# Rashmi Devi v. State of U.P. & Ors - **Citation:** (2023) 4 ILRA 808 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-04-19 - **Case number:** Application U/S 482. No. 35595 of 2022 - **Bench:** Umesh Chandra Sharma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rashmi-devi-v-state-of-u-p-ors-50030 - **Pages:** 3 ## Headnote Law - Code of Criminal Procedure,1973 - Section 173 (2)- Impugned order allowed the final reportaccepted without assigning any reason-applicant claim self posted signature of the Applicant upon the notice was produced-but no handwriting expert was sought-on submission of police report u/s 173(2) Cr.P.C.-Magistrate 4 All. Rashmi Devi Vs. State of U.P. & Ors. 809 decides to accept it and to not take cognizanceinformant was served notice which was not availed by he. Application dismissed. (E-9) List of Cases cited: ## Text 808 INDIAN LAW REPORTS ALLAHABAD SERIES the opposite party no.2 for depositing the fee and for giving sample for D.N.A. test and if he fails to do so, the Family Court shall be free to draw the adverse inference against opposite party no.2 regarding paternity of applicant no.2. This fact would be kept in mind that generally a woman and a girl child would not made such claim which may diminish their character, career, honour, respect etc. for any false claim forever. 15. When the case of applicant no. 1 is that opposite party no.2 solemnized marriage with her concealing his martital status with his wife Smt. Mamta Sharma, it has to be seen whether the alleged second wife is entitled for maintenance or not. Certainly, a woman living in live-inrelationship is entitled to maintenance. It is the Trial Court who will ascertain on the basis of evidence that applicant no.1 had lived in live-in-relationship with opposite party no. 2 for some time or not. It appears contradictory that on one hand the Trial Court has concluded that on the basis of non compliance for participation in D.N.A. test, an adverse inference shall be drawn against the opposite party no.2 and on the other hand it has dismissed the interim maintenance application. 16. On the basis of above discussion, the application under Section 482 Cr.P.C. is liable to be allowed. Order The application is allowed in the following terms: (a) One month more time is provided to opposite party no.2 for giving D.N.A. sample and depositing the requisite fee, if he fails to do so within the above stipulated period, the Family Court would be free to draw the adverse inference against the opposite party no.2 and thereafter opposite party no.2 would not be compelled to give the sample for D.N.A. test. (b) If result of the D.N.A. test is found positive and in favour of the applicants, the applications under Section 125 and Section 125 (6) Cr.P.C. shall be decided taking help of such report. If D.N.A. test report is not obtained due to non-cooperation of the opposite party no.2, the Court shall proceed with the case on the basis of adverse inference drawn by it alongwith oral and documentary evidence filed by the parties. ---------- (2023) 4 ILRA 808 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 19.04.2023 BEFORE THE HON'BLE UMESH CHANDRA SHARMA, J. Application U/S 482. No. 35595 of 2022 Rashmi Devi ...Applicant Versus State of U.P. & Ors. ...Opposite Parties Counsel for the Applicant: Sri Akash Chandra Maurya Counsel for the Opposite Parties: G.A. Criminal Law - Code of Criminal Procedure,1973 - Section 173 (2)- Impugned order allowed the final reportaccepted without assigning any reason-applicant claim self posted signature of the Applicant upon the notice was produced-but no handwriting expert was sought-on submission of police report u/s 173(2) Cr.P.C.-Magistrate 4 All. Rashmi Devi Vs. State of U.P. & Ors. 809 decides to accept it and to not take cognizanceinformant was served notice which was not availed by he. Application dismissed. (E-9) List of Cases cited: 1. K.P. Ramasamy & ors. Vs R. Dharmalingam & ors., decided on 24.01.2020 2. Gangadhar Janardan Mhatre Vs St. of Mah., 2004 CrLJ 4632 (Delivered by Hon'ble Umesh Chandra Sharma, J.) 1. Heard Sri Akash Chandra Maurya, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned Additional Government Advocate for the State and perused the record. 2. This application under Section 482 CrPC has been moved to quash the order dated 12.08.2021 passed by the Additional Chief Judicial Magistrate-I, Kanpur Dehat in Misc. Case No.1319 of 2019 by which the final report in Crime No.476 of 2018, under Sections 504, 506 and 427 of IPC and under Section 4/10 of Indian Forest Act, 1927 sent by Police Station Mangalpur, Kanpur Dehat was allowed and the Criminal Revision No.41 of 2021 (Rashmi Devi Vs. State of U.P. and others) was also dismissed by Additional Sessions Judge/Special Judge (NDPS Act), Court No.7, Kanpur Dehat vide order dated 26.09.2022. 3. The facts of the case and ground of the application under Section 311 CrPC in brief are that the applicant lodged an FIR on 18.12.2018 against opposite party nos.2 to 5 under the aforesaid sections in which after investigation, the investigating officer (I.O.) submitted the final report No.45 of 2019 on 14.04.2019 before the concerned Magistrate. According to the applicant the Additional Chief Judicial Magistrate-I, Kanpur Dehat accepted the said final report on 12.08.2021 without assigning any reason. At that time, there were holidays on account of COVID-19, hence the concerned police had not taken any receiving from the applicant with regard to the said final report and self posted signature of the applicant upon the notice was produced before the Court on 30.08.2021. When the applicant enquired, she came to know that the final report had been accepted on 12.8.2021, hence she filed the aforesaid criminal revision which has also been dismissed. 4. It is a settled law that service of notice before filing the final report is must, hence both the impugned orders be quashed and concerned Magistrate be directed to hear the matter on protest petition. 5. A supplementary affidavit has been filed by the brother-in-law of the applicant along with the certified copy of the order sheets. Notices were sent to the opposite party nos.2 to 5 which are served personally and through their family members but neither they appeared nor they filed any counter affidavit, hence heard Sri Akash Chandra Maurya, learned counsel for the applicant and Sri Pankaj Kumar Tripathi, learned Additional Government Advocate and perused the record. 6. From perusal of the record, it transpires that on 12.08.2021 the final report was accepted after service of notice upon the complainant but when the complainant did not appear on the date of hearing, the trial court heard the counsel for the State and perusing the record, 810 INDIAN LAW REPORTS ALLAHABAD SERIES concluded that on the basis of statement, inspection and other collected material, no commission of offence by the accused persons have been proved and therefore, accepted the final report. The order of Additional Chief Judicial Magistrate-I was challenged through Criminal Revision No.41 of 2021 in which proper opportunity of hearing was provided to the applicant. The learned Revisional Judge found that the informant had appropriately been served through notices on 01.11.2019 and 11.08.2021 and her signatures were found thereon. It has also been noticed that on 04.10.2019, the final report had been submitted in the Court and thereafter notices were issued to her when there was no COVID-19 pandemic, hence the revision was dismissed. 7. Being aggrieved, the informant has filed this application under Section 482 CrPC. 8. According to this Court, if the applicant was of the view that her forged and fictitious signature had been obtained by the police, an occasion was available to her to get the expert opinion that the signatures present on the notices were not put by her but this remedy has not been availed by her. 9. Since the proper opportunity had been provided to the applicant and the notices were also served before accepting the final report, hence the case of K.P. Ramasamy and others Vs. R. Dharmalingam and others, decided on 24.01.2020 by the Apex Court could not be applied in favour of the applicant. 10. In Gangadhar Janardan Mhatre Vs. State of Maharastra, 2004 CrLJ 4632, it has been held that when on submission of police report under Section 173(2) Cr.P.C., the Magistrate decides to accept it and not to take cognizance and to drop the proceeding against the all or some of the accused, the informant is entitled to a notice and opportunity to be heard at the time of consideration of such final report. In this case before accepting the final report, the Magistrate had served notice upon the applicant which was not availed by her. 11. In view of the above, the present application lacks merit and is liable to be dismissed. 12. This application under Section 482 CrPC is accordingly dismissed. ---------- (2023) 4 ILRA 810 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.12.2022 BEFORE THE HON'BLE ARVIND KUMAR MISHRA-I, J. Application U/S 482. No. 35719 of 2022 Jijo C. George ...Applicant Versus State of U.P. & Ors. ...Opposite Parties Counsel for the Applicant: Sri Arun Kumar Tripathi, Sri V.P, Srivastava (Sr. Adv.) Counsel for the Opposite Parties: G.A., Sri Amit Tiwari, Sri Shakti Shanker Tiwari, Sri Subash Chandra Tiwari Criminal Law- Code of Criminal Procedure, 1973-Sections 157,173 & 482 Constitution of India, 1950-Article 21, 227-Applicant blackmailed the prosecutrix and committed rape upon her due to which she became pregnant which resulted in