# Om Prakash & Ors v. State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-25
- **Case number:** Criminal Misc. Application U/S 482 No. 929 of 2017
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-ors-v-state-of-u-p-anr-49022
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 147, 30 &
201-Quashing
of
summoning
ordermurder-complainant's son was killed by
hanging from a tree-Investigating agency
filed
closure
report-Complainant
filed
protest petition, upon which learned
Magistrate
took
cognizance
and
summoned
the
accused-However,
mandatory provision of proviso 2 to sub
section 2 of Section 200 Cr.P.C. had not
complied with-In the instant case, learned
Magistrate opined that prima facie offence
is made out which is triable by Session
Court-Therefore, learned Magistrate called
upon the complainant to furnish list of
witnesses to be examined on oath to hold
an enquiry as the offence was exclusively
triable by the Sessions Court, thus,
learned Magistrate has not committed
any error of law in passing the order and
directing the complainant to file a list of
witnesses to be examined on oath before
committing the case to the learned
Session Court.(Para 1 to 35)

B. The complainant is not bound to
examine all the witnesses named in the
complaint,
only
those
witnesses
are
350 INDIAN LAW REPORTS ALLAHABAD SERIES
required to be examined whom the
complainant considers material to make
out a prima facie case for issuance of
process-At the stage of taking cognizance
the Magistrate has only to see whether
there exists sufficient ground or not. the
list of witnesses can be called at later
stage from the complainant, if the learned
Magistrate is of the opinion that the
offence is exclusively triable by the
Sessions Court in order to examine the
complainant witnesses on oath to hold an
enquiry u/s 202 Cr.P.C. At the initial
stage, even if the list of witnesses are not
filed with the complaint/protest petition,
but on examination of the complainant
and the witnesses produced, learned
Magistrate is of the opinion that there is a
prima facie case against the accused, the
order passed by the learned Magistrate
would not get vitiated.(Para 33)

The application is rejected. (E-6)

List of Cases cited:

## Text

9 All. Om Prakash & Ors. Vs. State of U.P. & Anr.
349
Nos. 1 & 7 and find substance in the same.
The Dedicated Freight Corridor project of
the railways is certainly a project of
national importance. The project has
certainly suffered on account of the present
litigation and on account of the status quo
order operating since 3.1.2019.

27. We find that the petitioners have
no right, title or interest in plot No. 139M
area 0.0140 hectares (140 square meters)
situate in village Pirallipur, Pargana Haveli,
Post Chunar, District Mirzapur as pleaded
and the same does not stand settled with
them under Section 67-A of the U.P.
Revenue Code, 2006. The house of the
petitioners is built over plot No. 140M and
139M with major portion lying over plot
No. 140M. An area upto 200 square meters
with structure thereon could alone be
settled with the petitioners under Section
67-A of the U.P. Revenue Code and not the
entire area of 0.0580 hectares (580 square
meters) comprised in plot No. 140M and
139M. No right can be said to have accrued
to the petitioners in respect of plot No.
139M and 140M in excess of 200 square
meters. The respondent Nos. 1 and 7 have
already determined the compensation in
respect of the dwelling house constructed
over plot No. 139M and 140M to the tune
of Rs.33,42,507/- which the petitioners are
entitled to collect from the respondents.

28. For the forgoing reasons, the writ
petition lacks merit and is, accordingly,
dismissed.
The
interim
order
dated
3.1.2019 is discharged

29. In the connected Writ-C No.
17435 of 2018 separate order would be
passed.
----------
(2022) 9 ILRA 349
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Misc. Application U/S 482 No. 929 of
2017

Om Prakash & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Rajendra Prasad Mishra, Raghvendra Singh

Counsel for the Opposite Parties:
G.A., Anurag Singh, K.K. Singh Rathore,
Syed Aftab Ahmad

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 147, 30 &
201-Quashing
of
summoning
ordermurder-complainant's son was killed by
hanging from a tree-Investigating agency
filed
closure
report-Complainant
filed
protest petition, upon which learned
Magistrate
took
cognizance
and
summoned
the
accused-However,
mandatory provision of proviso 2 to sub
section 2 of Section 200 Cr.P.C. had not
complied with-In the instant case, learned
Magistrate opined that prima facie offence
is made out which is triable by Session
Court-Therefore, learned Magistrate called
upon the complainant to furnish list of
witnesses to be examined on oath to hold
an enquiry as the offence was exclusively
triable by the Sessions Court, thus,
learned Magistrate has not committed
any error of law in passing the order and
directing the complainant to file a list of
witnesses to be examined on oath before
committing the case to the learned
Session Court.(Para 1 to 35)

B. The complainant is not bound to
examine all the witnesses named in the
complaint,
only
those
witnesses
are
350 INDIAN LAW REPORTS ALLAHABAD SERIES
required to be examined whom the
complainant considers material to make
out a prima facie case for issuance of
process-At the stage of taking cognizance
the Magistrate has only to see whether
there exists sufficient ground or not. the
list of witnesses can be called at later
stage from the complainant, if the learned
Magistrate is of the opinion that the
offence is exclusively triable by the
Sessions Court in order to examine the
complainant witnesses on oath to hold an
enquiry u/s 202 Cr.P.C. At the initial
stage, even if the list of witnesses are not
filed with the complaint/protest petition,
but on examination of the complainant
and the witnesses produced, learned
Magistrate is of the opinion that there is a
prima facie case against the accused, the
order passed by the learned Magistrate
would not get vitiated.(Para 33)

The application is rejected. (E-6)

List of Cases cited:
1. Rosy & anr. Vs St. of Ker. (2000) 2 SCC 230
2. Shivjee Singh Vs Nagendra Tiwary & ors.
(2010) 7 SCC 578

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

(Application No.14 of 2022)

1. The application seeks recall of the
order dated 12.04.2022.

2. Heard learned counsel for the
applicants-petitioners.

3. Allowed.

4. Order dated 12.04.2022 is hereby
recalled.

5. The petition is restored to its
original number.

(Order on Memo)

6. Present petition under Section 482
Cr.P.C. has been filed seeking quashing of
the proceedings of Criminal Case No.3682
of 2010: Smt. Madhuri vs Anoop Kumar &
Ors, arising out of Case Crime No. 879 of
2008 under Sections 147, 302, 201 IPC,
Police Station Mishrikh, District Sitapur as
well as summoning order dated 23.12.2015
whereby
the
petitioners
have
been
summoned to face trial under Sections 147,
302, 201 IPC.

Further challenge has been made
to the order passed by the learned
Additional Sessions Judge, Court No.11,
Sitapur in Criminal Revision No.50 of 2016
dismissing the revision of the petitioners
instituted against the summoning order
dated 23.12.2015.

7. The complainant/respondent No.2
filed an application on 14.12.2007 under
Section 156(3) Cr.P.C. alleging that her son
was killed on 12.11.2007 at around 9 A.M.
by the accused-petitioners and his dead
body was hanged from a tree. On the basis
of order passed by learned Magistrate the
FIR at Case Crime No.879 of 2008 came to
be registered on 11.07.2008 under Sections
147, 302, 201 IPC against the accusedpetitioners.

8.

The
investigating
agency,
however, filed closure report in favour of
the petitioners on 24.07.2008. Against the
closure report, the complainant filed a
protest
petition,
and
the
learned
Magistrate considering the evidence and
material, took cognizance under Section
190 Cr.P.C. and summoned the accusedpetitioners for offences under Sections
147, 302, 201 IPC vide order dated
29.07.2010.
9 All. Om Prakash & Ors. Vs. State of U.P. & Anr.
351

9. The petitioners thereafter filed a
petition under Section 482 Cr.P.C. being
Criminal Miscellaneous Case No.48 of
2011.

10. This Court on 31.01.2011 passed
the following order in the said petition:-

"Supplementary affidavit filed by
the petitioners is taken on record.

The petitioners have challenged
the order dated 29th of July, 2010, passed
by the learned Chief Judicial Magistrate,
Sitapur on the ground that the learned
Magistrate has taken cognizance of offence
on the protest application under Section
190(1)(b)Cr.P.C., which provides that the
Magistrate may take cognizance of any
offence in exercise of power provided
under the aforesaid section, but the
Magistrate may take cognizance of offence
only upon the police report of such facts.
He further submits that the complaint case
can never be treated as a police case,
whereas the learned Magistrate has directed
to proceed as State Case.

Upon
perusal
of
the
order
impugned the submission of learned
counsel for the petitioners cannot be
disputed. I am of the view that the learned
Magistrate on the basis of complaint can
may take cognizance of offence only under
Section 190 (1)(a) Cr.P.C. and that is not
the State case in any manner, therefore, I
hereby modify the order impugned to the
extent that the cognizance taken by the
learned Magistrate shall be considered as
cognizance taken under Section 190(1)(a)
Cr.P.C. and the learned Magistrate shall
proceed with the case accordingly.

In the aforesaid terms the petition
is disposed of finally. "

11. From perusal of the aforesaid
order, it is evident that learned Single
Judge was of the opinion that this petition
was not a state case and, therefore, the
order dated 29.07.2010 passed by the
Magistrate was modified to the extent that
cognizance taken by the learned Magistrate
should be considered as cognizance taken
under Section 190(1)(a) Cr.P.C. and the
Magistrate should proceed with the case
accordingly.

12. Thus, this Court directed the
learned Magistrate to treat the protest
petition as a complaint case. After passing
of the aforesaid order by the this Court, the
case was registered as a complaint case
vide Case No.3692 of 2010.

13. Statement of the complainant was
recorded under Section 200 Cr.P.C. on
09.06.2019. In her statement recorded
under Section 200 Cr.P.C., the complainant
said that on 22.11.2007 at around 9 A.M.
accused-Anup Kumar took her paralyzed
son, Sohit in respect of some theft allegedly
committed by Sohit in the shop of Anup's
uncle. Accused-Anup was an occultist. On
the same day, the body of the son of the
complainant was found in a field hanging
from a tree which is near to the worship
place of Anup Kumar. In the evening, the
accused-Gulshan, Ashutosh, Om Prakash,
Krishna Prakash and many other persons
brought the dead body of her son to the
house of the complainant. At that time, no
male member of the family was present.
When the husband of the complainant came
home, he found the dead body of his son
lying in the house, he became unconscious
and the dead body was buried by accusedGulshan, Ashutosh, Om Prakash, Krisha
Prakash and others. Later on, elder brother
of the husband of the complainant got the
full information about the incident from
Munni Devi an eye witness and other
persons that accused-Gulshan, Ashutosh,
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Om Prakash and Krishna Prakash had
strangulated the deceased and after killing
him hanged his body from the tree. He gave
information to the higher authorities and
then dead body was exhumed and post
mortem on the body gotconducted.

14. Mr.Uttam Kumar Mishra, Smt.
Munni, Mr. Bhagauti Prasad and Dr.Arun
Kumar were examined under Section 202
Cr.P.C.

15. Mr. Uttam Kumar Mishra was the
elder brother of the husband of the
complainant. He said that Sohit's one hand
was amputated and, therefore, he could not
have hanged himself from a tree. When he
enquired about the incident from people, he
was informed that Anup took the deceased
on 22.11.2007 at 9:00 A.M. from the house
and he was of the confirmed view that it
was accused-Anup, who had killed the
deceased on which he gave a complaint on
23.11.2007 at the police station and,
thereafter, dead body was taken out from
the grave and post mortem was conducted.
It was further said that from interration
with Munni Devi, he could come to know
Anup, Gulshan, Ashutosh, Om Prakash had
killed his nephew.

16. Smt. Munni Devi in her statement
recorded under Section 202 Cr.P.C. stated
that she witnessed accused-Anup, Gulshan,
Ashutosh, Om Prakash, Krishna Prakash
strangulating the deceased by a rope. Sohit
was crying and she tried to stop the accused
but they threatened her and chased her
away from the place of the incident. She
came home and after sometime, she could
come to know that Sohit was killed.

17. Mr.Bhagwati Prasad, grandfather
of the deceased-Sohit in his statement
stated that deceased-Sohit's left hand was
amputated in a flour mill, and his both legs
were also broken. He used to have
difficulty even in answering the natural
call. Some theft was committed in the shop
of Anup's uncle, Sohit's name came in
relation to said theft. On 22.11.2007 Anup
took Sohit from his house and on the same
day at around 12:30 Hours, his dead body
was found hanging from a tree near his
worship place. He could come to know
from Munni Devi and others that Anup,
Gulshan, Ashutosh, Om Prakash, Krishna
Prakash had killed the deceased by
strangulating him by a rope.

18. Dr.Arun Kumar Gautam, who
conducted the post mortem examination on
the body of the deceased was also
examined.

19.

Learned
Magistrate
after
considering
the
statements
of
the
complainant and the witnesses under
Sections 200 and 202 Cr.P.C. respectively
summoned the petitioners vide impugned
order dated 23.12.2015 and was of the
opinion that prima facie offence under
Sections 147, 302, 201 IPC was made out
against the accused-petitioners. They were
summoned vide impugned order dated
23.12.2015. The complainant was directed
to file a list of witnesses.

20. Mr. Rajendra Prasad Mishra,
learned counsel for the petitioners has
submitted that the learned Magistrate has
failed to appreciate that there is no
evidence to take cognizance or for
summoning the petitioners for offences
under Sections 147, 302, 201 IPC. Police
had already filed closure report earlier after
considering
the
statements
of
the
complainant and witnesses. Their evidence
is
neither
credible
nor
cogent
and,
therefore, summoning the petitioners on the
9 All. Om Prakash & Ors. Vs. State of U.P. & Anr.
353
basis of statements of the complainant and
the witnesses is wholly illegal and
impugned order is liable to be set aside.

21. Learned counsel for the petitioner
has further submitted that the cause of
death in the post mortem report is not
strangulation but it is asphyxia as a result
of hanging. He, therefore, has submitted
that the allegation that the deceased was
strangulated by the petitioners, and other
accused, and he was hanged from the tree
cannot be believed. Learned counsel for the
petitioners has also submitted that the
complainant has not filed any list of
witnesses along with protest petition and,
therefore, in absence of this mandatory
requirement under proviso 2 of Section
202(2) Cr.P.C. the complaint was required
to be rejected.

22. On the other hand, Mr.Anurag
Singh, learned counsel appearing for
opposite party No.2 and Mr.Rao Narendra
Singh, learned A.G.A have opposed the
petition and have submitted that the learned
Magistrate had taken cognizance on the
closure report submitted by the police but
his Court vide order dated 31.01.2011 had
directed that the protest petition to be
treated as complaint. They have submitted
that evidence of eye witnesses, Munni and
others
would
prima
facie
disclose
commission
of
the
offence
by
the
petitioners.
At
the
stage
of
taking
cognizance and summoning the accused,
only prima facie case is to be considered.
From reading of the statements of the
complainant and the witnesses, it cannot be
said that no prima facie offence is made out
against the petitioners. They therefore, have
submitted that this petition challenging the
impugned
order
23.12.2015
taking
cognizance and summoning the petitioners
has no merit and liable to be dismissed.

23. In respect of submission that
mandatory provision of proviso 2 to sub
section 2 of Section 200 Cr.P.C. has not
been complied with, they have submitted
that it was the protest petition which was
treated as complaint case by the learned
Magistrate
and
after
examining
the
complainant and witnesses, when learned
Magistrate has found prima facie case to
hold further enquiry, he has directed the
complainant to file a list of witnesses. List
of witnesses has already been filed.
Learned Magistrate will examine the
complainant and the witnesses on oath to
hold an enquiry as provided under Section
202 Cr.P.C. before committing matter of
Sessions Court. They have, therefore,
submitted that there is no illegality in the
procedure adopted by learned Magistrate,
and the present petition has no merit which
is liable to be dismissed.

24. I have considered the submissions
of
Mr.R.P.
Mishra,
learned
counsel
appearing for the petitioners, Mr.Anurag
Singh, learned counsel appearing for the
complainant and Mr.Rao Narendra Singh,
learned A.G.A. for the State.

25. From the statements of the
complainant and the witnesses recorded
under Sections 200 and 202 Cr.P.C., it
cannot be said that no offence under
Sections 147, 302, 201 IPC has been made
out.
Post
mortem
report
has
only
corroborative value, and it is not a primary
evidence. Post mortem is an expert opinion
and if there is an eye witness account, the
accused cannot get away only on the basis
of post mortem report.

26. I, therefore, do not find any
substance in the submissions of learned
counsel for the petitioners that there is no
evidence available against the petitioners
354 INDIAN LAW REPORTS ALLAHABAD SERIES
for summoning them to face trial under
Sections 147, 201, 302 IPC

27. So far as submission of the
learned counsel for the petitioners that in
absence of list of witnesses with the
complaint/protest petition, protest petition
was required to be rejected, this Court
considers that proviso 2 to Section 202(2)
Cr.P.C. provides that in an enquiry if the
Magistrate is of the opinion that offence
complained of is triable exclusively by the
Court
of
Session,
then
the
learned
Magistrate is required to call upon the
complainant to produce all his witnesses
and then he should examine them on oath.

28. In this case, after considering the
statement of the complainant and the
witnesses recorded under Section 200 and
202 Cr.P.C. learned Magistrate was of the
opinion that prima facie offence under
Sections 147, 201, 302 IPC is made out
against the petitioner which is triable by the
Sessions
Court,
therefore,
learned
Magistrate has called upon the complainant
to submit list of witnesses for examining
them on oath. Learned Magistrate has not
committed any error of law in passing the
impugned
order
and
directing
the
complainant to file a list of witnesses to be
examined on oath before committing the
case to the learned Sessions Court.

29. The Supreme Court in the case of
Rosy & Anr vs State of Kerala : (2000) 2
SCC 230 has held that under Section 200
read with 202 Cr.P.C., it is only at the
discretion of Magistrate to decide whether to
hold an inquiry or not before issuing process
to the accused. Question of complying with
the proviso 2 to Section 202(2) Cr.P.C. would
arise only in cases where the Magistrate
before taking cognizance of the case decides
to hold the inquiry, and further decides to
take evidence of witnesses on oath. The
object and purpose of holding inquiry or
investigation under Section 202 Cr.P.C. is to
find out whether there is sufficient ground for
proceeding against the accused or not and
that holding of inquiry or investigation is not
an indispensable course before issuing of
process against the accused or dismissal of
the complaint. The Supreme Court has held
that it is an enabling provision to form an
opinion as to whether or not process should
be issued and to remove from his mind any
doubt that he may have felt upon the mere
perusal
of
the
complaint
and
the
consideration of the complainant's evidence
on oath.

30. Enquiry under Section 202 Cr.P.C.
is of limited nature. Firstly, to find out
whether there is prima facie case in issuing
process against the person accused of the
offence in the complaint and secondly, to
prevent the issue of process in the complaint
which is either false or vexatious or intended
only to harass such a person. At that stage,
the evidence is not to be meticulously
appreciated, as the limited purpose being of
finding out whether or not there is sufficient
ground for proceeding against the accused.
The standard to be adopted by the Magistrate
in scrutinizing the evidence is also not the
same as the one which is to be kept in view at
the stage of framing charges. At the stage of
inquiry under Section 202 Cr.P.C. accused
has no right to intervene and that it is the duty
of the Magistrate while making an enquiry to
elicit all facts not merely with a view to
protect the interests of an absent accused
person, but also with a view to bring to book
a person or persons against whom grave
allegations are made.

31. The Supreme Court in the case of
Shivjee Singh vs Nagendra Tiwary &
Ors: (2010) 7 SCC 578 has held that non
9 All. Raghvendra Singh & Ors. Vs. State of U.P. & Anr.
355
examination on oath of any or some of the
witnesses cited by the complainant is, by
itself,
not
sufficient
to
denude
the
Magistrate of the jurisdiction to take
cognizance and issue of process provided
he is satisfied that prima facie case is made
out for doing so.

32. The complainant is not bound to
examine all the witnesses named in the
complaint or whose names are disclosed in
response to the order passed by the
Magistrate. Only those witnesses are
required to be examined whom the
complainant considers material to make out
a prima facie case for issuance of process.
Then the choice being of the complainant,
he may choose not to examine other
witnesses. Consequence of such nonexamination is to be considered at the trial
and not at the stage of issuing process when
the Magistrate is not required to enter into
detailed discussions on the merits or
demerits of the case. At the stage of taking
cognizance
and
issuing
process,
the
Magistrate has only to see whether there
exists sufficient ground or not.

33. Considering the proviso 2 of
Section
202
(2)
Cr.P.C.
and
the
judgments cited above, I am of the
considered view that the list of witnesses
can be called at later stage from the
complainant, if the learned Magistrate is
of the opinion that the offence is
exclusively triable by the Sessions Court
in order to examine the complainant
witnesses on oath to hold an enquiry
under Section 202 Cr.P.C. at the initial
stage, even if the list of witnesses are not
filed with the complaint/protest petition,
but on examination of the complainant
and the witnesses produced, learned
Magistrate is of the opinion that there is a
prima facie case against the accused, the
order passed by the learned Magistrate
would not get vitiated.

34. In the present case, learned
Magistrate
has
called
upon
the
complainant to furnish list of witnesses to
be examined on oath to hold an enquiry
as the offence is exclusively triable by the
Sessions Court, and this Court does not
find
that
learned
Magistrate
has
committed any error of law or jurisdiction
in doing so.

35. In view of the aforesaid
discussion, present petition being devoid
of
merit
and
substance
is
hereby
dismissed. If the petitioners surrender
before the trial Court and apply for
regular bail, their bail application(s)
should be considered expeditiously in
accordance with law.
----------
(2022) 9 ILRA 355
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc. Application U/S 482 No. 2300 of
2016

Raghvendra Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Narendra Kumar Singh

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 420, 468,
471, 506 & 120B-Quashing of -Complaint