issued against the accused under Section
204 (1) Cr.P.C.

13. Although, in Section 204 (2)
Cr.P.C. the word"shall" is used but it does
not mean that whenever there is a
word"shall" has been used under any Act in
respect of a provision then the provision
will be mandatory one.

14. The Apex Court in the case of
Bachanan Devi and another Vs. Nagar
Nigam, Gorakhpur and another reported
in 2008 (12) SCC 372 observed as:
390 INDIAN LAW REPORTS ALLAHABAD SERIES

"14. ".....Mere use of word 'may'
or 'shall' is not conclusive. The question
whether a particular provision of a statute
is directory or mandatory cannot be
resolved by laying down any general rule of
universal application. Such controversy has
to be decided by ascertaining the intention
of the Legislature and not by looking at the
language in which the provision is clothed.
And for finding out the legislative intent,
the Court must examine the scheme of the
Act, purpose and object underlying the
provision, consequences likely to ensue or
inconvenience likely to result if the
provision is read one way or the other and
many more considerations relevant to the
issue."

15. The Apex Court in the case of
Dilip Kumar Basu Vs. State of W.B. and
others reported in 2015 (8) SCC 744
again observed that mere use of word
"may" or "shall" is not conclusive and it
has to be decided according to the object
and scheme of the Act and the contest and
back ground against which the word has
been used.

16. Therefore, from the above
judgments of the Apex Court, it is apparent
that on the basis of mere word "may" or
"shall", it cannot be conclusively held that
"may" means directory and "shall" denotes
mandatory provision rather it depends upon
various factors, namely, object and scheme
of the Act, the context and background
against which the word "may" and "shall"
has used and purpose and advantageous
sought to be achieved by using these
words.

17. No doubt, in Section 204(2)
Cr.P.C. the word "shall" has been used by
legislature but whether word 'shall' used in
section 204(2) Cr.P.C. is mandatory or
directory it can be decided only after
considering the legislative intent coupled
with the fact that whether any prejudice
was caused to the accused by its violation.
If any prejudice can be caused to accused
by violation of section 204(2) Cr.P.C. then
the provision is mandatory.

18. The legislative intent behind the
provision of section 204(2) Cr.P.C. is only
to provide the list of witnesses to the
accused so as he can effectively defend
himself during trial and this requirement
can
very
well
be
fulfilled
by
the
complainant at the time of appearance of
accused before the trial court pursuant to
the summons issued to him. Therefore,
from the legislative intent provision of
Section 204(2) Cr.P.C. appears to be non-
mandatory.

19. Further, as complainant can
provide the list of the witnesses to the
accused at the time of his appearance
before the trial court, therefore, it can not
be said that non-compliance of the
provisions of Section 204(2) Cr.P.C. causes
prejudice to him as after obtaining the list
of witnesses from complainant accused can
effectively defend himself during trial.
Therefore, from this angle too provision of
Section 204(2) Cr.P.C. appears to be
directory in nature.

20. The Apex Court in the case of
Rosy and another Vs. State of Kerela,
reported in 2000 (2) SCC 230 in para-20
deduced certain principles with regard to
Sections 200, 202 and 204 Cr.P.C. as under:

"20. Hence, what emerges from
the above discussion is :

I.
(a)
Under
Section
200
Magistrate
has
jurisdiction
to
take
cognizance of an offence oa the complaint
11 All. Moti Lal & Ors. Vs. State of U.P. & Anr.
391
after examining upon oath the complainant
and the witnesses present;

(b) When the complaint is made
in writing by a public servant acting or
purporting to act in discharge of his official
duties, the Magistrate need not examine the
complainant and the witnesses.

(c) In such case Court may issue
process or dismiss the complaint.

II. (a) The Magistrate instead of
following the procedure stated above may,
if he thinks fit, postpone the issue of
process and hold inquiry for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the person
ac-cused. Such inquiry can be held by him
or by the police officer or by other person
authorised by him.

(b) However, where it appears to
the Magistrate that the offence complained
of is triable exclusively by the court of
Sessions, the direction of investigation by
the police officer is not permissible and he
is required to hold inquiry by himself.
During that inquiry he may decide to
examine the witnesses on oath. At that
stage, proviso further gives mandatory
directions that he shall call upon the
complainant to produce all his witnesses
and examine them on oath. The reason
obviously is that in a private complaint,
which is required to be committed to the
Sessions Court for trial, it would safeguard
the interest of the accused and he would not
be taken by surprise at the time of trial and
it would reveal the version of the witnesses
whose list is required to be filed by
complainant under Section 204 (2) before
issuance of the process,

(c) The irregularity or noncompliance thereof would not vitiate the
further proceeding in all cases. A person
complaining of such irregularity should
raise objection at the earliest stage and he
should point out how prejudice is caused or
is likely to be caused by not following the
proviso. if he fails to raise such objection at
the earliest stage. he is precluded from
raising such objection later."

21. From the perusal of the above
judgment of the Apex Court it is
undoubtedly
clear
that
mere
noncompliance of the provisions of Section
204(2) Cr.P.C. would not vitiate further
proceedings unless and until prejudice is
caused or likely to be caused by not
following the provisions.

22. Admittedly, the trial of the case is
at initial stage and even till date applicants
could
not
appear
before
the
court
concerned pursuant to the summoning
order passed against them and therefore, if
list of prosecution witnesses would be
provided by opposite party no.2, the
complainant, on their appearance before the
court concerned then from any corner it
cannot be said, it would cause prejudice to
them.

23. As already observed, provision of
Section 204(2) Cr.P.C. is directory in nature
and by non filing the list of witnesses by
opposite party no.2 does not cause any
prejudice to the applicants, therefore, on
the basis of non-compliance of Section 204
(2) Cr.P.C. neither proceedings pending
against the applicants can be vitiated nor
summoning order can be quashed.

24. A Single Bench of this Court in
Criminal Revision No. 2379 of 2018 in the
case of Surendra Kumar Tiwari Vs. State
of U.P. and another, decided on 10.8.2018
also discussed the issue in detail and in
paragraph-9 observed as under:

"9. This court finds itself fully in
agreement with the view taken by the
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Bombay
High
Court
in
the
abovementioned Pramila Mahesh Shah's case in
respect of the provision of Section 204 (2)
and (3), that these are the provisions which
are directory in nature and that the court
would have to see whether breach of these
provisions would cause any prejudice,
which is required to be adjudged on the
basis of the stage of proceedings in a
particular case. At the initial stage if it is
found that the accused has been summoned
without providing him a copy of complaint
and list of witnesses being relied upon by
the complainant, the same can be directed
to be provided to him within a reasonable
time by the complainant as soon as the
accused appears before court and that
merely because the list of witnesses and a
copy of complaint have not been provided
as mentioned in the above provisions would
by itself not vitiate the proceedings
depending
upon
the
stage
of
the
proceedings................... "

25. Therefore, from the above
discussions, I find no merit in the argument
advanced by learned counsel for the
applicants and the instant application is,
accordingly, dismissed.

26. However, it would be appropriate
to direct the trial court to provide a list of
witnesses within a period of four weeks
from the date of passing this order so as to
applicants may contest the matter on
merits.
----------
(2022) 11 ILRA 392
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2022 &
13.10.2022

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.
Application U/S 482 No. 23383 of 2022

Amit Kumar Yadav & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ashwani Kumar Mishra, Sri Swatantra
Kumar Pandey

Counsel for the Opposite Parties:
G.A., Sri Gyan Prakash Dwivedi

(A) Criminal Law - Indian Penal Code, 1860
- Sections 498-A & 323 - Dowry Prohibition
Act,1961 - Section3/4 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent
power
,
matrimonial
dispute
between the husband and wife should be a
quashed when the parties have resolved
their entire dispute amongst themself
through compromise - proceedings relating
to matrimonial dispute can be quashed in
exercise of power under Section-482 Cr.P.C.
(Para -12 )

Matrimonial dispute between husband and wife
- charge sheet - quashing of - compromise -
hence application u/s 482 Cr.P.C..

HELD:-Parties reached/arrived at compromise/
settlement. Conviction of opposite party remote
and bleak. Continuation of the criminal proceeding
despite settlement and compromise would amount
to abuse of process of law.(Para - 14,15)

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

List of Cases cited:-

1. B.S. Joshi & ors. Vs St. of Har. & anr. , 2003
in Appeal (crl.) No.383 of 2003

2. Dr. Mohd. Ibrahim & ors. Vs St. of U.P. &
ors., (2022) Law Suit (Alld) 104

3. Gian Singh Vs St. of Punj. & anr., (2012) 10
SCC 303

4. Narinder Singh & ors. Vs St. of Punj. & ors.,
(2014) 6 SCC 466