# Rakesh Garg v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 393
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-16
- **Case number:** Application U/S 482 No. 13635 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-garg-v-state-of-u-p-anr-45959
- **Pages:** 4

## Headnote

Criminal Law - Code of Criminal Procedure,
1973- Section 245 - Rejection of application
for discharge- Till disposal of application u/s
245 Cr.P.C. no additional evidence was there
on the basis of which charge is to be framed
by the trial court. Merely on the basis of
sufficiency of evidence of summoning, there
is summoning. After appearance of accused
evidence u/s 244 Cr.P.C. is to be recorded,
which is to be given by complainant and
there will be an opportunity of crossexamination of witnesses and after this
exercise, stage of framing of charge or
discharge
comes
in
light.
Hence
the
Magistrate was with no additional evidence
till passing of impugned order. Hence this
application was rejected and it was with
reason and as per law laid down by Apex
Court for framing of charge. Meticulous
analysis of facts and evidence is not to be
done at the time of framing of charges as it
may lead prejudice against fair trial- The
evidence is to be seen at the time of framing
of charge. But in the instant case the stage
of framing of charge is not there.

It is only after the stage of Section 244 of the
Cr.Pc that the Magistrate has the necessary
evidence required for framing the Charge and
therefore since in the present case that stage
had not been reached the Magistrate did not
have the additional evidence. Moreover, at the
stage of framing the Charge, it is to be seen
that only a prima facie case is made out and the
court
cannot
appreciate
the
evidence
meticulously at that stage.

Criminal Application rejected. (Para 5) (E-3)
394 INDIAN LAW REPORTS ALLAHABAD SERIES
Case law cited/ relied upon: -

## Text

9 All. Rakesh Garg Vs. State of U.P. & Anr.
393
would not embark upon an enquiry whether
the allegations in the complaint are likely
to
be
established
by
evidence
or
not".Meaning thereby, exercise of inherent
jurisdiction under Section 482 Cr.P.C. is
within the limits, propounded as above.

9. In view of what has been discussed
above, this Application, under Section 482 of
Cr.P.C., merits dismissal and it stands
dismissed accordingly. However, all the
questions of fact may be raised before the
Trial court, at appropriate stage, which, if
raised, shall be considered and decided by the
Trial court, in accordance with provisions of
law and precedents on the issue/subject.

10. However, it is directed that if the
applicants appear and surrender before the court
below within 30 days from today and apply for
bail, their prayer for bail shall be considered and
decided in view of the settled law laid by this
Court in the case of Amrawati and another Vs.
State of U.P. reported in 2004 (57) ALR 290 as
well as judgement passed by Hon'ble Apex Court
reported in 2009 (3) ADJ 322 (SC) Lal
Kamlendra Pratap Singh Vs. State of U.P.

11. For a period of 30 days from
today, no coercive action shall be taken
against the applicants.

12. In case, if the applicants do not
appear before the Court below within the
aforesaid period, coercive action shall be
taken against them.
----------
(2020)09ILR A393
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 13635 of 2020

Rakesh Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Farzana Jamal, Sanjeev Kumar Tyagi

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

Criminal Law - Code of Criminal Procedure,
1973- Section 245 - Rejection of application
for discharge- Till disposal of application u/s
245 Cr.P.C. no additional evidence was there
on the basis of which charge is to be framed
by the trial court. Merely on the basis of
sufficiency of evidence of summoning, there
is summoning. After appearance of accused
evidence u/s 244 Cr.P.C. is to be recorded,
which is to be given by complainant and
there will be an opportunity of crossexamination of witnesses and after this
exercise, stage of framing of charge or
discharge
comes
in
light.
Hence
the
Magistrate was with no additional evidence
till passing of impugned order. Hence this
application was rejected and it was with
reason and as per law laid down by Apex
Court for framing of charge. Meticulous
analysis of facts and evidence is not to be
done at the time of framing of charges as it
may lead prejudice against fair trial- The
evidence is to be seen at the time of framing
of charge. But in the instant case the stage
of framing of charge is not there.

It is only after the stage of Section 244 of the
Cr.Pc that the Magistrate has the necessary
evidence required for framing the Charge and
therefore since in the present case that stage
had not been reached the Magistrate did not
have the additional evidence. Moreover, at the
stage of framing the Charge, it is to be seen
that only a prima facie case is made out and the
court
cannot
appreciate
the
evidence
meticulously at that stage.

Criminal Application rejected. (Para 5) (E-3)
394 INDIAN LAW REPORTS ALLAHABAD SERIES
Case law cited/ relied upon: -

1. Crl Appeal No. 2114 of 2017, arising out of
S.L.P.
(Crl.)
No.
8279
of
2016,
Nitya
Dharmananda @ K. Lenin & anr. Vs Sri Gopal
Sheelum
Reddy
also
known
as
Nitya
Bhaktananda & ors, connected with Criminal
Appeal No. 2115 of 2017, arising out of S.L.P.
(Crl.) No. 1176 of 2017, St. of Kar. Vs. Sri Gopal
Sheelum
Reddy
also
known
as
Nitya
Bhaktananda.

2. Palwinder Singh Vs Balwinder Singh & ors.;
(2008) 14 Supreme Court Cases 504

3. Amrawati & anr. Vs St. of U.P., 2004 (57) ALR 290

4. Lal Kamlendra Pratap Singh Vs St. of U.P.
2009 (3) ADJ 322 (SC)
(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. representing
the State. Perused the records.

2. This application under Section 482
Cr.P.C. has been filed by applicant Rakesh
Garg against State of U.P. and another,
with prayer to quash order dated 28.2.2020
passed by Judicial Magistrate, Hawali,
District Farrukhabad, in Complaint Case
No. 132 of 2013 (old No. 390 of 2008),
Mukhtyar Ahmad Taini Vs. Suresh Garg
and others), u/s 323, 504, 506 I.P.C., P.S.
Kotwali, District Farrukhabad.

3. Learned counsel for the applicant
argued that the applicant is resident of
Panipat, State of Haryana. He is under
business transaction with complainant-
O.P. No. 2, Mukhtar Ahmad Taini. A case
u/s 406 I.P.C. was filed before a Court at
Etawah. No such occurrence ever occurred
nor it is probable that the applicant Rakesh
Garg along with his son will come at
Farrukhabad and will commit the offence
punishable u/s 323, 504, 506 I.P.C. But
under false implication this complaint was
filed, wherein there is summoning, as above.
The applicant came before this court in a
proceeding u/s 482 No. 268 of 2009, Suresh
Garg and another Vs. State of U.P. and
another, and this court vide order dated
01.9.2017 gave an opportunity to the
applicant to move discharge application
before trial court. A discharge application u/s
245 Cr.P.C. was filed before the trial court
with the contention made before this court in
above proceeding u/s 482 Cr.P.C. as well as
in the present proceeding, but the trial court
without mentioning any reason and only
writing contention of the applicant in its
order,
dismissed
the
above
discharge
application. It was an abuse of process of law.
Not even the pin probability of plea of alibi of
being in abroad in that period was taken into
account by the trial court. Law laid down by
Apex Court in Criminal Appeal No. 2114 of
2017, arising out of S.L.P. (Crl.) No. 8279 of
2016, Nitya Dharmananda @ K. Lenin &
another Vs. Sri Gopal Sheelum Reddy also
known as Nitya Bhaktananda and other,
connected with Criminal Appeal No. 2115 of
2017, arising out of S.L.P. (Crl.) No. 1176 of
2017, State of Karnataka Vs. Sri Gopal
Sheelum Reddy also known as Nitya
Bhaktananda, has been pressed by learned
counsel for applicant with a contention that
no doubt at the time of framing of charge
evidence collected by prosecution be taken
into consideration, but even if the fact, which
is material enough to belie the case of
prosecution, is being brought at the time of
framing of charge, then that fact also be taken
into consideration by the trial court. Hence
this application with above prayer.

4. Learned A.G.A. has vehemently
opposed the application.

5. From the very perusal of the
impugned order, it is apparent that in a
9 All. Rakesh Garg Vs. State of U.P. & Anr.
395
Complaint
Case
No.
390
of
2008
Magistrate examined complainant u/s 200
Cr.P.C. wherein it was specifically stated
that Suresh Garg and Rakesh Garg were
known to the complainant since 2006 and
there had been business transaction in
between. There was supply of goods with
payment of same. Since 29.8.2006 to
21.5.2007 there was supply of goods worth
Rs. 27-28 lacs and payment for the same
were made then subsequently a supply for
the value of Rs. 5,80,450/- was made, but it
was not paid by them and when notice for
demand was sent to the accused persons at
their address of Haryana, it was not paid by
them. This demand was persistently made
through telephone and it was assured to be
paid by them. Ultimately on 25.11.2007 the
accused persons met with Mohd. Aslam
Ansari and when money was demanded,
they refused to make payment and
ultimately Criminal Case was got lodged at
Etawah. As a result of the same, when the
complainant along with his brother Aslam
was near N.A.K.P. College both of accused
came there. They extended threat them with
abuse. That is why a criminal case was
lodged at Etawah. Subsequently both of the
accused assaulted the complainant with
threat of dire consequences. For this
occurrence the complainant got himself
medically examined at Dr. Lohiya Hospital
and then reported to the police, but of no
avail. Hence this complaint was filed. This
contention of complainant recorded u/s 200
Cr.P.C. was corroborated by statements of
Babbu Hussain and Iliyas Ansari recorded
u/s 202 Cr.P.C. On the basis of this
evidence, accused persons were summoned
for the offences punishable u/s 323, 504,
506 I.P.C. Against this order proceeding u/s
482 Cr.P.C. was filed by the applicants,
wherein order, as above, was passed and in
compliance
of
that
order,
discharge
application u/s 245 Cr.P.C. was moved
before trial court. In this application
specific averment was there that the
applicant was not aware of Mukhtar
Ahmad Taini in para 2 of application u/s
245(2) Cr.P.C., whereas it has been argued
that complainant and accused were on the
business transaction and they were aware to
each other. Meaning thereby the very
acquaintance of the complainant has been
denied in the discharge application. Till
disposal of application u/s 245 Cr.P.C. no
additional evidence was there on the basis
of which charge is to be framed by the trial
court. Merely on the basis of sufficiency of
evidence
of
summoning,
there
is
summoning. After appearance of accused
evidence u/s 244 Cr.P.C. is to be recorded,
which is to be given by complainant and
there will be an opportunity of crossexamination of witnesses and after this
exercise, stage of framing of charge or
discharge comes in light. Hence the
Magistrate was with no additional evidence
till passing of impugned order. Hence this
application was rejected and it was with
reason and as per law laid down by Apex
Court for framing of charge. In the case of
Palwinder Singh Vs. Balwinder Singh and
others; (2008) 14 Supreme Court Cases 504
Apex Court has specifically laid down that
meticulous analysis of facts and evidence is
not to be done at the time of framing of
charges as it may lead prejudice against fair
trial. Pre-trial acquittal is not expected. Rather
the evidence is to be seen at the time of
framing of charge. But in the instant case the
stage of framing of charge is not there.
Accordingly, there is no abuse of process of
law. Hence this application merits dismissal.

6.

Accordingly,
application
is
dismissed.

7. However, in the interest of justice,
it is provided that if the applicant appears
396 INDIAN LAW REPORTS ALLAHABAD SERIES
and surrenders before the court below within
thirty days from today and apply for bail, then
the bail application of the applicant be
considered and decided in view of the settled
law laid by this Court in the case of Amrawati
and another Vs. State of U.P. reported in
2004 (57) ALR 290 as well as judgment
passed by Hon'ble Apex Court reported in
2009 (3) ADJ 322 (SC) Lal Kamlendra
Pratap Singh Vs. State of U.P.

8. For a period of thirty days from
today or till the disposal of the application
for grant of bail whichever is earlier, no
coercive action shall be taken against the
applicant.

9. However, in case, the applicant
does not appear before the Court below
within the aforesaid period, coercive action
shall be taken against him.
----------
(2020)09ILR A396
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

WRIT - C No. 4336 of 2020

Ram Prit & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Juned Alam

Counsel for the Respondents:
C.S.C.

Constitution of India - Article 300A - Land
Acquisition Act, 1894 - Section 11 -
Property - Land Acquisition - Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013 - Award - Right to
property - person whose land is acquired
is entitled for grant of compensation -
State cannot acquire the property and
refuse to make payment of compensation
(Para 14)

Land acquisition u/s 4 L.A. Act, 1894 dt
10.3.1978- SLAO notice dt. 9.12.1999 to tenure
holders to complete formalities to receive
compensation - Petitioners claimed they still in
physical possession & no compensation paid to
them - sought relief in writ petition that they
may not be dispossessed & compensation be
paid - Held - Petitioner's only entitled for
compensation under the Act 1894 - Court
declined to accept that possession not taken -
Also
held
petitioners
not
entitled
for
compensation as per prevalent market value
under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013, as acquisition had
taken place long time back (Para 16)

Disposed off. (E-5)

List of case cited:-

1. Vidya Devi Vs St. of H.P., Civil Appeal
No.3674 o 2009, decided on 4.12.2019

(Delivered by Hon'ble Ravi Nath Tilhari, J)

1. We have heard Sri Juned Alam,
learned counsel for the petitioners and
learned Standing Counsel for the Staterespondents and with their consent this writ
petition is being decided at this stage.

2. The petitioners claim themselves to
be recorded tenure holders of Revenue Plot
No.1/17, 1/18, 1/9(New numbers 46, 47
and 48) situated in village Bharwalia,
Tappa Pakari Gangarani, pargana Sudhwa
Jobani, at present in district Kaushambi
(earlier in the undivided district Deoria).
Being aggrieved from the proceeding