# Nazim & Ors v. State of U.P. & Anr Opp. Parties

- **Citation:** (2023) 4 ILRA 392
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-18
- **Case number:** Application u/s 482 No. 19835 of 2019
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nazim-ors-v-state-of-u-p-anr-opp-parties-49958
- **Pages:** 7

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 147, 323, 324, 504, 506 & 326 -
If an stick is used in causing hurt or
grievous hurt on the ear of a victim -
Section 326 I.P.C would not be attracted -
if such injury would have been caused by
knife, or by other means mentioned in
Section 326 I.P.C - such injury would be
covered
under
Section
326
I.P.C
-
provided there is hundred percent loss of
hearing capacity of the concerned ear ,
Power of taking cognizance - Magistrates
have limited power to add or alter
sections,
considering
case
diary
and
charge-sheet - if left by the I.O. - they can
add or alter sections during charge
framing, but not during cognizance.(Para -
29,32,)
Opposition party lodged
N.C.R
-
against
applicants 2 to 5 - later converted into F.I.R. -
Medical
examination
was
conducted
-
supplementary reports prepared - Evidence
recorded - charge-sheet submitted - both
parties have lodged F.I.R against each other -
during investigation dispute over addition of
Section 326 I.P.C. - opposite party 2 failed to
appear for re-medical examination - conclusion
of trial and Revisional Courts - victim's right ear
drum injury was considered grievous hurt under
Section 320 I.P.C. (Para -3,14,16,19)

HELD:-Victim's right ear stick injury is not a
grievous hurt, as there is no medical report of
permanent hearing loss and is not covered
under Section 326 I.P.C.. Lower court failed to
appreciate facts, medical reports, and law,
leading to incorrect conclusions about grievous
hurt and punishable under Section 326 I.P.C. .
Taking cognizance and summoning accused
applicants under Section 326 I.P.C bad in law.
Revisional court's judgment incorrect.(Para -
30,31,33)

Application u/s 482 Cr.P.C. allowed. (E-7)
4 All. Nazim & Ors. Vs. State of U.P. & Anr.
393
List of Cases cited:

## Text

392 INDIAN LAW REPORTS ALLAHABAD SERIES
corpus is into existence for release hence
this
application
has
also
become
infructuous. Now the only remedy remains
available to the applicant is to challenge the
validity
of
confiscation
proceeding
conducted by the District Magistrate, Etah.

17. On the basis of above discussion
this court is of conclusion that the
impugned order passed by the learned CJM
and learned revisional court is factually and
legally correct. When the impugned vehicle
was under the confiscation proceeding
before the district magistrate Etah, it was
open to the applicant to appear and contest
there.

18. In view of the above judgments
and Section 72 of the UP Excise Act both
the courts at district level were not
competent to entertain and allow the
release application. At present there is no
property remains as subject matter for
decision by the civil court or the High
Court. Hence this application deserves to
be dismissed.

ORDER

This
application
is,
accordingly,
dismissed.
----------
(2023) 4 ILRA 392
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 19835 of 2019

Nazim & Ors. ...Applicants
Versus
State of U.P. & Anr ...Opp. Parties

Counsel for the Applicants:
Sri Devendra Dahma, Sri Sanjay Mishra

Counsel for the Opp. Parties:
G.A., Sri Ravi Prakash Singh

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 147, 323, 324, 504, 506 & 326 -
If an stick is used in causing hurt or
grievous hurt on the ear of a victim -
Section 326 I.P.C would not be attracted -
if such injury would have been caused by
knife, or by other means mentioned in
Section 326 I.P.C - such injury would be
covered
under
Section
326
I.P.C
-
provided there is hundred percent loss of
hearing capacity of the concerned ear ,
Power of taking cognizance - Magistrates
have limited power to add or alter
sections,
considering
case
diary
and
charge-sheet - if left by the I.O. - they can
add or alter sections during charge
framing, but not during cognizance.(Para -
29,32,)
Opposition party lodged
N.C.R
-
against
applicants 2 to 5 - later converted into F.I.R. -
Medical
examination
was
conducted
-
supplementary reports prepared - Evidence
recorded - charge-sheet submitted - both
parties have lodged F.I.R against each other -
during investigation dispute over addition of
Section 326 I.P.C. - opposite party 2 failed to
appear for re-medical examination - conclusion
of trial and Revisional Courts - victim's right ear
drum injury was considered grievous hurt under
Section 320 I.P.C. (Para -3,14,16,19)

HELD:-Victim's right ear stick injury is not a
grievous hurt, as there is no medical report of
permanent hearing loss and is not covered
under Section 326 I.P.C.. Lower court failed to
appreciate facts, medical reports, and law,
leading to incorrect conclusions about grievous
hurt and punishable under Section 326 I.P.C. .
Taking cognizance and summoning accused
applicants under Section 326 I.P.C bad in law.
Revisional court's judgment incorrect.(Para -
30,31,33)

Application u/s 482 Cr.P.C. allowed. (E-7)
4 All. Nazim & Ors. Vs. State of U.P. & Anr.
393
List of Cases cited:

1. Dhanai Mahto & anr. Vs St. of Bihar , 2000
AIR SCW 3966-1

2. Joseph Vs St. of Kerala , 1995 SCC (Cri) 165

3. Phool Chand Yadav Vs St. of U.P. , 2022 (4)
ALJ 56

4. Ram Singh & ors. Vs St. of M.P., Gwalior
Branch , MCRR No 5920 of 2018

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Sanjay Mishra, learned
counsel for the applicant, Sri Pankaj Kumar
Tripathi, learned A.G.A for the State as
none appeared for opposite party no. 2 and
perused the material available on record.

2. This application under Section 482
Cr.P.C has been moved by the applicantaccused persons to quash the order dated
26th July, 2018 passed by A.C.J.M Ist,
Aligarh in Criminal Case no. 1021 of 2018
arising out of Criminal Case No. 222 of
2017 and order dated 16.04.2019 passed by
the learned Sessions Judge, Aligarh in
Criminal Revision No. 331 of 2018 -
Shahnawaz and others Vs. State of U.P.
under Section 147, 323, 324, 504, 506 and
326 I.P.C, Police Station Kotwali City,
District Aligarh, pending in the Court of
A.C.J.M Ist, Aligarh, by which both the
courts below have passed the order against
the applicant and the learned A.C.J.M Ist,
Aligarh took the cognizance under the
aforesaid Sections and the learned Sessions
Judge dismissed the criminal revision
against such order on 16.04.2019.

3. In brief, facts of the case are that
opposite party no. 2 lodged N.C.R No. 58
of 2017, under Sections 323 and 506 I.P.C
on 15.05.2017 at 11:40 p.m. against the
applicant nos. 2 to 5, later on, which was
converted into F.I.R on 26.05.2017 under
Sections 323, 324 and 506 I.P.C as Crime
No. 222 of 2017 against them. The opposite
party No. 2 was medically examined on
16.05.2017 and supplementary medical
report
was
prepared
on
09.06.2017.
Evidences were recorded under Section 161
Cr.P.C and a charge-sheet no. 194 of 2018
dated 29.06.2018 under Sections 147, 323,
324, 326, 504 & 506 I.P.C was submitted
in the Court of A.C.J.M Ist Aligarh, who
took cognizance by the order dated 26th
July, 2018.

4. The petitioner no. 1 was married
with opposite party no. 2 as per Muslim
rites and ritual on 22.04.2014 and she left
her
matrimonial
house
without
any
sufficient
cause
and
started
living
separately with her parents whereupon
applicant no. 1 filed a petition for
restitution of conjugal rights being case no.
873 of 2014 - Naazim Vs. Smt. Rukhsana
in the Court of Principle Judge Family
Court, Aligarh, but opposite party no. 2 did
not appear and the petition was later on
dismissed as withdrawn. The divorce
petition between the petitioner no. 1 and
opposite party no. 2 took place on
13.06.2017 and the petitioner no. 1 was
again married on 11.05.2017 with Allia D/o
Shamshad as per Muslim rites and rituals.

5. It appears that the opposite party
no. 2 got annoyed after hearing the news of
second marriage of the petitioner with Allia
and therefore lodged a false report. The
petitioner no. 1 is the husband of opposite
party no. 2 (as per para 8 of the affidavit,
she was divorced on 13.06.2017). The
petitioner nos. 2 and 3 are Dewar,
petitioner no. 4 is mother-in-law and
petitioner no. 5 is sister-in-law (nanad) of
opposite party no. 2. The petitioner no. 1
394 INDIAN LAW REPORTS ALLAHABAD SERIES
lodged a report against opposite party no. 2,
Ayyub and Kaisar sons of Saeed, Parvez
and Belal sons of Abrar Ahmad on
15.05.2017 in Case Crime No. 207 of 2017
under Sections 147, 148, 307, 452 and 504
I.P.C at P.S Kotwali Nagar, Aligarh. In the
aforesaid incident Sharfaraz petitioner no. 2
sustained
grievous
injury
and
was
medically examined on 15th May, 2017
and an x-ray report was also prepared on
16.05.2017.

6. The J.M Ist, Aligarh, summoned
the accused persons including opposite
party no. 2 by order dated 09.04.2018 as
well as one Sultan for facing trial in the
aforesaid Sections and rejected the final
report no. 13 of 2017 dated 20th
November, 2017. The opposite party no. 2
and other accused persons filed criminal
revision no. 230 of 2018 - Rukhsana and
others Vs. State of U.P and others which
was dismissed on 17.09.2018.

7. Opposite party no. 2 and three
others filed criminal misc. application no.
37751 of 2018 in the High Court,
challenging both the above orders passed
by A.C.J.M. Ist and the Revisional Court
and further proceedings of the aforesaid
case has been stayed vide order dated
22.10.2018.

8. The petitioner preferred criminal
revision no. 331 of 2018 - Shahnawaz Vs.
State of U.P in the Court of Sessions Judge,
Aligarh, challenging the order dated
26.07.2018,
passed
by
the
learned
Magistrate, and the dismissal order passed
by the revisional court / Sessions Judge,
Aligarh, vide order dated 16th April, 2019.
Both the orders are illegal, arbitrary,
without jurisdiction and are the abuse of
process of the court and deserve to be
quashed to secure the ends of justice.

9. The medical and supplementary
report of opposite party no. 2 do not make
out any offence under Section 326 I.P.C,
therefore, the orders passed by the learned
Magistrate and the revisional court are
wholly illegal, arbitrary and are liable to be
quashed.

10. The opposite party no. 2 did not
appear for re-medical examination before
the Medical Board despite the order dated
23.04.2018 of the S.S.P. Aligarh. The
C.M.O, Aligarh by letter dated 04.05.2018
informed the S.S.P. regarding her nonappearance before the medical board for reexamination to ascertain the gravity and
nature of injury sustained by her and lastly
the C.M.O. by letter dated 21.05.2018
informed the S.S.P, Aligarh, that no useful
purpose would be served by re-medical
examination of opposite party no. 2 after a
lapse of more than a year from the date of
sustaining the alleged injury by her. The
District
Magistrate,
by
letter
dated
30.05.2018 forwarded the aforesaid report
of C.M.O to the S.S.P. Aligarh, therefore,
nature of injury sustained by the opposite
party no. 2 does not come within the
purview of grievous injury under Sections
320 I.P.C and therefore, no offence is made
out under Section 326 I.P.C.

11. Otherwise also entire proceeding
initiated
against
the
petitioners
are
malicious and is counterblast to the F.I.R.
and summoning of opposite party nos. 2
and 3 and others on the basis of report
lodged by the applicant no. 1. The
petitioners are peace loving and law
abiding person and have no criminal
history
to
their
credit.
They
are
apprehending their arrest in pursuance of
N.B.Ws issued against them in the present
case, therefore, it is prayed that further
proceedings of the present case lodged by
4 All. Nazim & Ors. Vs. State of U.P. & Anr.
395
the opposite party no. 2 described above
and N.B.Ws be stayed.

12. The opposite party no. 2 has filed
counter affidaivt (though it is not available
on record), denying the contentions and
allegations of the petition, and has said that
the F.I.R lodged by her is true and correct
and it is not a counterblast to the report
lodged by the applicant and has said that a
correct F.I.R has been lodged by the
applicants and the impugned order passed
by A.C.J.M. Ist and the learned Sessions
Judge in revisional capacity are not liable
to be quashed and the proceedings of the
present case is not liable to be quashed.

13. Contrary to that the petitioners
have filed rejoinder affidavit denying the
para-wise contents of the counter affidavit
and have reiterated the facts already
mentioned in the petition. Heard and
perused the record.

14. It transpires that both the parties
have lodged the F.I.R against each other.

15 The F.I.R lodged by the applicant
no. 1 against the opposite party no. 2 and
others for an offence alleged to be
committed on 15.05.2017 as per Crime No.
207 of 2017, under Sections 147, 148, 307,
452 & 504 I.P.C, P.S. Kotwali Nagar,
Aligarh, has been stayed by this Court vide
order dated 22.10.2018 passed in Criminal
Application Nos. 37751 and 377 of 2018
under Section 482 Cr.P.C - Smt. Rukhsana
and three others vs. State of U.P and
another.

16. It also transpires that a N.C.R No.
58 of 2017 under Sections 323 and 506
I.P.C, has also been lodged for an offence
alleged to be committed on 15.05.2017
against the applicants, which was later on
converted into F.I.R as Crime No. 245 of
2017, considering the medical report of
opposite party no. 2 and after investigation
a charge-sheet under Sections 147, 323,
324, 325, 506 and 506 I.P.C had been
submitted against the applicants of the
present petition. It also transpires that there
was discussion and dispute about the
addition / non-addition of Section 326
I.P.C. during the investigation. Since the
opposite party no. 2 did not appear for her
re-medical examination as required by the
C.M.O, District Magistrate, and the S.S.P,
the I.O. had not submitted the charge-sheet
under Section 326 I.P.C.

17. At the time of taking cognizance an
exhaustive order has been passed by the
learned
A.C.J.M,
Ist,
Aligarh
on
26.07.2018, concluding that there was hole
in the drum of the left ear of the injured
opposite party no. 2 Smt. Rukhsana, hence,
it is also a case of Section 326 I.P.C and
accordingly took cognizance against the
applicants
adding
Section
326
I.PC
alongwith rest of the Sections under which
the charge-sheet had been submitted. This
order had been challenged by the applicants
through criminal revision no. 331 of 2018 -
Shahnawaz & 4 Ors. Vs. State of U.P. in
which the first informant had not been
arrayed as opposite party. According to this
Court, the opposite party no. 2 was the
necessary party to the aforesaid revision
and an opportunity of hearing was required
to be provided to her also. However, the
learned Sessions Judge dismissed the
criminal revision affirming the order passed
by A.C.J.M Ist Aligarh, on 16.04.2019 and
concluded that it was not necessary for the
Magistrate to be in consonance with the
result of the I.O. The Magistrate has
discretion to see as to which offence is
made out against the accused persons at the
time of taking cognizance and when the
396 INDIAN LAW REPORTS ALLAHABAD SERIES
learned A.C.J.M Ist came to the conclusion
that on the basis of material available on
record, the accused should also be
summoned under Section 326 I.P.C, he
took cognizance against the accused
persons under Section 326 I.P.C also,
which cannot be said to be bad in the eye of
law.

18. Being aggrieved, this petition has
been preferred by the accused-applicants on
the grounds that firstly, it is counter blast
case lodged by the applicants against the
opposite party no. 2 and other accused
persons. Secondly, the medical report and
the supplementary medical report of
opposite party no. 2 did not make out any
offence under Section 326 I.P.C as opposite
party no. 2 did not appear for her remedical examination before the medical
board despite the order of the S.S.P and
C.M.O, for the ascertainment of the nature
of injury, therefore, the C.M.O Aligarh,
informed the S.S.P. that after a lapse of
more than a year from the date of
occurrence if the injured is re-examined by
the medical board, no useful purposes
would be served. It has also been
contended by the learned counsel for the
applicants that the learned A.C.J.M Ist,
Aligarh, was not competent enough to take
the cognizance under Section 326 I.P.C,
when no charge-sheet had been submitted
under this Section. The learned counsel for
the applicants contended that such an
addition or alteration can be made only at
the time of framing of charges and not at
the stage of taking cognizance. The learned
A.C.J.M. Ist has discussed Section 320 and
Section 326 I.P.C and was of the opinion
that the right ear injury sustained by the
opposite party no. 2 falls under the
category of grievous hurt under the third
ingredient of Section 320 I.P.C according
to which if there is permanent privation of
hearing of either ear, the injury would be
called to be grievous hurt.

19. The trial Court and the Revisional
Court concluded that the victim's injury in
the drum of the right ear as a hole would be
caused to be grievous hurt under Section
320 I.P.C and according to Section 325
I.P.C if grievous hurt is caused voluntarily
by means of any instrument for shooting,
stabbing or cutting, or any instrument,
which used as a weapon of offence is likely
cause death, or by means of fire or any
heated substance, or by means of any
poison or any corrosive substance, or by
means of any explosive substance, or by
means of any substance, which it is
deleterious to the human body to inhale, to
swallow, or to receive into blood, or by
means by any animal, shall be punishable
with imprisonment for life, or with
imprisonment of either description for a
term, which may extend to ten years and
shall also be liable to be fine and would be
punishable under Section 326 I.P.C.

20. As per the F.I.R dated 15.05.2017
at about 5:30 p.m when opposite party no.
2 went to her matrimonial house, her
relatives did not permit her to enter into the
house and Dewar Sarfaraz, mother-in-law
Anisha, and sister-in-law Farha beat her by
their legs and fists and Dewar Shahnawaz
attacked with knife, due to which she
received injuries.

21. The last I.O. Dinesh Kumar,
concluded that since no injury had been
caused by any dangerous weapon in the
drum of the right ear of the victim
(opposite party no.2) and there is no loss of
complete hearing capacity of her right ear,
hence, Section 326 I.P.C would not be
attracted and accordingly added Section
325 I.P.C.
4 All. Nazim & Ors. Vs. State of U.P. & Anr.
397

22. Learned A.C.J.M Ist discussed
Sections 320 and 326 I.P.C, pointed out the
statements of the Doctor and opined that
the injuries caused to the victim is grievous
in nature and in the opinion of E.N.T
Surgeon there was a hole in the right ear
drum, hence, it was a grievous hurt. In
respect of Section 326 I.P.C, the learned
A.C.J.M.Ist was of the opinion that by the
attack of stick and lathi, grievous fetal
injury may be caused, but this Court is not
inconsonance to the finding recorded by the
learned A.C.J.M.Ist because in several
other cases, it has been held by the Apex
Court and the High Courts that stick and
lathi are not the deadly weapons and it is
nowhere mentioned, under Section 326
I.P.C that if any injury has been caused by
stick or lathi, it would be covered under
Section 326 I.P.C.

23. In paras 3 & 4 of the judgment
passed in case of Dhanai Mahto and Anr.
Vs. State of Bihar 2000 AIR SCW 3966-1,
the Apex Court has held that bamboo-stick
and lathies are not lethal or deadly
weapons.

24. In para 3 of the judgment passed
in the case of Joseph Vs. State of Kerala
1995 SCC (Cri) 165, it has been held that
lathi is not a deadly weapon.

25. In paras 10 & 11 of the judgment
passed in the case of Phool Chand Yadav
Vs. State of U.P. 2022 (4) ALJ 56, it has
been held that stick or lathi is not a deadly
weapons.

26. In para 13 of the judgment passed
in the case of Ram Singh and other Vs.
State
of
Madhya
Pradesh,
Gwalior
Branch, MCRR No 5920 of 2018 Section
320 and Section 326 I.P.C have been
discussed, in which it has been held that
lathi is not a dangerous weapons and if any
injuries has been caused by lathi, it would
not be covered under Sections 320 and 326
I.P.C.

27. According to this Court, only an
injury in the nature of a hole in the right ear
drum of opposite party no. 2 is not covered
under Section 320 (thirdly) I.P.C. as there
is no medical evidence to establish that
there was a permanent privation of hearing
of the right ear. It has been seen that if a
hole has been made in the ear drum, there
would not be permanent privation of the
hearing capacity of the ear. In that case,
certainly there would be some loss in
hearing capacity, but it cannot be said that
there would be complete loss of hearing
capacity. If there is hundred percent loss of
hearing capacity on account of such hole
injury, certainly Section 320 I.P.C would
attract and if any dangerous weapon or
means mentioned under Section 326 I.P.C
has been used in commission of crime only
in that case, Section 326 I.P.C would apply.

28. Opposite party no. 2 Rukhsana
has stated to the I.O under Section 161
Cr.P.C that Naazim hit on her right ear due
to which blood started flowing from the
ear.

29. This Court is of the considered
view that if an stick is used in causing hurt
or grievous hurt on the ear of a victim,
Section 326 I.P.C would not be attracted, if
such injury would have been caused by
knife, or by other means mentioned in
Section 326 I.P.C, such injury would be
covered under Section 326 I.P.C provided
there is hundred percent loss of hearing
capacity of the concerned ear.

30. On the basis of above discussions,
this Court is of the considered view that the
398 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries caused by stick in the right ear of
the victim by Naazim can not be said to be
a grievous hurt as there is no medical report
that there has been permanent loss of
hearing capacity of her right ear and also it
can not be said that such injury is covered
under Section 326 I.P.C.

31. From the above discussions, this
Court is of the considered view that the
learned A.C.J.M. Ist Aligarh and the then
learned Sessions Judge, have been failed in
appreciating the facts, the medical reports and
the law in right perspective and have wrongly
concluded that there was a grievous hurt
defined under Section 320 (3) I.P.C to the
opposite party no. 2, and punishable under
Section 326 I.P.C.

32. The power of taking cognizance
regarding taking cognizance has been
considered by the Apex Court and the High
Courts, and it has been concluded that at the
time of taking cognizance, the concerned
Magistrate has limited power and at this stage
the learned Magistrate or the concerned Court
can not add or alter Section(s), considering
the case diary and the charge-sheet. If the
concerned Magistrate or the Sessions Judge
are of the view that some Section(s) have
been left by the I.O, it has power to add or
alter the Section(s) at the time of framing the
charge, but not at the stage of taking
cognizance.

33. On the basis of above, discussion
this Court is of the considered view that
taking cognizance and summoning the
accused applicants under Section 326 I.P.C is
bad in the eye of law and the judgment of the
Revisional court is also not the correct
preposition of law. Hence this application
succeeds and is liable to be allowed.

O R D E R

This application under Section 482
Cr.P.C, is allowed with regard to taking
cognizance and summoning t he applicants
under Section 326 I.P.C by the learned
A.C.J.M Ist, Aligarh, affirmed by the
Revisional Court are accordingly quashed.
----------
(2023) 4 ILRA 398
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 23506 of 2022

Vijay Gupta ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Sandeep Kumar Dubey

Counsel for the Opp. Parties:
A.S.G.I., G.A., Sri Rahul Anand Gaur

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code,1860 - Sections 325, 323, &
504-Cross-case-In the present case
the applicant seeks passport to pursue
his studies within India-In both the
cases, the police filed charge-sheet but
till
date
charges
have
not
been
framed-The
police
has
submitted
wrong and contradictory report but the
Passport Authority even without going
through the report has refused to issue
passport to the applicant for pursuing
his educational course within IndiaHence, the impugned order passed by
ACJM that he has no jurisdiction to
give
'No
Objection
Certificate'
is
against the law-Directions given.(Para
1 to 18)

The application is disposed of. (E-6)

List of Cases cited: