# Pradeep Kumar & others v. The State of U.P. and another

- **Citation:** (2006) 2 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-24
- **Case number:** Act as amended by Act No. 22 of 1998
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-others-v-the-state-of-u-p-and-another-40672
- **Pages:** 6

## Headnote

Code
of
Criminal
Procedure-S-204Summoning order-Power of Magistrateoffence
under
section
147/148/149/323/504/506
IPCdisclosed from statement, under section
200 and 202-held Magistrate can not
travel beyond that independent witness
not examined have no any substance
unless
prejudice
caused
to
the
accused/applicant.

Held: Para 10
2 All] Pradeep Kumar and others V. The State of U.P. and another
891
At the stage of summoning under section
204 Cr.P.C. the Magistrate is required
only to see as to whether any triable
offence is made out from the complaint
and the statements recorded u/s 200
and 202 Cr.P.C. or not? At that stage his
power does not travel beyond that
scope. This view is no longer res integra
and has been cemented by volumes of
decisions of both by this court as well as
apex
court.
The
contention
of
the
learned counsel for the applicants thus is
de horsed the law and is hereby rejected.
Case law discussed:
2005 (53) ACC-218
2000 (40) ACC-444

## Text

890 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
that behalf made within four years from
the date of registration of any instrument."

8. The learned Standing Counsel has
denied the assertions made by the learned
counsel for the petitioner and states that
there has been an amendment in the Act
by which the limitation is now eight years
instead of four years and that the
Collector has rightly accepted the auditors
report for the purpose of market value.
The provisions of Stamp Act do not
empower auditors to determine market
value or stamp duty payable under the
Stamp Act.

CONCLUSIONS

9. Under Section 47-A of the Stamp
Act as amended by Act No. 22 of 1998
the Collector was bound to make enquiry
and also to give a finding on the market
value of the property. He has merely
referred to the audit objection in his order,
which is no evidence of market value and
has not applied his mind in determining
market value of the property. The circle
rate fixed under the Stamp Act is primafacie evidence of market value of the area
where the property is situated. No reasons
have been given in the impugned order
for holding market value above the circle
rate. From the language of the Subsection it is not possible to hold that the
period
of four years qualifies the
reference made by the authorities of the
Stamp Department and this question has
been decided in the Full Bench decision
in Girjesh Kumar Srivastava (Supra).

10. The mention in the impugned
order that notice had been sent to the
petitioner but no objection was filed
appears to be incorrect. No notice or
opportunity appears to have been given to
the petitioner and the Collector has based
his judgment on the audit report which
was filed subsequently, as such the
impugned
orders
dated
29.4.2002,
10.9.2001 and the order of reference
passed in violation of the principles of
natural justice are liable to be set aside.

11. For these reasons the petition is
allowed and the impugned orders are
quashed. No order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 1678 of
2006

Pradeep Kumar & others
...Applicants
Versus
The State of U.P. and another

 ...Opposite Parties

Counsel for the Applicants:
Sri Ram Babu Sharma

Counsel for the Opposite Parties:
Sri Tahabin Islam
Sri M.K. Gupta
A.G.A.

Code
of
Criminal
Procedure-S-204Summoning order-Power of Magistrateoffence
under
section
147/148/149/323/504/506
IPCdisclosed from statement, under section
200 and 202-held Magistrate can not
travel beyond that independent witness
not examined have no any substance
unless
prejudice
caused
to
the
accused/applicant.

Held: Para 10
2 All] Pradeep Kumar and others V. The State of U.P. and another
891
At the stage of summoning under section
204 Cr.P.C. the Magistrate is required
only to see as to whether any triable
offence is made out from the complaint
and the statements recorded u/s 200
and 202 Cr.P.C. or not? At that stage his
power does not travel beyond that
scope. This view is no longer res integra
and has been cemented by volumes of
decisions of both by this court as well as
apex
court.
The
contention
of
the
learned counsel for the applicants thus is
de horsed the law and is hereby rejected.
Case law discussed:
2005 (53) ACC-218
2000 (40) ACC-444

(Delivered by Hon'ble Vinod Prasad, J.)

1. The present application has been
filed by Pradeep Kumar, Rajeev Kumar,
Vinay Kumar, Dharma Veer and Rajesh,
with the prayer to set aside the judgment
and order dated 4.2.2006, passed by
Additional Sessions Judge/Special Judge,
E.C. Act, Bulandshash, in criminal
revision no. 482/05, Pradeep Kumar and
others versus State of U.P. the applicants
have also prayed for setting aside the
order dated 16.8.2005 passed by Judicial
Magistrate Ist, Bulandshahr in case no.
1765/05 u/s 147,148,149,323,504, 506
and
395
IPC
P.S.
Dibai,
district
Bulandshahr. By the aforesaid order dated
16.8.2005, the Judicial Magistrate has
summoned the applicants for offences u/s
147,148,149,32,504,506 and 395 IPC and
vide impugned order dated 4.2.2006 the
Additional Sessions Judge/Special Judge,
E.C. Act, Bulandshahr has rejected the
revision filed by the accused challenging
the aforesaid summoning order passed by
the Judicial Magistrate. As the present
applicants were summoned as an accused
and their revision before the lower
revisional court was also rejected, hence
this application u/s 482 Cr.P.C. for
quashing of both the orders.

2. The facts encapsulated are that a
FIR was lodged on 9.3.2002 at 4 P.M. by
the informant respondent no. 2 Manoj
Kumar in respect of an incident alleged to
have taken place on 10.1.2002 at 10.30
A.M., which was registered as crime
no.145/05, u/s 147, 148, 149, 323, 504,
506 and 395 IPC, at P.S. Dibai, district
Bulandshahr. In the aforesaid FIR the
informant Manoj Kumar had made the
present applicants an accused. It is
important to note that the two applicants
Rajeev Kumar and Vinay Kumar are the
real brothers of the informant. The
thumbnail sketch of the fact mentioned in
the FIR was that the informant was also a
partner in Kailash Gyan Talkies, which is
situated on plot no. 203 Railway Road,
Dibai. On 10.1.2002 at 10.30 A.M. he had
gone to the accused Rajeev and Vinay
Gupta who are his real brothers to inquire
about the illegal construction over the plot
as well as regarding the sale of the two
generator sets, both belonging to the said
Talkies. There, he was assaulted by the
applicants with kicks, fists, lathi and
dandsa and was also vituparised and
threatened for life by the accused who
were variously armed. Rajeev Kumar had
a Katta in his hand and rest of the accused
persons were armed with lathi and danda.
Rajeev Kumar and Vinay broke the lock
of the godown of the informant, looted his
687 bottles of Pepsi soft drink, snatched
away his golden chain and Rs.213/- from
the pocket of his shirt. The informant
received injuries in the incident and got
himself medically examined at PHC on
10.1.2002. On alarm being raised by the
informant Hari Om, Titu and many others
rushed to the spot and saved the
informant. As the report of the informant
892 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
was not recorded by the police hence he
filed an application before the higher
officers alongwith his injury report but all
in vain, therefore, he filed an application
before the SSP, Bulandshahr and at his
instance the FIR of the informant was
registered against the culprits. A copy of
the said FIR is annexure 1 to the affidavit
filed in support of this application. The
medical
examination
report
of
the
informant
has
not
been
annexed
alongwith the present application by the
applicants. The police of Police Station
Dibai, after the investigation submitted a
Final Report in the crime vide annexure 2
to this application. The protest petition of
the informant dated 17.9.2002 in the said
F.R. Case No. 17 of 2002 was treated as
complaint by the Additional CJM, Anoop
Shahar titled as Manoj Kumar Versus
Rajeev Kumar and others. The statement
of the informant was recorded u/s 200
Cr.P.C. and that of his witnesses Hari
Om, Dr. Awadh Bihari, Hari Shankar
Varshney and constable Deep Chand
Singh u/s 202 Cr.P.C. All the above
witnesses
supported
the
informant's
version in all material particulars. Dr.
Awadh Bihari stated that he had examined
the injured Manoj Kumar on 10.1.2002 at
4 P.M. and he had received four injuries.
Additional Chief Judicial Magistrate vide
his order dated 29.8.2003 summoned the
present
applicants
for
the
offences
mentioned above. Accused filed an
application for granting time but their
application was rejected on 15.12.2003.
Aggrieved by the both the above orders
dated 29.8.2003 and 15.12.2003, the
applicant accused Pradeep Kumar filed a
revision before the Sessions Judge,
Bulandshahr being criminal revision no.
71/04.
Additional
Sessions
Judge,
Bulandshahr vide his judgment and order
dated 25.7.2005 (annexure 8) remanded
the matter back with a direction that one
of the offences was triable by court of
sessions and the Magistrate had not
followed the procedure provided under
proviso to section 202 (2) Cr.P.C.
therefore, he directed the Magistrate to
record the statement of witness Titu s/o
Danveer and then pass a reasoned order in
accordance with law on the complaint of
the respondent no. 2. After the receipt of
the record, the trial court by his orderdated 16.8.2005 (annexure 9) again
summoned the applicants as accused for
the offences u/s 147,148,149323,504,506
and 395 IPC. In the summoning order the
Magistrate
has
observed
that
after
receiving the record from the lower
revisional court, witness Titu had filed an
application alongwith an affidavit that he
had been wrongly named as a witness in
the aforesaid case and the informant had
also filed an application that since Titu
had connived with the accused persons,
therefore, the informant respondent no. 2
did not rely on his testimony and
therefore, Titu be discharged. In this
backdrop since the complainant did not
rely upon the witness Titu, therefore the
Magistrate, on the material available on
the record, had passed the summoning
order
on
18.6.2005
(annexure
9).
Aggrieved by the summoning order
(annexure
9)
the
present
accused
applicants preferred a revision being
criminal revision no. 482/05 which was
heard and rejected by the Additional
Sessions Judge/Special Judge E.C. Act,
Bulandshahr vide order dated 4.2.2006
(annexure 10). Therefore this application
for setting aside the impugned orders as is
mentioned in the opening part of this
judgment.

3. I have heard Sri Ram Babu
Sharma learned counsel for the applicant,
2 All] Pradeep Kumar and others V. The State of U.P. and another
893
Sri T.B. Islam and Sri M.K. Gupta
learned counsels for the respondent no. 2
complainant and learned AGA at great
length and have gone through the record.

4. Sri Ram Babu Sharma learned
counsel for the applicants contended that
the Magistrate must examined all the
witnesses and since the evidence of Titu
was not recorded by him, therefore the
impugned summoning order as well as
revisional court's order, deserves to be
quashed. He further contended that at the
stage of summoning the Magistrate must
look into the evidence of witnesses, who
had not support the complainant and since
the independent witness did not come
forward to support the complainant
respondent no. 2, therefore, proceedings
should be quashed. He lastly but halfheartedly contended that proceedings are
malafide and deserves to be quashed.

5.

Learned
counsel
for
the
respondent no. 2 and learned AGA,
contrarily, submitted that there was no
need for the Magistrate to record the
statement of Titu since he was not the
witness of the complainant and the
complainant had discharged him. They
contended that under the proviso to
section 202 (2) Cr.P.C. the complainant is
obliged to examine only those witnesses,
on whom he places reliance. They further
contended that since proceeding is not
malafide and in any view of the matter
cognizable offences are disclosed against
the present applicants, therefore, they
must be prosecuted. They also contended
that the prosecution cannot be nipped into
the bud as cognizable offences are
disclosed and disputed question of facts
can not be adjudicated upon u/s 482
Cr.P.C.
to
thwart
the
legitimate
prosecution. They further contended that
the present application is devoid of merit
and deserves to be rejected.

6. Considering the first contention of
the learned counsel for the applicants I
find no merit in it. The proviso to section
202 (2) Cr.P.C. reads thus:-

"Provided that if it appears to the
Magistrate that the offence complained
of is triable exclusively by the court of
Sessions,
he
shall
call
upon
the
complainant to produce all -------------
witnesses and examine them on oath."

7. A bare reading of the said
proviso indicates that u/s 202 (2)
Cr.P.C. the complainant is obliged to
examine all his witnesses if the offence
is triable by court of Sessions. The
connotation "all his witnesses" means
only those witnesses on whom the
complainant places reliance. If he does
not place reliance on any witness, then
he is not obliged to examine that
witness under the aforesaid proviso.
Any witness on whom the complainant
does not places reliance is not "his
witness". It is not the mandate of law
that the complainant should examine
even those witnesses on whom he does
not rely and to whom he does not want
to produce before the court in support
of
his
allegations
made
in
the
complaint.

8. Learned counsel for the applicants
has placed reliance on the judgment
reported in 2005 (53) ACC page 218 Sat
Pal and others versus State of U.P. and
others. In the aforesaid judgment it has
nowhere been held that the complainant is
obliged to examine even those witnesses,
on whom he does not place reliance and
which are not his witnesses. The apex
894 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
court in 2000 (40) ACC 444 Rosy and
another versus State of Kerala and
others has held:

I wish to add that the Magistrate in
such a situation is not obliged to
examine witnesses who could not be
produced by the complainant when
asked to produce such witnesses.........I
reiterate that if the Magistrate omits to
comply with the above requirement that
would
not,
by
itself,
vitiate
the
proceedings."

9. Further, in the case of Satpal
(supra), this court has also held that unless
and until prejudice is caused to the
applicant no proceeding can be quashed,
merely because of non-examination of
some of the witnesses by the complainant
on whom he does not repose trust and
does not want to examine during the trial.
Thus the aforesaid judgment is of no help
to the present applicants and the first
contention of the learned counsel for the
applicant being contrary to the enactment
itself is merit less and is consequently
rejected.

10. Considering to the second
contention of the learned counsel for the
applicants that the Magistrate, at the stage
of summoning, should also take into
consideration the fact that the independent
witness
had
not
supported
the
complainant's version and therefore he
should not summon the accused is
concerned, the same also does not have
any substance in it. At the stage of
summoning under section 204 Cr.P.C. the
Magistrate is required only to see as to
whether any triable offence is made out
from the complaint and the statements
recorded u/s 200 and 202 Cr.P.C. or not?
At that stage his power does not travel
beyond that scope. This view is no longer
res integra and has been cemented by
volumes of decisions of both by this court
as well as apex court. The contention of
the learned counsel for the applicants thus
is de horsed the law and is hereby
rejected.

The last contention of the learned
counsel for the applicants is that the
proceeding is malafide and deserves to be
quashed. This submission also does not
hold good. Since cognizable offence is
disclosed by the evidence produced by the
complainant respondent no. 2, in the
present case, therefore, there is no reason
to dub the prosecution as malafide. The
disclosure of the cognizance offence on
the facts of the case by itself is an ample
proof of the fact that the prosecution is
not malafide. Thus this argument of the
learned counsel for the applicants is also
merit less and is rejected. There was no
other point, which has been urged by the
learned counsel for the applicants.

In view of what has been stated
above, I do not find any merit in this
application, which is liable to be rejected.

This application is rejected. Stay
order granted by this court on 20.2.2005
is hereby vacated.

Let a copy of this order shall be sent
to the trial court within a period of one
week from today for further action.
Application Rejected.
---------
2 All] Raju Tyagi V. State
895
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.07.2006

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.K. MISRA, J.

Criminal Jail Appeal No. 4263 of 2004

Raju Tyagi

...Appellant (In Jail)
Versus
State

...Respondents

Counsel for the Appellant:
Sri Samit Gopal

Counsel for the Respondent:
Miss. N.A. Moonis
A.G.A.

Indian Penal Code-offence under section
394,302,411 and 25 Arms Act-Trail Court
acquitted the co-accused but held guilty
to the appellant under Section 394 IPCPunishment
to
undergo
life
imprisonment
awarded-eye
witness
himself is informant-who supported the
prosecution version-can not be discarded
as
the
other
eye-witnesses
turned
hostile.
Held-conviction
can
not
be
assailed.

Held: Para 13

It is well settled that if an eye-witness
who himself was the informant of the
case supports the prosecution case as
given in the F.I.R., his evidence cannot
be discarded only due to the fact that all
other eye-witnesses named in the F.I.R.
have
turned
hostile.
Moreover,
the
statement of the hostile witness is not
always to be discarded in totally. The
statement of the hostile witnesses can
be
taken
for
corroboration
of
the
evidence given by the other witnesses.
In the present case, we find that the
statement
of
P.W.
4
Goving
finds
corroboration from the statement of the
hostile witnesses in great deal as to
time, place and manner of happening.
The
conviction
of
the
appellant,
therefore, cannot be assailed on the
ground
of
the
hostility
of
some
witnesses.

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

1. This appeal arises out of the
judgment and order dated 17.3.2004
passed by Sri Vishram Singh, Addl.
District & Sessions Judge, Bulandshahr
convicting the appellant Raju Tyagi under
section 394 IPC and sentencing him to
undergo life imprisonment.

2. As per the F.I.R. lodged by
Subhash Chandra Verma on 18.8.2000 at
9.05 A.M. there was a shop of jewellery
comprised in his house in town Gulaothi.
On 18.8.2000 at about 8.30 A.M., his
nephew Sachin was cleaning the shop.
Three miscreants came at the shop armed
with country made pistols and started
looting the ornaments. When he resisted,
the miscreants assaulted him with the
butts of the pistols and also fired a shot.
On hearing the sound of the firing and
cries, Sachin's mother rushed to the shop.
The miscreants also gave her beating and
escaped
with
the
gold
and
silver
ornaments and Rs.3000/- in cash. On
hearing the cries, a mob chased them.
When the miscreants reached near the Bus
Stand, the miscreants opened fire and
shot-dead Manohar Lal. The mob killed a
miscreant and caught hold of another
(Raju Tyagi present appellant) and
handed him over to police. One miscreant
succeeded
in
escaping.
The
looted
material consisted of ornaments made of 2
Kgs. Silver and 5 gms. gold. Besides this,
Rs.3000/- case was also looted.

3. Another F.I.R. was lodged by
Govind stating that his brother Manohar