# Ram Sajiwan & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1080
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-29
- **Case number:** Application u/s 482 No. 711 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sajiwan-ors-v-state-of-u-p-anr-opp-parties-51229
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 190 (1) (b) - Magistrate
empowered to take cognizance of any
offence upon a police report of facts which
constitute such offence , Indian Penal
Code, 1860 - Sections 323, 354B, 504, 506
- Magistrate has the power to take
cognizance of an offence under Section
190(1)(b)
CrPC
based
on
the
facts
disclosed in the police report, even if the
police report does not mention the specific
offence - Trial court can summon the
accused for trial of additional offences not
mentioned in the charge sheet if sufficient
material exists - Veracity of witness
statements is to be evaluated during trial,
not at the discharge/quashing stage -
Court's jurisdiction under Section 482
CrPC is limited; it cannot conduct a minitrial or assess evidence.(Para -12,16,19)

Dispute over parking led to altercation and
alleged molestation - FIR lodged against
2 All. Ram Sajiwan & Ors. Vs. State of U.P. & Anr.
1081
applicants - Charge sheet filed - Trial court took
cognizance of additional offense under Section
354-B IPC - Applicants challenged cognizance
order, summoning order & entire proceedings.
(Para - 2 to 5)

HELD: - Victim's categorically stated facts
under Section 354B IPC provide sufficient
material for further proceedings against the
applicant. Trial court was allowed to take
cognizance of the offense based on material
collected by the Investigating Officer and
available at the time of cognizance. Case for
trial of applicant made out. No illegality in the
order taking cognizance of the offence.(Para -
20 to 22)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

## Text

1080 INDIAN LAW REPORTS ALLAHABAD SERIES
4201 of 2023 (Sallahuddin Vs. State of U.P.
and Others), whereby application of
Section 231(2) of Cr.P.C. has been
discussed in the light of dictum of Apex
Court in re: Rasheed (supra).

11. Having heard learned counsel for
the parties, having perused the material
available on record, the relevant provisions
of Section 135 and 138 of the Evidence Act
as well as Section 231 of Cr.P.C. and also
having regard to the dictum of Apex Court
in re:Rasheed (supra), I am of the
considered opinion that the examination of
any witness should be done strictly in
accordance with Section 138 of the Act,
1872 and the discretion so conferred upon
the trial court under Section 231(2) Cr.P.C.
must be applied judicially and carefully
giving specific reasons to that effect, so as
to achieve the interest of justice of the
cause and the parties.

12. In the present case, the learned
trial court has not given any reasons as to
why he has not permitted the defence side
for cross-examination of the prosecution
witnesses after completion of examinationin-chief.

13. Hence, I find it appropriate to
issue direction to the effect that those
prosecution witnesses whose examinationin-chief has been completed i.e. PW-2 to
PW-9,
their
cross-examination
be
conducted by the petitioner one by one. It is
upon the trial court that the aforesaid crossexamination may be conducted on day-today bass. After the cross-examination of the
aforesaid prosecution witnesses i.e. from
PW-2 to PW-9, the examination-in-chief of
the other prosecution witnesses may be
permitted to be done. The learned trial
court shall also ensure that the trial in
question is conducted and concluded with
expedition
and
no
one
unnecessary
adjournment is given to any of the parties.

14. In view of the aforesaid
observations, this petition is disposed of.
----------
(2024) 2 ILRA 1080
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 711 of 2024

Ram Sajiwan & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Dilip Kumar Pandey

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 190 (1) (b) - Magistrate
empowered to take cognizance of any
offence upon a police report of facts which
constitute such offence , Indian Penal
Code, 1860 - Sections 323, 354B, 504, 506
- Magistrate has the power to take
cognizance of an offence under Section
190(1)(b)
CrPC
based
on
the
facts
disclosed in the police report, even if the
police report does not mention the specific
offence - Trial court can summon the
accused for trial of additional offences not
mentioned in the charge sheet if sufficient
material exists - Veracity of witness
statements is to be evaluated during trial,
not at the discharge/quashing stage -
Court's jurisdiction under Section 482
CrPC is limited; it cannot conduct a minitrial or assess evidence.(Para -12,16,19)

Dispute over parking led to altercation and
alleged molestation - FIR lodged against
2 All. Ram Sajiwan & Ors. Vs. State of U.P. & Anr.
1081
applicants - Charge sheet filed - Trial court took
cognizance of additional offense under Section
354-B IPC - Applicants challenged cognizance
order, summoning order & entire proceedings.
(Para - 2 to 5)

HELD: - Victim's categorically stated facts
under Section 354B IPC provide sufficient
material for further proceedings against the
applicant. Trial court was allowed to take
cognizance of the offense based on material
collected by the Investigating Officer and
available at the time of cognizance. Case for
trial of applicant made out. No illegality in the
order taking cognizance of the offence.(Para -
20 to 22)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:

1. St. of Guj. Girish Vs Radhakrishnan Varde,
(2014) 3 SCC 659

2. Nahar Singh Vs St.of U.P., (2022) 5 SCC 295

3. India Carat (P) Ltd. Vs St.of Karn., (1989) 2
SCC 132

4. Minu Kumari Vs St.of Bihar,(2006) 4 SCC 359

5. Dharam Pal Vs St.of Har., (2014) 3 SCC 306

6. St.of Guj. Vs Girish Radhakrishnan Varde
(2014) 3 SCC 659

7. Nahar Singh Vs St.of U. P. & ors., (2022) 5
SCC 295

8. Sadab Vs St. of U.P., 2023 SCC OnLine All 30

9. CBI Vs Aryan Singh, 2023 SCC OnLine SC 379

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Dilip Kumar Pandey, the
learned counsel for the applicants, Sri
Sanjay Maurya, the learned AGA for the
State and perused the record.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicants have sought quashing of the
charge sheet no. 2 dated 22.07.2022, the
summoning order dated 03.12.2022 as well
as the entire proceedings of Case No.
42325/2022 (State v. Ram Sajiwan & Ors.)
arising out of Case Crime No. 439/2021,
under Sections 323, 354B, 504, 506 IPC,
Police Station Lalganj, District Raebareli.

3. In the FIR lodged on 06.11.2021
against the applicant, the opposite party no.
2 stated that due to a dispute arising from
some pieces of wood being carried by the
applicant having hit the motorcycle of one
of the applicants parked on the passage, all
the accused persons started beating the
informant and they also beaten up and
molested
the
informant's
sister.
The
informant and his sister had received
injuries in the incident and their medico
legal examination reports are annexed with
the application. The informant's sister
stated in her statement recorded by the
Investigating Officer as also in her
statement recorded by the Magistrate, that
when she had gone to save her brother after
hearing the hue and cry raised by him, she
was also beaten up and molested by the
accused persons and her clothes got torn in
the process. She further stated that there is
an old animosity between the parties as her
aunt's daughter had been killed four years
ago and the applicant no. 3 - Shubham had
remained in custody in connection with the
aforesaid case and he was released recently
and he threatens regarding the earlier case.

4. Some independent witnesses
examined by the Investigating Officer
supported the incident but they stated that
the allegation of molestation had been
leveled because of animosity to put
pressure on the accused persons and clothes
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
of the informant's sister got torn as she had
fallen down during the incident.

5.

After
investigation,
the
Investigating Officer had submitted a
charge
sheet
dated
22.07.2022
for
commission of offences under Sections
323, 504, 506 IPC only but while taking
cognizance of the offences, the trial court
also took cognizance of the offence under
Section 354-B IPC and summoned the
accused persons to face the trial for
offences under Sections 323, 504, 506 and
354-B IPC.

6. The learned counsel for the
applicant has submitted that from the
statement of the independent witnesses,
allegation of commission of offence under
Section 354-B IPC is not supported. He has
further submitted that when the offence
under Sections 354-B is not there in the
charge sheet, it was not open for the trial
court to take cognizance of the aforesaid
offence. In support of this contention, the
learned counsel for the applicant has placed
reliance on a judgment of Hon'ble Supreme
Court in the case of State of Gujarat v.
Girish Radhakrishnan Varde (2014) 3
SCC 659 in which it was held that the
Magistrate cannot exclude or include any
section
in
the
charge
sheet
after
investigation has been completed and
charge sheet has been submitted by the
police and the same would be permissible
by the trial court only at the time of
framing of charge under section 216, 218 or
under section 228 of the Cr.P.C. as the case
may be.

7. The learned trial court has placed
reliance on a judgment of Hon'ble the
Supreme Court in the case of Nahar Singh
Vs. State of U.P., (2022) 5 SCC 295,
wherein the Hon'ble Supreme Court has
held that the trial court may summon any
person, even if he is not named in the
police report, in case it appears that on the
basis of material available on record, the
involvement of that person in commission
of offence is prima facie established.

8. I have considered the facts and
circumstances of the case and the aforesaid
submissions advanced by the learned
counsel for the applicants.

9. The victim has categorically stated
that the accused persons had molested her
and her clothes got torn away in the
process. From the statement of the victim,
the offence under Section 354-B IPC is
made out.

10. Section 190 (1) Cr.P.C. is being
reproduced below: -

"190. Cognizance of offences by
Magistrates.- (1) Subject to the provisions
of this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

11. A bare reading of Section 190 (1)
(b) Cr.P.C. indicates that a Magistrate is
empowered to take cognizance of any
offence upon a police report of facts which
constitute such offence. Police report has to
be of facts which constitute the offence and
it need not mention the offence which is
2 All. Ram Sajiwan & Ors. Vs. State of U.P. & Anr.
1083
made out. Even if the police report
mentions some offence and it omits to
mention some other offence, in case the
Magistrate is satisfied from facts stated
in the police report that some other
offence is also made out, the Magistrate
can take cognizance of that offence
also.

12. In India Carat (P) Ltd. v.
State of Karnataka, (1989) 2 SCC 132,
a Bench consisting of three Hon'ble
Judges of the Hon'ble Supreme Court held
that: -

"11. ... On receiving the police
report the Magistrate may take cognizance
of the offence under Section 190(1)(b) and
issue process straightway to the accused.
The Magistrate may exercise his powers in
this behalf irrespective of the view
expressed by the police in their report
whether an offence has been made out or
not. This is because the police report under
Section 173(2) will contain the facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom. If the Magistrate is satisfied that
upon the facts discovered or unearthed by
the police there is sufficient material for
him to take cognizance of the offence and
issue process, the Magistrate may do so
without reference to the conclusion drawn
by the Investigating Officer because the
Magistrate is not bound by the opinion of
the police officer as to whether an offence
has been made out or not. Alternately the
Magistrate, on receiving the police report,
may without issuing process or dropping
the proceeding proceed to act under
Section 200 by taking cognizance of the
offence on the basis of the complaint
originally submitted to him and proceed to
record the statement upon oath of the
complainant and the witnesses present and
thereafter decide whether the complaint
should be dismissed or process should be
issued.

* * *

13....On receiving the police
report the Magistrate may take cognizance
of the offence under Section 190(1)(b) and
issue process straightway to the accused.
The Magistrate may exercise his powers in
this behalf irrespective of the view
expressed by the police in their report
whether an offence has been made out or
not. This is because the police report under
Section 173(2) will contain the facts
discovered or unearthed by the police as
well as the conclusion drawn by the police
therefrom. If the Magistrate is satisfied that
upon the facts discovered or unearthed by
the police there is sufficient material for
him to take cognizance of the offence and
issue process, the Magistrate may do so
without reference to the conclusion drawn
by the Investigating Officer because the
Magistrate is not bound by the opinion of
the police officer as to whether an offence
has been made out or not. Alternately the
Magistrate, on receiving the police report,
may without issuing process or dropping
the proceeding proceed to act under
Section 200 by taking cognizance of the
offence on the basis of the complaint
originally submitted to him and proceed to
record the statement upon oath of the
complainant and the witnesses present and
thereafter decide whether the complaint
should be dismissed or process should be
issued."

13. In Minu Kumariv.State of
Bihar,(2006) 4 SCC 359, a Bench
consisting of two Hon'ble Judges of the
Hon'ble Supreme Court heldthat: -

"11.... The position is, therefore,
now well-settled that upon receipt of a
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
police report under Section 173(2) a
Magistrate is entitled to take cognizance of
an offence under Section 190(1)(b) of the
Code even if the police report is to the
effect that no case is made out against the
accused. The Magistrate can take into
account the statements of the witnesses
examined
by
the
police
during
the
investigation and take cognizance of the
offence complained of and order the issue
of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can
take cognizance of an offence only if the
Investigating Officer gives an opinion that
the investigation has made out a case
against the accused. The Magistrate can
ignore the conclusion arrived at by the
Investigating officer and independently
apply his mind to the facts emerging from
the investigation and take cognizance of the
case, if he thinks fit, exercise of his powers
under Section 190(1)(b) and direct the
issue of process to the accused."

14. In Dharam Pal v. State of
Haryana, (2014) 3 SCC 306, decided on
18.07.2013, a Constitution Bench of five
Hon'ble Judges of the Hon'ble Supreme
Court had held that: -

"the Magistrate has a role to play
while committing the case to the Court of
Session upon taking cognizance on the
police report submitted before him under
Section 173(2) CrPC. In the event the
Magistrate disagrees with the police report,
he has two choices. He may act on the
basis of a protest petition that may be filed,
or he may, while disagreeing with the
police report, issue process and summon
the accused."

15. State of Gujarat v. Girish
Radhakrishnan Varde (2014) 3 SCC 659
relied upon by the learned Counsel for the
applicant, was decided by a Bench
consisting of two Hon'ble Judges was
decided on 25.11.2013, and in this
judgment, none of the precedents on the
point have been considered, including the
Constitution Bench judgment in the case of
Dharam Pal (Supra) and the judgment of a
Bench consisting of three Hon'ble Judges
in Minu Kumari (Supra). It is well settled
that where there is a conflict in the
judgments of the Hon'ble Supreme Court,
the judgment rendered by a larger bench
will prevail.

16. In Nahar Singh versus State of
U. P. and others, (2022) 5 SCC 295, after
discussing various precedents on the point,
the Hon'ble Supreme Court has held that
the Magistrate has to apply his mind while
taking cognizance of an offence and if it
appears from the material placed before
him and any person other than those
arrayed as accused also needs to be
summoned, the Magistrate can certainly
summon him. On the same principle, in
case the Magistrate is satisfied that there is
sufficient material for trial of the accused
for any other offence, he has the power to
summon the accused person(s) for trial of
that offence also. In case the Magistrate is
satisfied by a perusal of the complaint and
the material filed with it, that the accused
persons appear to have violated any
direction, it can take cognizance of the
offence under Section 31-A also.

17. In Sadab versus State of U.P.,
2023 SCC OnLine All 30, a coordinate
bench of this Court held that a Magistrate is
having all the authority to take cognizance
of any offence on the basis of the material
collected by the Investigating Officer
during investigation and if he arrives at the
conclusion that an offence is also made out,
in which, charge-sheet has not been
2 All. Shri Ayush Tandon & Ors. Vs. State of U.P. & Anr.
1085
submitted then he can take cognizance for
such offence(s) too and can summon the
accused.

18. Therefore, the legal position is
settled beyond any confusion and I find no
force in the submission of the learned
Counsel for the applicant that when Section
354-B was not mentioned in the chargesheet, the Magistrate had no jurisdiction to
take cognizance of that offence.

19. Although some independent witnesses
gave statements contrary to the statement
of the victim but veracity of the statements
has to be evaluated by the trial court during
the trial, when the other party will have the
opportunity of cross examination the
witnesses. In CBI v. Aryan Singh, 2023
SCC OnLine SC 379, the Hon'ble Supreme
Court has reiterated the cardinal principle
of law, that at the stage of discharge and/or
quashing of the criminal proceedings, while
exercising the powers under Section482Cr.
P.C., the Court is not required to conduct
the mini trial. This is not the stage where
the prosecution/investigating agency is/are
required to prove the charges. The charges
are required to be proved during the trial on
the basis of the evidence led by the
prosecution/investigating agency. At the
stage of discharge and/or while exercising
the powers under Section482Cr. P.C., the
Court has a very limited jurisdiction and is
required
to
consider
"whether
any
sufficient material is available to proceed
further against the accused for which the
accused is required to be tried or not".

20. When the victim has categorically
stated the facts establishing commission of
offence under Section 354B IPC, there is
sufficient material to proceed further
against the applicant. The trial court was
well within its rights to take cognizance of
the offence under Section 354B IPC on the
basis
of
material
collected
by
the
Investigating Officer and available before
the court at the time of taking of the
cognizance.

21. Accordingly, I am of the
considered view that a case for trial of the
applicant under Section 323, 354B, 504 &
506 IPC is made out.

22. There is no illegality in the order
taking cognizance of the offence.

23. The application lacks merit and
the same is accordingly dismissed.
----------
(2024) 2 ILRA 1085
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 739 of 2024

Shri Ayush Tandon & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Lalta Prasad Misra, Shashank Shekhar Shukla

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - Quashing of Criminal
Proceedings in Matrimonial Disputes - The
Code of criminal procedure, 1973 - Section
482 - Inherent power, Indian Penal Code,
1860 - Sections 498-A, 325, 506, The
Dowry prohibition Act, 1961 - Section 3/4,
Hindu Marriage Act, 1955 - Sections 9 -
Restitution of conjugal rights, Section 12 -
Voidable marriages - Criminal prosecution
cannot be allowed to be misused for
ulterior objective to put undue pressure