# Ravindra Kumar Yadav v. State of U.P

- **Citation:** (2020) 1 ILRA 1615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Case number:** Application U/S 482/378/407 No. 3242 of 2009
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-kumar-yadav-v-state-of-u-p-45671
- **Pages:** 5

## Headnote

A. Criminal Procedure Code, 1973 -
Section 190 (1) (a) Cr.P.C.- Cognizance -
The Court has to make Prima Facie
satisfaction on the allegations made in
the Complaint-

The correctness of the allegations made in the
Complaint and in the statements of the
witnesses u/s 200/202 Cr.Pc can only be
adjudged on the basis of evidence led during
the trial. At the stage of taking cognizance the
Magistrate has to see only that a prima facie
case is made out on the basis of the Complaint.
( Para 10)

B. Criminal Procedure Code, 1973 -
Section 190 (1) (a) Cr.P.C- Defence of the
accused- Involvement of the person and
not of his innocence or any version in
defence of the accused is not to be seen.

At the stage of cognizance, court is concerned
with the involvement of the person and not of
his innocence, therefore any version in defence
of the accused is not to be seen and the same
has to be adjudicated by the magistrate during
the course of the trial. ( Para 12)

C.Criminal Procedure Code, 1973 - Section
482 - Scope-The High Court is not to
appreciate and analyse factual aspect of
case because the same is a question of
evidence before the trial Court.

What is necessary is to see whether an error is
committed by the Magistrate while taking
cognizance of the offence on the basis of facts
alleged and materials placed before it and the
Court cannot look into or appreciate evidence
under Section 482 Cr.P.C. ( Para 10, 13)

Exercising the extraordinary power of the Court
conferred under Section 482 Cr.P.C., the
applicant directed to appear before the Court
concerned within three weeks from the date
certified copy is issued, alongwith his counsel
and the learned Court of Magistrate concerned
is directed to record his appearance through
counsel, without taking him into custody
subject to his producing proper bail bonds and
sureties to the satisfaction of the Court
concerned,
on
the
same
day
of
the
appearance. ( Para 19)

Criminal Application disposed of.(E-3)

Case law/ Judgements relied upon:-

## Text

1616 INDIAN LAW REPORTS ALLAHABAD SERIES

19. This Court may also take notice of the
fact that the power of superintendence conferred
under Article 227, is to be exercised most
sparingly and within the parameters which have
been summarized in the case of Shalini Shyam
Shetty & Anr. Vs. Rajendra Shankar Patil10,
and also in the case of Radhey Shyam & Anr.
Vs. Chhabi Nath & Ors.11.

20. Counsel for the petitioner has not
been able to point out any material error or
illegality in the orders passed by the court
below so as to warrant interference in
exercise of power under Article 227 of the
Constitution of India.

21. The petition lacks merit and is
accordingly dismissed.
----------
(2020)1ILR 1615

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Application U/S 482/378/407 No. 3242 of 2009

Ravindra Kumar Yadav ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
S.K. Upadhyay

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Procedure Code, 1973 -
Section 190 (1) (a) Cr.P.C.- Cognizance -
The Court has to make Prima Facie
satisfaction on the allegations made in
the Complaint-

The correctness of the allegations made in the
Complaint and in the statements of the
witnesses u/s 200/202 Cr.Pc can only be
adjudged on the basis of evidence led during
the trial. At the stage of taking cognizance the
Magistrate has to see only that a prima facie
case is made out on the basis of the Complaint.
( Para 10)

B. Criminal Procedure Code, 1973 -
Section 190 (1) (a) Cr.P.C- Defence of the
accused- Involvement of the person and
not of his innocence or any version in
defence of the accused is not to be seen.

At the stage of cognizance, court is concerned
with the involvement of the person and not of
his innocence, therefore any version in defence
of the accused is not to be seen and the same
has to be adjudicated by the magistrate during
the course of the trial. ( Para 12)

C.Criminal Procedure Code, 1973 - Section
482 - Scope-The High Court is not to
appreciate and analyse factual aspect of
case because the same is a question of
evidence before the trial Court.

What is necessary is to see whether an error is
committed by the Magistrate while taking
cognizance of the offence on the basis of facts
alleged and materials placed before it and the
Court cannot look into or appreciate evidence
under Section 482 Cr.P.C. ( Para 10, 13)

Exercising the extraordinary power of the Court
conferred under Section 482 Cr.P.C., the
applicant directed to appear before the Court
concerned within three weeks from the date
certified copy is issued, alongwith his counsel
and the learned Court of Magistrate concerned
is directed to record his appearance through
counsel, without taking him into custody
subject to his producing proper bail bonds and
sureties to the satisfaction of the Court
concerned,
on
the
same
day
of
the
appearance. ( Para 19)

Criminal Application disposed of.(E-3)

Case law/ Judgements relied upon:-

1. Mohd. Allauddin Khan Vs. St. of Bih.& ors,
AIR 2019 SC 1910
1 All. Ravindra Kumar Yadav Vs. State of U.P.
1617
2. Arnesh Kumar Vs. St. of Bih.& Anr., (2014) 8
SCC 273

(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The case is called out.

2. In the revised call of the list,
learned counsel Sri S.K. Upadhyay,
Advocate appears on behalf of the
applicant to press his case. Learned
A.G.A. for the State is also present.

3. In the nut shell, the case, as
emerging from the materials available on
record, seems to have arisen from a
matrimonial dispute which is long drawn.
The parties to the marriage respectively,
the applicant-Ravindra Kumar Yadav and
the opposite party no.2-Anita Yadav
entered into their marital life by virtue of
marriage on 23.04.2000. Thereafter, they
fell into dispute and differences in their
marital life which resulted into going out
of the wife from her matrimonial home.
Consequent
thereupon,
a
suit
for
restitution of conjugal rights was filed by
the applicant-husband which was decreed
on 28.09.2005 in his favour.

4. Learned counsel for the applicant
vehemently press this fact for the reason to
show the justification of the complaint
filed by the opposite party no.2-wife on
22.04.2006 which is subsequent to decree
of restitution of conjugal rights.

5. Learned counsel for the applicant
further states that instead of obeying the
decree of Conjugal Rights, she (opposite
party no.2) remained busy in continuing
the dispute on this way or that way and
therefore, filed a complaint against the
applicant on 27.06.2006 with an allegation
that a motor bike was given, by the parents
of the complainant in dowry which was
fraudulently and deceitfully converted into
the name of applicant. As such, she charged
him for committing offences under Section
420, 467, 468 and 506 of I.P.C.

6. Learned counsel further argues
that in the above context, the statements
under Section 200 and 202 Cr.P.C. were
recorded and the Court took cognizance of
offences under Section 420, 467, 468 and
506 of I.P.C. and issued summons vide
order dated 20.01.2007.

7. The order sheet reveals that effort
of personal service upon opposite party
no.2, of notice of the case was repeatedly
made but all went in vain. However, from
the materials available on record, it
becomes clear that the opposite party no.2the wife is residing in Lucknow separately
and also, neither the registered post A.D.
nor the processes issued by the Court
could be served upon her.

8. Learned A.G.A. for the State is
present. The legal issue involved necessary
for disposal of application under Section
482 Cr.P.C. is to be addressed by him.
Therefore, heard the case to decide it
finally on merit.

9. The moot question involved in the
case is that whether the Court was justified
in taking the cognizance of offence under
Section 420, 467, 468 and 506 of I.P.C.
and the another question that whether the
defence, as argued by the learned counsel
for the applicant may be taken into
consideration for quashing the summoning
order at this stage by the High Court in
application under Section 482 Cr.P.C.

10. So far as, the power of taking
cognizance of the Court is concerned,
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
undoubtedly, the Court has to make prima
facie satisfaction as to the allegations
made in the complaint and the supporting
evidences. The record shows that the
complainant has pleaded the factum of
marriage
with
the
applicant
and
presentation of motor bike as gift in the
marriage with him. While hearing the
revision, it is not disputed on the part of
applicant also. So far as the allegations as
to changing ownership fraudulently in
deceitful manner is concerned, if originally
the bike is not in the name of the applicant
and if allegation is made that mutation of
the name of the applicant is made in place
of his wife without her knowledge and
consent in the papers namely registration
of the vehicle though is to be adjudged on
the basis of evidences on establishing it
true or false in the course of trial, but that
is sufficient for satisfaction of magistrate
for taking cognizance of offence to call the
accused-applicant for trial. Before holding
any allegation as true or discarding the
same holding false, what is necessary is to
see whether an error is committed by the
Magistrate while taking cognizance of the
offence on the basis of facts alleged and
materials placed before it. It is not
necessary to look into or appreciate
evidences whether it is contradictory,
inconsistent, false or true etc. Hon'ble the
Supreme Court in appeal against the order
of High Court held in AIR 2019 SC 1910
(Mohd. Allauddin Khan Vs. State of
Bihar and others) that the High Court had
no jurisdiction to appreciate the evidences
of the proceedings under Section 482
Cr.P.C.
because
where
there
are
contradictions or the inconsistencies in the
statements of the witnesses, is essentially
an issue relating to appreciation of
evidences and the same can be gone into
by the Judicial Magistrate during trial,
when the entire evidence is adduced by the
parties. Para 17 of the judgment of Hon'ble
the Supreme Court quoted hereunder:

"17. 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."

11. All facts of complaint stated
before the Court of magistrate supported
with applicant statement on oath by the
complainant and her witness alongwith the
documents relating to the name over the
documents relating to bike showing the
name of complainant and afterwards the
conversion into the name of applicant, is
prima facie fulfilling elements of offences
charged over the accused-applicant namely
under Sections 420, 467 and 468 of the
I.P.C., as they are defined in the I.P.C.

12. It is argued by the applicant that
all these allegations have arisen out of
matrimonial dispute. After the marriage
transfer of the name was consented. But
this is a defence, it may or may not be
consented is to be adjudged by the
magistrate, if pursuant to the summon, the
applicant who is accused, appears before it
and put his said defence alongwith
evidences. The Court has to weigh the
evidences of both the parties in the light of
pending matrimonial dispute, keeping into
consideration that the complaint is filed
after a decree of restitution of Conjugal
Rights. It would be too early to record any
finding in this regard by this Court.
1 All. Ravindra Kumar Yadav Vs. State of U.P.
1619

13. As such, at this stage, the Court
sitting under Section 482 Cr.P.C. is not
capable to weigh the evidences put forth or
proposed by the applicant under Section
482 Cr.P.C.

14. In view of the above, the
application under Section 482 Cr.P.C.
does not deserve to be allowed for
quashing of the summoning order and
further proceeding.

15. In criminal law, the accused faces
the risk of losing personal liberty. Hon'ble
the Supreme Court in an erudite judgment
in Arnesh Kumar Vs. State of Bihar and
Anr., (2014) 8 SCC 273 expressed a
serious concern about the manner in which
arrests were being made in matrimonial
disputes under Section 498-A of the Indian
Penal Code. Directions were given in all
states to instruct their police not to
mechanically resort the power of arrest
under Section 41 of the Cr.P.C. and imply
the provision of notice under Section 41-A
of the Cr.P.C.

16. In present case, the accusedapplicant was summoned after taking
cognizance of the offences by the
magistrate vide order dated 20.01.2007
fixing a date for his appearance on
08.03.2007.
The
court
passing
the
summoning order was Special Additional
Chief Judicial Magistrate, CBI (Ayodhya
Prakaran Lucknow) whereas, the case
according to the accused, pertains to
district Barabanki and thereafter, the
proceeding was transferred to Fourth
Additional Civil Judge, Junior Division,
Room No.36. In the light of the aforesaid
facts, the applicant takes the plea of having
been mislead thereby. He specifically
stated in affidavit para 24 that the order of
Summoning has not been served upon the
petitioner and as and when it has come
into knowledge of the petitioner, he
managed the fund and get the copy of the
court and the delay in approaching this
Hon'ble
is
neither
deliberate
nor
intentional.

17. The issuance of process by the
magistrate after taking cognizance of the
offences against the accused is only with a
view to procure and ensure the attendance
of the accused in trial. In a case, where
after a prolonged litigation the parties are
in bitter relation between them and the
accused-applicant is feared of the coercive
processes like arrest and detention into
custody, if willing to appear before the
Court so as to get the proceeding pending
against him, his appearance should be
facilitated in the interest of justice.

18. In the present case, the materials on
record are sufficient to reveal that the parties
by reason of matrimonial dispute arisen just
after their marriage in the year 2000, fell into
bitter relations with each other. However, a
decree of restitution of Conjugal Rights is
passed in favour of the applicant, even then
instead of getting into the matrimonial life,
again the parties are litigating several cases,
the present case is one of them.

19. Exercising the extraordinary
power of the Court conferred under
Section 482 Cr.P.C., this Court directs the
applicant to appear before the Court
concerned within three weeks from the
date certified copy is issued, alongwith his
counsel
and
the
learned
Court
of
Magistrate concerned is directed to record
his appearance through counsel, without
taking him into custody subject to his
producing proper bail bonds and sureties
to the satisfaction of the Court concerned,
on the same day of the appearance.
1620 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In doing so, the learned court is
directed not to enforce the coercive
process/orders, if any, passed by it for the
purpose of taking him into custody or to
make his arrest. The purpose, as discussed
here in above is only to decide the case
between the parties and not to harass by
physical arrest.

21. Learned A.G.A. would have no
objection in passing such direction to the
Court concerned as the interest of the State
is also in getting dispose of huge pendency
in the criminal courts.

22. It is further made clear that if the
parties are willing and consented to get
their dispute settled amicably by way of
compromise then the same may be taken
by the Court into consideration for the
purpose of disposal of the case as soon as
possible.

23. With the aforesaid observations,
the application under Section 482 Cr.P.C.
is disposed of.
----------
(2020)1ILR 1619

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.01.2020

BEFORE
THE HON'BLE DINESH KUMAR SINGH, J.

Application U/S 482/378/407 No. 4259 of 2009

Mahanth Kalyan Das & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Ravi Singh, Manoj Kumar Mishra

Counsel for the Opposite Parties:
Govt.
Advocate,
Ajai
Kumar
Verma,
Hemant
Kumar
Mishra,
Mohammad
Ehtesham Khan, Rajesh Kumar Awasthi

A. Jurisdiction - extraordinary jurisdiction
under Article 226 of the Constitution or
inherent jurisdiction under Section 482 of
the Cr.P.C. for quashing the criminal
proceedings can be exercised if the
proceedings were instituted with mala
fide intention or with ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge.

The revenue record remains in the custody of
the revenue officials. It cannot be believed that
some manipulation has been done without the
involvement of the revenue officials. No
revenue official has been made an accused. It
is not possible to manipulate the revenue
record without the involvement of the revenue
official. It is the duty of the Court to ensure
that the criminal prosecution is not used as an
instrument of harassment or for seeking private
vendetta. (Para 22)
Application U/s 482/378/407 allowed. (E-10)

List of cases cited: -

1. State of Haryana and ors Vs. Bhajan Lal and
ors 1992 Supp (1) SCC 335 (followed)

2. Inder Mohan Goswami and anr Vs. State of
Uttaranchal and ors (2007) 12 SCC 1

3. Indian Oil Corpn. Vs. NEPC India Ltd. And
ors (2006) 6 SC 736

4. Anand Kumar Mohatta and anr Vs. State
(Govt. of NCT, Delhi), Department of Home
and anr Criminal Appeal No. 1395 of 2018

5. State of Karnataka Vs. L. Muniswamy and
ors 1977 (2) SCC 699

(Delivered by Hon'ble Dinesh Kumar Singh, J.)

1. The present petition under Section
482 Cr.P.C. has been filed for quashing the