# Rajeev Gupta v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-20
- **Case number:** Application U/S 482 No. 5289 of 2020
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-gupta-v-state-of-u-p-anr-45750
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code (2
of 1974)- Section 204- Section 482 -
Indian Penal Code (45 of 1860) , Section
376D- Section 506 - Issuance of process - At
the
time
of
passing
summoning
order,
Magistrate is only required to see prima facie
evidence and sufficient ground for proceeding -
allegation levelled against accused can be
adjudicated
only after
the evidence and
truthfulness of allegation cannot be considered
in the proceeding under Section 482 Cr.P.C.
before High Court.

Informant supported prosecution case in her
statement stated that accused applicant along
with other co-accused committed rape with her
- Smt. Shakuntala (mother) and Ishwari Devi
u/s 202 supported the case that accused Rajeev
and Prashant took victim with them by Car on
the pretext that her brother was seriously ill &
that victim told them on returning that accused
applicant and other co - accused committed
rape with her - prima facie case against
accused-applicant
made
out-
Application
dismissed (Para 4, 17)

Application dismissed. (E-5)

List of case cited :

1.St. of Haryana & ors. Vs Ch. Bhajan Lal & ors.
(1992) Supp 1 SCC 335

2.Iridium India Telecom Ltd. Vs Motorola
Incorporated & ors. (2011) 1 SCC 74

3.PriyaVrat Singh & ors. Vs Shyam Ji Sahai
(2008)
8
SCC
232
110 INDIAN LAW REPORTS ALLAHABAD SERIES
4.M/s Eicher Tractor Ltd. & ors. Vs Harihar
Singh & ors. 2009 (64) ACC 296

5.Anil Arya Vs St. of U.P. & ors. Crl. Rev. No.
1216 of 2005 Dt 09.09.2016

6.Md. Allauddin Khan Vs St. of Bihar & ors.
(2019) 6 SCC 107

7.St. of Haryana & ors. Vs Bhajan Lal & ors.
(1992) Supp (1) SCC 335

## Text

6 All. Rajeev Gupta Vs. State of U.P. & Anr.
109
the view that the court below has not found
any substance in the prosecution case and
he has rightly rejected the application of the
applicant, which has been treated as
complaint case, on the basis of enquiry
report submitted by the Police and the
report of the medical board submitted by
the Chief Medical Officer, wherein it has
been mentioned that due to septicemia,
ARDS
(Acute
Respiratory
Distress
Syndrome), Fever Multi Organ Failure,
husband of the applicant had expired. The
appellate court has also rightly rejected the
appeal filed by the applicant and affirmed
the order of the concerned Magistrate. Both
the courts below have not committed any
error while passing the impugned orders.
The court below have recorded pure
finding of fact after relying upon the
judgment of the Apex Court in the case of
Jacob Mathew Vs. State of Punjab &
Others
(Criminal
Appeal
No.
144145/2004, decided on 5th August, 2005).
Thus, the complaint of the applicant has
rightly been rejected by the court below
under the order impugned.

14. In light of above facts, this Court
is of the view that both the orders
impugned do not warrant any interference
by this Court under Section 482 Cr.P.C. The
present
application
lacks
merit
and
deserves to be dismissed. It is accordingly
dismissed.
----------
(2020)06ILR A109
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Application U/S 482 No. 5289 of 2020

Rajeev Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anmol Tiwari, Sri S.K. Tiwari

Counsel for the Opposite Parties:
A.G.A.

Criminal Law - Criminal Procedure Code (2
of 1974)- Section 204- Section 482 -
Indian Penal Code (45 of 1860) , Section
376D- Section 506 - Issuance of process - At
the
time
of
passing
summoning
order,
Magistrate is only required to see prima facie
evidence and sufficient ground for proceeding -
allegation levelled against accused can be
adjudicated
only after
the evidence and
truthfulness of allegation cannot be considered
in the proceeding under Section 482 Cr.P.C.
before High Court.

Informant supported prosecution case in her
statement stated that accused applicant along
with other co-accused committed rape with her
- Smt. Shakuntala (mother) and Ishwari Devi
u/s 202 supported the case that accused Rajeev
and Prashant took victim with them by Car on
the pretext that her brother was seriously ill &
that victim told them on returning that accused
applicant and other co - accused committed
rape with her - prima facie case against
accused-applicant
made
out-
Application
dismissed (Para 4, 17)

Application dismissed. (E-5)

List of case cited :

1.St. of Haryana & ors. Vs Ch. Bhajan Lal & ors.
(1992) Supp 1 SCC 335

2.Iridium India Telecom Ltd. Vs Motorola
Incorporated & ors. (2011) 1 SCC 74

3.PriyaVrat Singh & ors. Vs Shyam Ji Sahai
(2008)
8
SCC
232
110 INDIAN LAW REPORTS ALLAHABAD SERIES
4.M/s Eicher Tractor Ltd. & ors. Vs Harihar
Singh & ors. 2009 (64) ACC 296

5.Anil Arya Vs St. of U.P. & ors. Crl. Rev. No.
1216 of 2005 Dt 09.09.2016

6.Md. Allauddin Khan Vs St. of Bihar & ors.
(2019) 6 SCC 107

7.St. of Haryana & ors. Vs Bhajan Lal & ors.
(1992) Supp (1) SCC 335

(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri S. K. Tiwari, learned
counsel for applicant, learned AGA for
State and perused the material available on
record.

2. Applicant has invoked jurisdiction
of this Court under Section 482 of the Code
of Criminal Procedure, 1973 (hereinafter
referred to as "Cr.P.C.") challenging the
order dated 31.08.2018, passed by Chief
Judicial Magistrate, Kannauj, in Complaint
Case No. 2386 of 2017, Smt. Neeraj v.
Rajeev Gupta and Another, under Sections
376-D and 506 IPC, Police Station
Chhibramau, District Kannauj along with
entire proceeding of the said case, whereby
applicant has been summoned to face the
trial under the aforesaid Sections.

3. Brief facts giving rise to present
case are that the complainant-Smt. Neeraj
moved an application under Section 156(3)
Cr.P.C. before the CJM concerned stating
that on 4.9.2016, at about 7:30 pm, accused
Rajeev Gupta and his friend Prashant came
to her house by Car with driver and told
that her brother was ill believing them she
went with them by Car. They reached near
Akbarpur stopped the Car at lonely place
and accused persons Rajeev and Prashant
molested her, put off her clothes by force
and committed rape and took Rs. 9,000/-
from her purse. Accused persons extended
threat to kill her brother, if any complaint is
made to anywhere. On the application of
Informant, a Case Crime No. 99 of 2017
under the aforesaid sections in the Police
Station concerned was registered. Matter
was investigated by Investigating Officer
who
submitted
final
report.
Protest
application was made by Informant on the
Final
Report
(FR)
submitted
by
Investigating Officer, came to be registered
as complaint case. Trial Court proceeded to
record the statement of prosecutrix under
Section 200 Cr.P.C. and statement of
Shakuntala Devi (her mother) and Ishwari
Devi under Section 202 Cr.P.C., found
prima facie evidence and sufficient ground
for proceedings, summoned the present
applicant to face the trial under the
aforesaid Sections by impugned order dated
31.8.2018, which is under challenge.

4. Informant herself supported the
prosecution case in her statement under
Section 202 Cr.P.C. and mainly stated that
accused applicant along with other coaccused committed rape with her and took
Rs.
9,000/-
from
her
purse.
Smt.
Shakuntala
and
Ishwari
Devi
also
supported the case before them that
accused Rajeev and Prashant took victim
with them by Car on the pretext that her
brother was seriously ill. It is further stated
in their statement that victim told them on
returning that accused applicant and other
co-accused committed rape with her.

5. Learned counsel for applicant
submits that the applicant is innocent; he
has committed no offence and has been
falsely implicated in the present case by
complainant. In the matter, Investigating
Officer,
finding
no
evidence
during
investigation submitted final report. It is
further submitted that there is no medical of
6 All. Rajeev Gupta Vs. State of U.P. & Anr.
111
victim, no statement of victim under
Section 164 Cr.P.C., there is no public
witness of incident. It is a counter blast
case
because
applicant
has
filed
a
complaint case against the mother of
complainant prior to the present incident.
Prosecution story is false and fake and
sheer concoction.

6. It is further submitted that from the
allegation made in application under
Section 156(3) Cr.P.C. and from the
statement of victim and her witnesses, no
case under Section 376-D and 506 IPC is
made out but learned counsel for applicant
showed some documents and statements in
support of his contention. Despite repeated
query by the Court whether these papers,
which are being shown before this Court,
have been brought to the notice of
Magistrate before passing the summoning
order or not? He remained silent and could
not satisfy the query of the Court.

7. Learned AGA submitted that Trial
Court, finding prima facie case and sufficient
ground for proceedings against the applicant,
summoned the accused-applicant for facing trial
and all the submissions made by learned
counsel for applicant relates to disputed
question of fact which cannot be adjudged at
this stage under Section 482 Cr.P.C. He further
submitted that defence of learned counsel for
applicant can be considered in Lower Court
after the evidence is produced by both the
parties.

8. I have considered the rival submissions
made by the parties and perused the records.

9. Before I enter into the facts of the
present case it is necessary to consider the ambit
and scope of jurisdiction under Section 482
Cr.P.C. vested in the High Court. Section 482
Cr.P.C. saves the inherent power of the High
Court to make such orders as may be necessary
to give effect to any order under this Code, or to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice.

10. It is settled that the power under
Section 482 Cr.P.C. is not to be exercised in a
routine manner, but it is for limited purposes,
namely, to give effect to any order under the
Code, or to prevent abuse of process of any
Court or otherwise to secure ends of justice.

11. Time and again, Apex Court and
various High Courts, have reminded when
exercise of power under Section 482
Cr.P.C. would be justified, which cannot be
placed in straight jacket formula, but one
thing is very clear that it should not preempt a trial and cannot be used in a routine
manner so as to cut short the entire process
of trial before the Courts below. If from a
bare perusal of first information report or
complaint, it is evident that it does not
disclose any offence at all or it is frivolous,
collusive or oppressive from the face of it,
the Court may exercise its inherent power
under Section 482 Cr.P.C. but it should be
exercised sparingly. This will not include as
to whether prosecution is likely to establish
its case or not, whether the evidence in
question is reliable or not or whether on a
reasonable appreciation of it, accusation
would not be sustained, or the other
circumstances, which would not justify
exercise of jurisdiction under Section 482
Cr.P.C. (See : State of Haryana and
others Vs. Ch. Bhajan Lal and others
1992 Supp (1) SCC 335 and Iridium
India
Telecom
Ltd.
Vs.
Motorola
Incorporated and Ors. 2011 (1) SCC 74.

12. In Priya Vrat Singh and others
vs. Shyam Ji Sahai, 2008 (8) SCC 232,
Court observed that the inherent power
should not be exercised to stifle a
legitimate prosecution. The High Court
112 INDIAN LAW REPORTS ALLAHABAD SERIES
being the highest court of a State should
normally refrain from giving a prima-facie
decision in a case where the entire facts are
incomplete and hazy, more so when the
evidence has not been collected and
produced before the Court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of
course, no hard-and-fast rule can be laid
down in regard to cases in which the High
Court will exercise its extraordinary
jurisdiction of quashing the proceeding at
any stage.

13. In M/s Eicher Tractor Ltd. And
Others v. Harihar Singh and Another,
2009 (64) ACC 296, Court said in para 5 of
the judgment, which reads as under :-

"5. Exercise of power under
Section 482 of the Code in a case of this
nature is an exception and not the rule.
The section does not confer any new
powers on the High Court. It only saves
the inherent power which the Court
possessed before the enactment of the
Code. It envisages three circumstances
under which the inherent jurisdiction may
be exercised, namely, (i) to give effect to
an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay
down any inflexible rule which would
govern
the
exercise
of
inherent
jurisdiction. No legislative enactment
dealing with procedure can provide for
all cases that may possibly arise. Courts,
therefore, have inherent powers apart
from express provisions of law which are
necessary
for
proper
discharge
of
functions and duties imposed upon them
by law. That is the doctrine which finds
expression in the section which merely
recognizes and preserves inherent powers
of the High Courts. All courts, whether
civil or criminal, possess, in the absence
of any express provision, as inherent in
their constitution, all such powers as are
necessary to do the right and to undo a
wrong in the course of administration of
justice on the principle quando lex
aliquid alicui concedit, concedere videtur
id sine quo res ipsa esse non potest (when
the law gives a person anything it gives
him that without which it cannot exist).
While
exercising
powers
under
the
section, the Court does not function as a
court of appeal or revision. Inherent
jurisdiction under the section though
wide has to be exercised sparingly,
carefully and with caution and only when
such exercise is justified by the tests
specifically laid down in the section
itself. It is to be exercised ex debito
justitiae to do real and substantial justice
for the administration of which alone
courts exist. Authority of the court exists
for advancement of justice and if any
attempt is made to abuse that authority so
as to produce injustice, the court has
power to prevent such abuse. It would be
an abuse of process of the court to allow
any action which would result in injustice
and prevent promotion of justice. In
exercise of the powers, court would be
justified to quash any proceeding if it
finds that initiation/continuance of it
amounts to abuse of the process of court
or quashing of these proceedings would
otherwise serve the ends of justice. When
no offence is disclosed by the complaint,
the court may examine the question of
fact. When a complaint is sought to be
quashed, it is permissible to look into the
materials to assess what the complainant
has alleged and whether any offence is
made out even if the allegations are
accepted in toto."
6 All. Rajeev Gupta Vs. State of U.P. & Anr.
113

14. In Anil Arya v. State of U.P. and
Others, Criminal Revision No. 1216 of
2005, decided on 09.09.2016, this Court
held as under :-

"Whether evidence is correct or
not or credible enough or not to sustain
conviction and punishment is a matter
which would be seen after revisionist put in
appearance, lead evidence and thereafter
Trial Court examine the entire evidence
and record its finding thereon, but at the
stage of summoning of revisionist on the
basis of aforesaid statement in Trial under
Section 319 Cr.P.C., the probable defence
of accused summoned under Section 319
Cr.P.C. cannot be examined for the first
time in a revisional jurisdiction by this
Court."

15. In Md. Allauddin Khan Vs. The
State of Bihar and others, (2019) 6 SCC
107, Court observed as to what should be
examined by High Court in an application
under Section 482 Cr.P.C. and in paras 15,
16 and 17 said as under :-

"12. The High Court should have
seen that when a specific grievance of the
appellant in his complaint was that
respondent Nos. 2 and 3 have committed
the offences punishable under Sections 323,
379 read with Section 34 IPC, then the
question to be examined is as to whether
there are allegations of commission of these
two offences in the complaint or not. In
other words, in order to see whether any
prima facie case against the accused for
taking its cognizable is made out or not, the
Court is only required to see the allegations
made in the complaint. In the absence of
any finding recorded by the High Court on
this material question, the impugned order
is legally unsustainable.

13. The second error is that the
High Court in para 6 held that there are
contradictions in the statements of the
witnesses on the point of occurrence.

14. In our view, the High
Court had no jurisdiction to appreciate the
evidence of the proceedings under Section
482 of the Code Of Criminal Procedure,
1973 (for short "Cr.P.C.") because whether
there
are
contradictions
or/and
inconsistencies in the statements of the
witnesses is essentially an issue relating to
appreciation of evidence and the same can
be gone into by the Judicial Magistrate
during trial when the entire evidence is
adduced by the parties. That stage is yet to
come in this case."

16. In State of Haryana and others
v. Bhajan Lal and others, 1992 Supp (1)
SCC 335, Court has elaborately considered
the scope and ambit of Section 482 Cr.P.C.
Although in the above case Court was
considering the power of the High Court to
quash the entire criminal proceeding
including the FIR, the case arose out of an
FIR registered under Section 161, 165 IPC
and Section 5(2) of the Prevention of
Corruption Act, 1947. Court elaborately
considered the scope of Section 482
Cr.P.C./ Article 226 of the Constitution of
India in the context of quashing the
proceedings in criminal investigation. After
noticing various earlier pronouncements of
Court, Court enumerated certain Categories
of cases by way of illustration where power
under Section 482 Cr.P.C. can be exercised
to prevent abuse of the process of the Court
or secure ends of justice. Paragraph 102
which enumerates 7 categories of cases
where power can be exercised under
Section 482 Cr.P.C. are extracted as
follows:
114 INDIAN LAW REPORTS ALLAHABAD SERIES

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

17. From the perusal of allegations
made in the complaint and statement of
complainant under Section 200 Cr.P.C.
and his witnesses Shakuntala Devi (her
mother) and Ishwari Devi under Section
202 Cr.P.C., it cannot be said that no
prima facie case against the accusedapplicant is made out. At the time of
passing summoning order, Magistrate is
only required to see prima facie
evidence and sufficient ground for
proceeding.

18. The allegation levelled against
him can be adjudicated only after the
evidence and truthfulness of allegation
cannot be considered in the proceeding
under Section 482 Cr.P.C. before this
Court
and
trial
must
go
on.
6 All. Sri Munish Jain Vs. State of U.P. & Anr.
115

19.

Considering
facts
and
circumstances of the case, allegation
made
in
complaint,
statement
of
complainant
and
witnesses
under
Sections
200
and
202
Cr.P.C.
respectively
and
legal
preposition
discussed herein before, application
under Section 482 Cr.P.C. fails and is
accordingly dismissed.
----------
(2020)06ILR A115
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 5330 of 2012

Sri Munish Jain ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Ranjit Saxena, Sri Ajay Kumar Pathak,
Sri V.S. Kushwaha

Counsel for the Opposite Parties:
A.G.A., Sri Arun Kumar Singh, Sri Dhruv
Narayan Misra, Sri Digvijay Singh, Sri R.P.
Mishra, Sri Rajul Bhargava, Ms. Zia Naz
Zaidi, Sri Rajesh Kumar Mishra

Criminal Law - Criminal Procedure Code (2
of 1974) - Section 320 - Compounding of
offence - Indian Penal Code (45 of 1860),
S.498A, S.323, S.504, S.506, S.408 - Quashing
of proceedings on ground of compromise - for
compounding, as per Section 320 Cr.P.C., the
fact of compromise, entered voluntarily and duly
verified by Magistrate, in presence of both sides,
is required

In mediation between parties before Delhi High
Court it was agreed that husband will unite with
his family and he will live together and on this
assurance, mediation agreement was entered -
however this was not complied with by husband
rather a divorce petition by husband was filed
before Delhi High Court - Held - Admittedly,
neither parties filed compromise duly and freely
entered in between before court of Magistrate,
before whom trial was pending nor it was
verified by trial court concerned - Proceedings,
not liable to be quashed (Para 12)

Application dismissed. (E-5)

List of case cited :
Gian Singh Vs St. of Punj. (2012)10 SCC 303

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This Application, under Section
482 / 483 Cr.P.C., has been filed by
applicant with a prayer for setting aside the
order dated 01.08.2009, passed in Criminal
Case No. 987 of 2009, State Vs. Manish
Jain, under Sections 498-A, 323, 504, 506,
408
I.P.C.
and
Section
3/4
Dowry
Prohibition Act, P.S. Hathras Gata, District
Mahamayanagar.

2. Learned counsel for applicant
argued that there had been a mediation in
between, wherein Delhi High Court passed
following order:-

"...The respondent, who is present
in Court, submits that she is ready and
willing to withdraw all pending cases. In
respect of the F.I.R. lodged against the
petitioner under Section 498-A I.P.C. etc.,
she submits that the petition had been
drafted and had been provided to the
petitioner. The petitioner submits that he
has filed his own petition before the
Allahabad High Court under Section 482 of
the Cr.P.C. being Crl. M.A. No.5330 of
2012. A copy of the order dated 10.2.2012
passed in those proceedings has been
shown to the Court. It appears that the
Court has directed the listing of the case
after the expiry of four weeks time which