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

- **Citation:** (2024) 8 ILRA 623
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-06
- **Case number:** Application U/s 482 No. 9885 of 2024
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-ors-v-state-of-u-p-anr-52418
- **Pages:** 7

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections
323,
427

&
504summoning order-handling of rival NCRsfiling of chargesheet-Subsequent criminal
complaint-the
present
case
revolves
around
the
legal
representation
and
procedural handling of rival NCRs (Non
Cognizable
Reports)
and
subsequent
criminal
complaints
under
IPC-It
examines
the
court
discretion
in
summoning the accused under additional
sections of the IPC based on the evidence
presented in both the NCRs and the
subsequent complaint-In this case, the
learned Magistrate while passing an order
u/s 204 CrPC was not aware about factum
of filing of a charge sheet for noncognizable offence in pursuance of an
investigation conducted on NCR against 4
applicants and the same has not been
disclosed in statements recorded u/s 202
CrPC-learned magistrate failed to take
note of filing of NCR and its outcome -
Hence, impugned order set aside-Matter
remanded back to decide afresh.(Para 1 to
15)

B. Upon similar set of facts as well as on
similar set of allegations, proceedings
arising out of police report as well as
proceedings of complaint case could not
proceed together if they are instituting by
misleading the court and abusing its
process of law only with a view to harass
the helpless litigants. However, in the
present case, the conduct of complainant
was bonafide and has no malice and he
has
come
up
with
clean
hands
-
complainant has specifically stated about
lodging of NCR in the complaint and
essentially it was the reason to file
complaint since no FIR was lodged.( Para
11)

The application is disposed of. (E-6)

List of Cases cited:

## Text

8 All. Prakash & Ors. Vs. State of U.P. & Anr.
623
17. The rule of construction is well
settled. A Court cannot construe a section
of statue with reference to that of another
unless the latter is in pari materia with the
former.

18. Both the Acts, indicated above,
are in pari materia i.e. statues dealing with
the same subject matter or forming part of
the same system, except the underlined
portion(s). These underlined portion(s) do
not play any role in determining the
exercise
of
power
under
the
said
provision(s), which deals with preventive
actions.

19. Thus, in view of above, the
principles settled in the judgments, referred
above, would also apply in relation to the
proceedings related to the above referred
provision(s) of BNSS.

20. Hence, any deviation from the
established principles is not required.

21. In the considered opinion of
the Court, when the law requires the
Magistrate to apply his mind, then there has
to be a due application of mind. The
manner in which the notice has been
issued, it clearly transpires that it has been
prepared by some person of the office of
the Sub Divisional Magistrate, (Sidhauli),
Sitapur and thereafter he put his signatures
and the notice has got issued. This practice
is reprimanded. It is expected that the Sub
Divisional Magistrate, (Sidhauli), Sitapur,
shall apply his mind as required in law
before issuing notice under Section 130 of
BNSS for taking appropriate action under
Section 126/135 of BNSS.

22. The notice/order appears to be
on printed proforma and on a pointed query
being made to the learned Additional
Government Advocate, he could also not
justify the notice.

23. Having considered the above
including the observations made in the
judgment(s) referred above as also that the
impugned notice/order which appears to be
a printed proforma, the notice/order dated
27.07.2024 issued by the Sub Divisional
Magistrate, (Sidhauli), Sitapur, is hereby
quashed.

24.

Accordingly,
present
application is allowed.

25. Magistrate concerned shall be
at liberty to issue a fresh notice/order under
Sections 126/135 BNSS in accordance of
law.

26. The Court records the
assistance given by Ms. Urmish Shankar,
Research Associate, attached with me in
this judgment and finding out case laws
applicable in the present case.

27.

Office
is
directed
to
communicate this order to the Magistrate
concerned forthwith.
----------
(2024) 8 ILRA 623
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/s 482 No. 9885 of 2024

Prakash & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
624 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Mayank Pratap Singh

Counsel for the Respondent:
Sri Dharmendra Pratap Singh, G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections
323,
427

&
504summoning order-handling of rival NCRsfiling of chargesheet-Subsequent criminal
complaint-the
present
case
revolves
around
the
legal
representation
and
procedural handling of rival NCRs (Non
Cognizable
Reports)
and
subsequent
criminal
complaints
under
IPC-It
examines
the
court
discretion
in
summoning the accused under additional
sections of the IPC based on the evidence
presented in both the NCRs and the
subsequent complaint-In this case, the
learned Magistrate while passing an order
u/s 204 CrPC was not aware about factum
of filing of a charge sheet for noncognizable offence in pursuance of an
investigation conducted on NCR against 4
applicants and the same has not been
disclosed in statements recorded u/s 202
CrPC-learned magistrate failed to take
note of filing of NCR and its outcome -
Hence, impugned order set aside-Matter
remanded back to decide afresh.(Para 1 to
15)

B. Upon similar set of facts as well as on
similar set of allegations, proceedings
arising out of police report as well as
proceedings of complaint case could not
proceed together if they are instituting by
misleading the court and abusing its
process of law only with a view to harass
the helpless litigants. However, in the
present case, the conduct of complainant
was bonafide and has no malice and he
has
come
up
with
clean
hands
-
complainant has specifically stated about
lodging of NCR in the complaint and
essentially it was the reason to file
complaint since no FIR was lodged.( Para
11)

The application is disposed of. (E-6)

List of Cases cited:
1. Krishna Lal Chawla & anr. Vs. St. of U.P. &
anr. (2021) 5 SCC 435

2. Kapil Agarwal & ors. Vs. Sanjay Sharma &
ors. (2021) 5 SCC 524

3. Prem Nath Mishra & ors. Vs St. of U.P. & anr.
2024: AHC: 124406

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. In the present case, on basis of
alleged
occurrence
took
place
on
10.07.2016, complainant has lodged an
NCR on 11.08.2016 i.e. about 1 month
against Prakash, Manoj, Raja Babu and
Bintu (applicants no. 1 to 3 and 6) for
offence under Sections 323, 504, 427 IPC.

2. The complainant thereafter has
filed an application under Section 155(2)
Cr.P.C. for investigation disclosing names
of all six applicants and that they have
committed offences under Sections 323,
504, 427 IPC wherein vide order dated
16.08.2016, a direction was passed for
investigation. Consequently investigation
was conducted on above referred NCR and
a
charge
sheet
was
submitted
on
03.01.2017
against
above
referred
4
applicants under Sections 323, 504, 427
IPC.

3. The trial Court considered
above referred charge sheet as a complaint
under provisions of Section 2(d) Cr.P.C.
and summoned above referred 4 applicants
under Sections 323, 504, 427 IPC vide
order dated 18.03.2017.

4. Controversy involved in present
case arose when before above referred
charge sheet was filed on 03.01.2017, the
complainant
approached
Court
of
a
Magistrate by way of filing a criminal
8 All. Prakash & Ors. Vs. State of U.P. & Anr.
625
complaint on 17.09.2016 not only above
referred 4 applicants but other two
applicants (applicants no. 4 and 5) that they
were involved in above referred occurrence
allegedly took place on 10.07.2016 and
have committed cognizable offence under
Sections 452, 323, 504, 506, 427 IPC. In
complaint, factor of filing NCR was
disclosed with an allegation that correct
facts and name of all assailants were not
correctly recorded.

5. In aforesaid complaint, learned
Magistrate
recorded
statement
of
complainant and witnesses respectively
under Section 200 and 202 Cr.P.C. (on
09.12.2016, 21.01.2017 and 17.07.2018)
and thereafter vide order dated 16.11.2018
passed
under
Section
204
Cr.P.C.
summoned all applicants to face trial for
offence under Sections 452, 323, 504, 506,
427 IPC. It would be relevant to refer here
that statement of complainant Nawab Singh
and witness Kunwar Singh were earlier
recorded by police during investigation of
NCR but this fact was not disclosed in their
subsequent statement recorded in criminal
complaint case as well as they have
disclosed involvement of only 4 applicants
therein.

6. Applicants being aggrieved by
above summoning order have filed a
revision petition mainly on ground that on
same occurrence, complainant has already
filed an NCR wherein name of only 4
applicants were mentioned for committing
non-cognizable
offence,
on
which
investigation was conducted and a charge
sheet under non-cognizable offence against
only 4 applicants was filed and which was
treated as a complaint case and summons
were
issued.
Aforesaid
facts
were
suppressed at least during arguments and
trial Court has also not taken endeavour to
call a report on it and erroneously
summoned the applicants.

7. In support of above grounds, Sri
Rishi Bhushan Johari, Advocate holding
brief of Sri Mayank Pratap Singh, learned
counsel for applicants has placed reliance
on Krishna Lal Chawla and others vs.
State of U.P. and others, (2021) 5 SCC
435 and Kapil Agarwal and others vs.
Sanjay Sharma and others, (2021) 5 SCC
524 that filing of multiple complaints for
similar alleged occurrence by improving
earlier version, would be considered as
abuse of process of law.

8. Sri Dharmendra Pratap Singh,
learned counsel for opposite party-2 and
learned AGA for State have not disputed
aforesaid facts on basis of record but they
submitted that there is no legal bar in
lodging NCR and complaint case on same
occurrence and in such event, procedure
prescribed under Section 210 Cr.P.C. would
be applicable.

9. Heard learned counsel for
parties and perused the record.

10. As referred above, it is not
disputed that on basis of same occurrence,
two proceedings were initiated, one arising
out of charge sheet filed on basis of noncognizable
report
wherein
after
investigation, a charge sheet was filed for
non-cognizable offence and proceedings
were commenced as per Section 2(d)
Cr.P.C. and another on basis of a complaint
case wherein after statement recorded
under Sections 200 and 202 Cr.P.C.
summons were issued against all applicants
for committing cognizable offence.

11. Issue involved in present case
has recently been considered by this Court
626 INDIAN LAW REPORTS ALLAHABAD SERIES
in a judgment passed in the case of Prem
Nath Mishra and others vs. State of U.P.
and another,
2024:AHC:124406
and
relevant paragraphs thereof being relevant
are quoted below -:

"6. Sri Deepak Upadhyay,
learned counsel for applicants has
heavily placed reliance on Krishna
Lal Chawla and another vs. State
of U.P. and another, (2021) 5 SCC
435 that on similar set of facts as
well as on similar set of allegations,
proceedings arising out of police
report as well as proceedings of
complaint case could not proceed
together if they are instituting by
misleading the Court and abusing
its process of law only with a view
to harass the helpless litigants and
relevant paragraphs thereof are
quoted below -:
"23. As aforesaid, the trial
courts and the Magistrates have an
important role in curbing this
injustice. They are the first lines of
defence for both the integrity of the
criminal justice system, and the
harassed and distraught litigant. We
are of the considered opinion that
the trial courts have the power to
not merely decide on acquittal or
conviction of the accused person
after the trial, but also the duty to
nip frivolous litigations in the bud
even before they reach the stage of
trial by discharging the accused in
fit cases. This would not only save
judicial time that comes at the cost
of public money, but would also
protect the right to liberty that
every person is entitled to under
Article 21 of the Constitution. In
this context, the trial Judges have
as much, if not more, responsibility
in safeguarding the fundamental
rights of the citizens of India as the
highest court of this land.
24. As
recorded
by
us
above, the present controversy
poses
a
typical
example
of
frivolous litigants abusing court
process
to
achieve
their
mischievous ends. In the case
before us, the Magistrate was aware
of the significant delay in the filing
of private complaint by Respondent
2,
and
of
the
material
improvements from the earlier
NCR No. 158 of 2012 which were
made in the private complaint. It
was incumbent on the Magistrate to
examine any possibility of abuse of
process of the court, make further
enquiries, and dismiss the frivolous
complaint
at
the
outset
after
judicial application of mind.
25. However, this was not
done - the Magistrate issued
process against the appellants by
order dated 4-4-2019, and this
controversy has now reached this
Court for disposal.
26. It is a settled canon of
law that this Court has inherent
powers to prevent the abuse of its
own processes, that this Court shall
not suffer a litigant utilising the
institution of justice for unjust
means. Thus, it would be only
proper for this Court to deny any
relief to a litigant who attempts to
pollute the stream of justice by
coming to it with his unclean
hands. Similarly, a litigant pursuing
frivolous
and
vexatious
proceedings cannot claim unlimited
right upon court time and public
money to achieve his ends.
8 All. Prakash & Ors. Vs. State of U.P. & Anr.
627
27. This Court's inherent
powers under Article 142 of the
Constitution
to
do
"complete
justice" empowers us to give
preference to equity and a justiceoriented approach over the strict
rigours of procedural law (State of
Punjab v. Rafiq
Masih [State
of
Punjab v. Rafiq Masih, (2014) 8
SCC 883 : (2014) 4 SCC (Civ) 657
: (2014) 6 SCC (Cri) 154 : (2014) 3
SCC (L&S) 134] ). This Court has
used this inherent power to quash
criminal proceedings where the
proceedings are instituted with an
oblique motive, or on manufactured
evidence (Monica Kumar v. State
of U.P. [Monica Kumar v. State of
U.P., (2008) 8 SCC 781 : (2008) 3
SCC (Cri) 649] ). Other decisions
have held that inherent powers of
High Courts provided in Section
482 CrPC may be utilised to quash
criminal
proceedings
instituted
after great delay, or with vengeful
or
mala
fide
motives.
(Sirajul v. State
of
U.P. [Sirajul v. State of U.P., (2015)
9 SCC 201 : (2015) 3 SCC (Cri)
749] ; State of Haryana v. Bhajan
Lal [State
of
Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426 : AIR 1992 SC 604]
.) Thus, it is the constitutional duty
of this Court to quash criminal
proceedings that were instituted by
misleading the court and abusing
its processes of law, only with a
view to harass the hapless litigants.
28. In this Court's quest for
complete justice, and to bring peace
between the parties, who are
fighting various litigations since
2006, we exercise our powers
under Article 142 to quash all the
litigations
between
the
parties
arising out of this incident."
9. It is not much in dispute
that on basis of alleged occurrence,
complainant has first filed an NCR
wherein after investigation, charge
sheet was filed for non-cognizable
offence and trial Court considered
it to be a complaint case under
Section 2(d) Cr.P.C. and summons
were issued to applicants for
offence u/s 323 and 504 IPC.
10. After charge sheet was
filed and before summons were
issued, complainant has filed a
criminal complaint disclosing facts
of NCR that applicants have
committed cognizable offence and
trial Court vide impugned order,
after considering statement u/s 200
and 202 Cr.P.C. has summoned the
applicants for offence u/s 323, 504,
506 and 452 IPC.
11. Court takes note of
Krishna Lal Chawla (supra) that
multiple proceedings on same set
of facts could not be proceeded
further and it could be quashed if
they are attended with malafide and
initiated only to harass accused
persons.
12. In present case, there is
no argument on behalf of learned
counsel
for
applicants
that
impugned passed u/s 204 Cr.P.C.
itself is illegal as no requisite
reason was assigned that there are
sufficient
grounds
to
proceed
against applicants as well as that it
was not based on material available
on record i.e. complaint, statement
recorded u/s 200 and 202 Cr.P.C.
Relevant part of impugned order
has
already
been
quoted
in
preceding paragraph.
628 INDIAN LAW REPORTS ALLAHABAD SERIES
13. In the present case,
complainant has specifically stated
about lodging of NCR in the
complaint and essentially it was
reason to file complaint since no
FIR was lodged. The applicants
have not brought on record before
trial Court about factum of filing
charge sheet for non-cognizable
offence in pursuance of NCR and
that it was treated as a complaint
case under Section 2(d) Cr.P.C. The
conduct
of
complainant
was
bonafide and has no malice as he
has come up with clean hands.
14. Legal error committed
by trial Court is that despite being
aware that an NCR was already
lodged. No police report was
summoned to ascertain outcome of
NCR and facts thereof only on
ground that on some set of
allegations, both NCR/FIR and
criminal complaint was filed, itself
would not be a malafide approach
rather the Court has to look into
attending
circumstances
to
ascertain whether it was a creature
of malafide which is not evident in
present case."

12. In present case also, the
learned Magistrate while passing an order
under Section 204 Cr.P.C. was not aware
about factum of filing of a charge sheet for
non-cognizable offence in pursuance of an
investigation conducted on NCR against 4
applicants and same has not been disclosed
in statements of witnesses recorded under
Section 202 Cr.P.C. though in the statement
recorded
under
Section
200
Cr.P.C.,
complainant has disclosed about fact of
lodging NCR with a contention that it was
not rightly recorded. The advocate who has
argued for summoning has also not
disclosed status, though prior to impugned
order, four applicants were summoned in
complaint
case
(under
Section
2(d)
Cr.P.C.), possibly learned counsel was not
properly instructed. For reference, order
passed under Section 204 Cr.P.C. on
16.11.2018 is quoted below -:

"16-11-2018
पररवाद की यह पत्राविी आदेर् हेतु पेर्
हुई। पूवश बनयत बदनांक पर पररवादी के बवद्वान अबिवक्ता
को सुना जा चुका है, आदेर् हेतु पत्राविी का
अविोकन बकया।
पररवाद में त्य संक्षेप में इस प्रकार हैं बक
बदनांक 10-07-2016 को समय करीि 11-00
िजे पररवादी अपने घर पर था बक तिी पडाेेसी
प्रकार् पररवादी की पत्नी से गुपचुप तरीके से िात कर
रहा था। प्रकार् से पररवादी ने पूछा बक तुम मेरी पत्नी से
क्या िात कर रहे हो तो इतना सुनते ही प्रकार् उसे गन्दी
गन्दी गाबियों देते हुए चिा गया और थोडी देर िाद
समय 11-30 िजे प्रकार् अपने िाईयों मनोज,
राजािािू, दीपक, वीरेन्र व बिन्दू के साथ एकराय मश्वरा
होकर उसके घर में गन्दी गन्दी गाबियों देते हुए घुस
आया और िात मुक्कों, िाठी डडडा व सररया से
मारपीर् करने िगे। बवपक्षीगण ने उसकी जेि से मोिाइि
बनकाि कर तोड बदया। चीख पुकार कुूँवर चौिरी,
तेजवीर आबद काफी िोग मौके पर आ गए, बजन्होंने
घर्ना देखी और उसे िचाया। बवपक्षीगण जान से मारने
की िमकी देते हुए चिे गए।
पररवाबदनी ने अपने कथनों के समथशन में
स्वंय को तथा तारा 202 द०प्र०सं० के अन्तगशत
साक्षीगण कुमर चौिरी व श्यामवीर बसंह का मौबखक
साक्ष्य अंबकत कराया है।
प्रस्तुत मामिे में पररंवाबदनी के द्वारा
बवपक्षीगण पर मुख्य रूप से घर में घुसकर गािी गिौच
कर मारपीर् करने व जान से मारने की िनकी देवे व
जेि से मोवाइि बनकािकर तोड देने का अबियोग
िगाते हुए यह पररवाद प्रस्तुत बकया है।
िारा 200 द०प्र०सं० के ियानों में
पररवाबदनी द्वारा यह कहा गया है बक बवपक्षीगण प्रकार्,
मनोज, राजािािू, दीपक, वीरेन्र व बवन्दू के साथ
एकराय मश्वरा होकर उसके घर में गन्दी गन्दी गाबियां
देते हुए घुस आए और िात मुक्का, िाठी डडडा व
8 All. Udairaj Singh @ Udaiveer & Ors. Vs. State of U.P. & Anr.
629
सररया से मारपीर् करने िगे। उसकी जेि से मोिाइि
बनकाि कर तोड बदया तथा िोगों के आने पर जान से
मारने की िमकी देते हुए चिे गए। इसी प्रकार के त्यों
का उल्िेख पररनादी की ओर से परीबक्षत साक्षीगण द्वारा
अपने ियान अन्तगशत िारा 202 द०प्र०सं० में िी
बकया गया है।
बवपक्षीगण के बवरूद्ध पररवादी की ओर से
प्रस्तुत की गई साक्ष्य व साक्षीगण की साक्ष्य के
बवश्लेिण से बवपक्षीगण प्रकार्, मनोज, राजािािू,
दीपक, वीरेन्र व बिन्दू के बवरूद्ध िारा 452, 323,
504, 506 व 427 िा०द०सं० का अपराि िनना
प्रथम दृष्टया प्रतीत हो रहा है। तदानुसार अबियुक्तगण
प्रकार्, मनोज, राजािािू, दीपक, वीरेन्र व बिन्र्ू उक्त
अपराि में तिि बकए जाने योग्य हैं।"

13. In present case, arguments
were on legal issue and no argument was
submitted that impugned order was legally
incorrect on basis of statements recorded
under Section 200 and 202 Cr.P.C. and that
there was no sufficient grounds to proceed.

14. The contents of above referred
impugned
order
shows
that
learned
Magistrate has absolutely not taken note of
filing of NCR and its outcome as well as
not taken step or endeavour to ascertain it.
It is also apparent that before Revisional
Court also, specific legal and factual issues
were not properly raised.

15. In aforesaid circumstances,
orders dated 20.01.2024 passed in Criminal
Revision No. 390 of 2023 (Prakash and
others vs. State of U.P. and another) by
learned Sessions Judge, Aligarh as well as
summoning order dated 16.11.2018 passed
by learned ACJM, Court-3, Aligarh in
Complaint Case No 3240 of 2016 (Nawab
Singh vs. Prakash Singh and others) under
Sections 452, 323, 504, 506, 427 IPC,
Police
Station-
Harduaganj,
District-
Aligarh are hereby set aside and matter is
remitted back to concerned Revisional
Court to pass a fresh order after taking note
of judgments of Krishna Lal Chawla
(supra) and Kapil Agarwal (supra) as
well as Prem Nath Mishra (supra) as well
as record of Case No. 477/2017 (State vs.
Prakash and others) u/s 323, 504, 427 IPC,
Police
Station-
Harduaganj,
DistrictAligarh within 3 months after hearing the
complainant only.

16. Application is, accordingly,
disposed of.

17. Registrar (Compliance) to take
steps.
----------
(2024) 8 ILRA 629
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/s 482 No. 10408 of 2024

Udairaj Singh @ Udaiveer & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Amitrana

Counsel for the Respondent:
G.A., Nagendra Pratap Singh

Criminal
Law-The
Indian
Penal
Code,1860-Section 307- The Evidence Act1872-Section 72 - The Code of Criminal
Procedure-1973-Section
204-
The
Magistrate
who
is
conducting
an
investigation himself under the procedure
as provided under Cr.P.C. for complaint
case is not so handicapped that even it
could not look the material annexed along
with
charge
sheet,
specifically
a