# Nishant Tiwari @ Sonu & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2014) 2 ILRA 728
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-24
- **Case number:** Criminal Misc. Application No. 21608 of 2014
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nishant-tiwari-sonu-ors-v-state-of-u-p-anr-opp-parties-42965
- **Pages:** 4

## Headnote

Cr.P.C.-Section
482-
Quashing
of
criminal
proceeding-offence
under
section 498-A, 323, 506 IPC-on ground
process issued under Section 202(i)-
without-enquiry-vitiated-held-when the
Magistrate after recording statement
under section 200 and 202 Cr.P.C-being
satisfied regarding existence of prima
facie case against applicants amended
provisions of 202 (i)Cr.P.C.-stand fully
2 All] Nishant Tiwari @ Sonu & Ors. Vs. State of U.P. & Anr.
729
complied with no interference called forhowever direction for consideration of
bail in Amrawati Case as well as Lal
Kamlendra Pratap Singh case must be
fully complied with.

Held: Para-8
As in the instant case, the process has
been
issued
after
recording
the
statement of the complainant as well as
the witnesses as also after recording
satisfaction with regards to existence of
a prima facie case against the accused,
upon consideration of the statements so
recorded as also the material brought on
record, it cannot be said that there was
no
compliance
of
the
amended
provisions of sub section (1) of Section
202 of the Code of Criminal Procedure.

## Text

728 INDIAN LAW REPORTS ALLAHABAD SERIES
it and after hearing him/her and perusal of
record it shall pass appropriate order on
the bail application.

III.Deferment of bail application
should be only if the accused makes a
statement, which shall be recorded in
writing by the Court concerned that bail
application should be deferred till his/her
counsel is available and he/she is ready to
continue in detention.

IV.If the accused is not present in
court having not been brought from jail,
the Court shall ensure its sitting in jail
itself for disposal of bail application on
that very date, and with the consent of
accused in jail, his/her bail application be
disposed of. There also deferment shall
only be on statement made by the accused
which shall be recorded by the Court
concerned.

V.If the Court finds that some
relevant information is required from
prosecution, and for valid reasons it is not
available on the same day, the application
may be taken up on the next day but there
should not be a general long adjournment
as a matter of course.

VI.Personal liberty of individuals
must be given due credit, respect and
honour.

13. The Court below is, therefore,
directed to dispose of Bail Application
No. 1122 of 2014 on the next date fixed,
and the case shall not be adjourned only
on the ground that Advocates are on strike
or
that
prosecution
is
seeking
adjournment as a matter of course.

14. It was a simple matter and
should not have come to this Court but
due to unfortunate inaction and lethargy
on the part of the court below, the
applicants have been compelled and
forced to seek remedy before this Court
having no other alternative. The State
investigating agency and the prosecution
are equally responsible since they have
also not shown attitude of cooperation for
expeditious disposal of bail application. In
view thereof, I am clearly of the opinion
that it is a fit case where the applicants
must be compensated for avoidable
expenses it has met in litigation before
this Court.

15. The application is accordingly
allowed with the aforesaid directions. The
applicants shall also be entitled to cost
which I quantify to Rs.Ten Thousand,
which shall be paid by respondent no. 1 to
the applicants within a month.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.06.2014

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Misc. Application No. 21608 of 2014
(U/s 482 of Cr.P.C.)

Nishant Tiwari @ Sonu & Ors. .Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Ram Surat Patel

Counsel for the Respondents:
A.G.A.

Cr.P.C.-Section
482-
Quashing
of
criminal
proceeding-offence
under
section 498-A, 323, 506 IPC-on ground
process issued under Section 202(i)-
without-enquiry-vitiated-held-when the
Magistrate after recording statement
under section 200 and 202 Cr.P.C-being
satisfied regarding existence of prima
facie case against applicants amended
provisions of 202 (i)Cr.P.C.-stand fully
2 All] Nishant Tiwari @ Sonu & Ors. Vs. State of U.P. & Anr.
729
complied with no interference called forhowever direction for consideration of
bail in Amrawati Case as well as Lal
Kamlendra Pratap Singh case must be
fully complied with.

Held: Para-8
As in the instant case, the process has
been
issued
after
recording
the
statement of the complainant as well as
the witnesses as also after recording
satisfaction with regards to existence of
a prima facie case against the accused,
upon consideration of the statements so
recorded as also the material brought on
record, it cannot be said that there was
no
compliance
of
the
amended
provisions of sub section (1) of Section
202 of the Code of Criminal Procedure.

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard learned counsel for the
applicants and the learned A.G.A. for the
State.

2. By the present application, the
applicants, who are husband, father in law
and mother in law of the complainant
(opposite
party
no.2),
have
sought
quashing of the proceedings of Complaint
Case No.48 of 2013 pending in the Court
of Judicial Magistrate, Orai, District
Jalaun, under Section 498-A, 323, 506
I.P.C. and Section 3⁄4 of D.P. Act, P.S.
Kotra, District Jalaun.

3. A perusal of the complaint, and
paragraph 4 in particular, disclose the
involvement
of
the
applicants
in
commission of the offences for which
they have been summoned. There is an
injury
report
also
to
support
the
allegations. The learned Magistrate after
taking cognizance on the complaint
proceeded to hold an inquiry by recording
statement of the complainant under
section 200 and of the witnesses under
section 202 Cr.P.C. to ascertain whether
or not there is sufficient ground to
proceed
against
the
accused.
After
considering the allegations, the injury
report and the statements recorded under
sections 200 and 202 CrPC, the learned
magistrate recorded satisfaction with
regards to existence of a prima facie case
to proceed against the applicants and,
accordingly, summoned the applicants for
offences punishable under Sections 498A, 323, 506 I.P.C. and Section 3⁄4 of D.P.
Act.

4. Challenging the proceedings, the
learned
counsel
for
the
applicants
submitted that as the applicants, who are
the accused, reside outside the jurisdiction
of the Court, where cognizance has been
taken, therefore, before issuing process
the learned Magistrate ought to have
himself inquired or to have directed an
investigation for the purpose of deciding
whether or not there is sufficient ground
for proceeding against the accused. It has
been
submitted
that
by
virtue
of
amendment of sub section (1) of section
202, by Act No.25 of 2005, with effect
from 23.06.2006, in the Code of Criminal
Procedure, such an inquiry is mandatory
and in absence thereof, the order issuing
process stands vitiated. In support of the
said submission, reliance has been placed
on decisions of the apex court in the case
of National Bank of Oman V. Barakara
Abdul Aziz: (2013) 2 SCC 488 and K.T.
Joseph v. State of Kerala: (2009) 15 SCC
199. The second submission of the
learned counsel for the appellant is that in
absence of clear and specific allegation
against the father in law and the mother in
law they ought not to have been
summoned by the learned magistrate in
view of the decision of the apex court in
the case of Geeta Mehrotra & another
730 INDIAN LAW REPORTS ALLAHABAD SERIES
versus State of UP & another: (2012) 10
SCC 741.

5. I have considered the submissions
of the learned counsel for the applicants
and perused the record.

6. The first submission of the
learned counsel for the applicants is
completely misconceived, inasmuch as,
the learned magistrate has himself held an
inquiry by recording statement on oath of
the complainant and her witnesses Vinay
Mishra and Gaya Prasad, under sections
200 and 202 CrPC respectively, which are
on record as Annexure Nos.3, 4 and 5. It
is only after recording the statements, and
consideration of the same along with
injury report, the learned magistrate drew
satisfaction with regards to existence of a
prima facie case for proceeding against
the applicants and has summoned them
accordingly.

7. The term inquiry as contemplated
by sub section (1) of Section 202 is a pretrial inquiry, as would be clear from
Section 2 (g) of the Code of Criminal
Procedure, which defines inquiry as every
inquiry, other than trial, conducted under
the Code by a Magistrate or Court. In
Hardeep Singh v. State of Punjab: (2014)
3 SCC 92, in para 117.2 of the report, the
Constitutional Bench of the Apex Court
observed that inquiries under Sections
200, 201, 202 CrPC, and under Section
398 CrPC are species of the inquiry
contemplated by Section 319 CrPC. It
was observed that materials coming
before the court in course of such
inquiries can be used for corroboration of
the evidence recorded in the court after
the trial commences, for the exercise of
power under Section 319 CrPC, and also
to add an accused whose name has been
shown in Column 2 of the charge-sheet.
In Vasanti Dubey v. State of M.P.: (2012)
2 SCC 731, the apex court, in paragraph
29 of the report, observed that while in a
case based on police report, the court
while taking cognizance will straightaway
examine whether a prima facie case is
made out or not and will not enter into the
correctness of the allegation levelled in
the FIR, whereas a complaint case
requires an enquiry by the Magistrate
under Section 200 CrPC if he takes
cognizance of the complaint. In case he
refuses to take cognizance he may either
dismiss the complaint or direct the
investigating agency to enter into further
investigation. In case he does not exercise
either of these two options, he will have
to proceed with the enquiry himself as
envisaged and enumerated under Section
200 CrPC. From above, it is clear that
recording of statement under Section 200
CrPC or under Section 202 CrPC, is
nothing but a part of the pre-trial inquiry.
Accordingly,
where
the
magistrate
records the statement of the complainant
under section 200 CrPC and, if required,
of the witnesses under section 202 CrPC
and proceeds to consider them, along with
other
material,
if
produced,
for
ascertaining whether a prima facie case is
made out to proceed against the accused,
and records a satisfaction to that effect,
there is sufficient compliance of the
amended provisions of sub section (1) of
Section 202 of the Code. Process issued to
an accused residing out of the territorial
jurisdiction of the Magistrate, after
following the aforesaid procedure is not
vitiated in any manner.

8. As in the instant case, the process
has been issued after recording the
statement of the complainant as well as
the witnesses as also after recording
2 All] Krishna Kant Mishra Vs. State of U.P. & Anr.
731
satisfaction with regards to existence of a
prima facie case against the accused, upon
consideration
of
the
statements
so
recorded as also the material brought on
record, it cannot be said that there was no
compliance of the amended provisions of
sub section (1) of Section 202 of the Code
of Criminal Procedure.

9. So far as the second submission
of the learned counsel for the applicants is
concerned, the same cannot be accepted
as there are allegations against all the
accused who are husband, father in law
and mother in law of the complainant. As
the
complaint
allegations
and
the
statements made in support thereof as also
the injury report do make out a prima
facie
case
to
proceed
against
the
applicants neither the summoning order
nor the consequential proceedings can be
quashed. The prayer of the applicant to
that extent is therefore rejected.

10. At this stage, the learned counsel
for the applicants submitted that a simple
matrimonial discord between husband and
wife has been given color of a dowry
case.
It
has
been
submitted
that
subsequent to filing of the complaint, the
husband (the applicant no.1) filed a
petition for restitution of conjugal rights,
which was decreed ex parte, thereby
disclosing that the complainant had no
justifiable cause to live separate. It has
been
submitted
that
the
complaint
allegations are nothing but false.

11. Be that as it may, the veracity of
the allegations cannot be tested at this
stage, inasmuch as, at this stage, the
allegations are to be taken at their given
face value. And since from the complaint
allegations and the material in support
thereof a prima facie case to proceed
against the applicants is made out the
proceedings cannot be quashed at the
threshold. However, considering the facts
and circumstances of the case, it is hereby
provided that if the applicants appear
/surrender before the court concerned and
apply for bail, within a period of four
weeks from today, their bail application
shall be considered in accordance with
law laid down in the case of Amrawati
and another Vs. State of U.P.: 2004 (57)
ALR 290, decided by a Full Bench of this
Court, which has been approved by the
Apex Court in the case of Lal Kamlendra
Pratap Singh Vs. State of U.P.: 2009(3)
ADJ 322 (SC).

12. With the aforesaid observations
/directions,
the
application
stands
disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition (PIL) No. 26711 of 2014

Krishna Kant Mishra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Nandan

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-read with
Registration Act 1908-Section 17(i)(b)-with
power of attorney Act 1982, Section-2-PILSeekind direction to furnish information
with regards to Registration of power of
attorney-reliance
placed
upon