# Richa Dubey v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Application U/S 482 No. 12495 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/richa-dubey-v-state-of-u-p-anr-46576
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419 & 420 - Applicant used sim issued
in the name of her servant-gross violation of
Telecom Regulatory Authority-offence u/s 419,
420 IPC made out-at the stage of issuing
process , the court below not expected to
examine material placed on record.

Application dismissed. (E-9)

Held, The High Court would not embark upon an
inquiry as it is the function of the Trial Judge/Court.
The interference at the threshold of quashing of the
criminal proceedings in case in hand cannot be said to
be exceptional as it discloses prima facie commission
of an offence. In the result, the prayer for quashing of
impugned charge sheet, cognizance order and the
entire proceedings of the case is refused.(para 17)
(E-9)

List of Cases cited:

## Text

11 All. Richa Dubey Vs. State of U.P. & Anr.
449

34. Contention of applicant's counsel that
return was filed prior to issuance of any notice
by the department is to be examined in terms of
the use of word ''or' under sub-Sections (1) or (2)
of Section 139. Word ''or' is normally
disjunctive and ''and' is normally conjunctive as
has been held in case of Hyderabad Asbestos
Cement Products and others vs. Union of India
and others; (2000) 1 SCC 426, wherein, it is
held that ''or' in its natural sense denotes an
''alternative' and is not read as ''substitutive'.

35. In case of Nasiruddin Vs. State
Transport Appellate Tribunal; AIR 1976 SC 331
P.338 quoting Scrutton L.J. in Green v.
Premier Glynrhonwy Slate Co. (1928) 1 KB
561, 568 it is held that "You do sometimes read
''or' as ''and' in a statute. But you do not do it
unless you are obliged because ''or' does not
generally mean ''and' and ''and' does not
generally mean ''or'.

36. Lord Halsbury in case of Mersey
Docks and Harbour Board v. V. Henderson
Brothers; (1888) 13 AC 595, P.603 and
Supreme Court in case of Pooran Singh and
others Vs. State of M.P.; AIR 1965 SC 1583
(para-5) has held that the reading of ''or' as ''and'
is not to be resorted to, "unless some other part
of the same statute has the clear intention of it
requires that to be done.

37. In case of Union of India (UOI) and
Ors. vs. Ind-Swift Laboratories Ltd. (2011) 4
SCC 635, In Para-18, it is held that where
provision is clear and unambigous the word ''or'
cannot be read as ''and' by applying the principle
of reading down.

38. Thus, when examined in light of said
legal position, then the argument that applicant
had already furnished his return in terms of
Section 139 (4) will not take away the liability
of filing the return ''in due time' as mentioned in
Section 276-CC, merely because no notice was
issued prior to filing of the return.

39. Law laid down in case of State of
Orissa and others Vs. Mohd. Illiyas (supra)
deals with situation, which are bona fide or
unintentional or genuine inability. Applicant
was, if acting bonafidely was obliged to explain
his acts to be bonafide or unintentional or
genuine inability by furnishing his explanation,
which is not on record accept a bald assertion
that notice under Section 139(2) was not
received.

40. Thus, in the light of the law laid down
by Supreme Court in case of Prakash Nath
Khanna and another Vs. Commissioner of
Income Tax and another (supra), the ratio being
that, though, plea of lack of culpable mental
state may be evoked by an accused in defense,
but that cannot be seen at the time of filing of
the complaint or at the stage of taking of the
cognizance in terms of the provisions contained
in Section 278-E(1) of the Income Tax Act,
1961, which deals with presumption of existence
of such mental state being a matter of trial and,
therefore, the petition/Application deserves to be
dismissed and is dismissed.
----------
(2021)11ILR A449
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 12495 of 2021

Richa Dubey ....Applicant
Versus
State of U.P. & Anr. ....Opposite Parties

Counsel for the Applicant:
Sri Prabha Shanker Mishra
450 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 419 & 420 - Applicant used sim issued
in the name of her servant-gross violation of
Telecom Regulatory Authority-offence u/s 419,
420 IPC made out-at the stage of issuing
process , the court below not expected to
examine material placed on record.

Application dismissed. (E-9)

Held, The High Court would not embark upon an
inquiry as it is the function of the Trial Judge/Court.
The interference at the threshold of quashing of the
criminal proceedings in case in hand cannot be said to
be exceptional as it discloses prima facie commission
of an offence. In the result, the prayer for quashing of
impugned charge sheet, cognizance order and the
entire proceedings of the case is refused.(para 17)
(E-9)

List of Cases cited:

1. R.P. Kapoor Vs St. of Punj., AIR 1960 S.C. 866

2. St. of Har. Vs Bhajanlal, 1992 SCC (Crl.)426

3. St. of Bihar Vs P.P. Sharma, 1992 SCC (Crl.)192

4. Zandu Pharmaceutical Works Ltd. Vs Mohd. Saraful
Haq & anr.;, (Para-10) 2005 SCC (Cri.) 283

5. M/s Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918

6. S.W. Palankattkar & ors. Vs St. of Bihar, 2002 (44)
ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Prabha Shankar Mishra,
learned counsel for the applicant as well as Sri
Manish Goyal, learned Additional Advocate
General assisted by Sri Rajesh Mishra learned
A.G.A. and Sri Abhijit Mukharji, learned Brief
Holder for the State and perused the record.

2. This application has been filed by the
applicant with a prayer to quash the entire
proceedings including the charge sheet and
cognizance/summoning order dated 18.2.2021,
arising out of Case No.0323 of 2021 under
Section 419, 420 IPC, P.S. Chaubeypur District
Kanpur Nagar, pending in the court of Special
Judge (D.A.A.), Ramabai Nagar (Kanpur
Dehat).

3. Learned counsel for the applicant
submits that as per the allegation in the FIR, the
applicant and 8 other co-accused were using Sim
in mobile phones which was registered on some
other person's identity. The applicant was using
mobile Sim card no.7317771173 wherein the
sim card of Mahesh, son of Bharat Prasad,
resident of Nigoha, Mau, was inserted. He
further submits that the applicant has been
falsely implicated in the present case. The
mobile used by the applicant is of her servant
and there is no allegation against the applicant
that any misuse of the aforesaid number or any
crime was committed by use of the aforesaid
customer I.d. number of Mahesh son of Bharat
Prasad.

4. Learned counsel for the applicant further
submits that the applicant had no mobile phone
of her own, so she used the mobile phone Sim
card No.7317771173 of her servant Mahesh
whenever she needed and Mahesh had no
problem with this. It was further submitted that
on 3.7.2020 in Bikru village, Police Station
Chaubeypur, District Kanpur Nagar, an incident
of shoot-out (Bikru incident) had taken place in
which husband of the applicant namely Vikas
Dubey was made accused and after the shootout, Mahesh was afraid so he left applicant's
house and went to Sitapur and left his mobile
phone Sim card bearing No.7317771173 at the
applicant house as she had no mobile phone and
Sim card of her own.
11 All. Richa Dubey Vs. State of U.P. & Anr.
451

5. Learned counsel for the applicant further
submits that Mahesh stayed in his village almost
about 3 months and during this period on the
permission of Mahesh, the applicant transferred
mobile Sim card No. 7317771173 on her own
identity. The applicant never misused the mobile
Sim card No. 7317771173 and presently the
same is registered on her own identity and
Mahesh has no problem with this even he is
staying in her house which is located in
Lucknow. Mahesh has given a notarial affidavit
before the concerned authority in this regard.
The applicant has never misused mobile Sim
card No. 7317771173 for any illegal purpose or
any criminal activity. From perusal of the entire
case diary there is not a single whisper about the
misuse
of
mobile
phone
Sim
card
No.7317771173 for any criminal purpose as well
as the owner of sim card Mahesh has not made
any complaint to the any police officer or
telecommunication officer for misuse of his
mobile and sim card by the applicant. In absence
of the complaint the whole proceeding so
initiated by the concerned police as well as
Investigating Officer is abuse of process of law.

6. Learned counsel for the applicant further
submits
that
Investigating
Officer
without
considering the legal proposition as established by
the law, in a mechanical manner has submitted the
charge sheet against the applicant and the learned
Magistrate has also taken cognizance in a routine
manner.

7. Per contra, learned AGA has filed short
counter affidavit and has submitted that the mobile
SIM card was on the name of Mahesh having
mobile Sim card No. 7317771173. This person
Mahesh was the servant of Vikas Dubey, husband
of the applicant. It is clear from the statement of
Mahesh under Section 161 CrPC that his mobile
Sim card No.7317771173 was used by the
applicant since 2017 and for this he had not given
any ''no objection' to the applicant.

8. It was further stated in the short counter
affidavit that the FIR which was lodged on
19.11.2020 under Section 419, 420 IPC is based
upon the detailed report of S.I.T. who has come to
the conclusion that there has been gross violation
of the guidelines of Telecom Regulatory
Authority by the accused applicant and other coaccused persons, which is incriminating in nature,
therefore, the ingredients of the offence under
Section 419, 420 IPC is being made out. In this
regard, the instructions and guidelines dated
9.8.2012 of the Government of India, Ministry of
Communication,
Information
Technology,
Department of Tele-communication, New Delhi
was placed which is for the purpose of verification
of mobile subscribers and Clause-7 of the
guidelines is directly applicable in the case of the
applicant. The above Clause-7 is reproduced
hereinbelow:

"Change in the name of Subscriber

The change of name of subscriber is
not permitted as the SIM card in user terminal is
not transferable. The change in name between
the blood relatives/legal heirs is permitted
provided new CAF and all the procedure as for
registering a new subscriber is followed and
new SIM card is issued. However, after the
change in name the connection shall be treated
as new connection. In such case, change in
address is not permitted. Further, No Objection
Certificate from the original user shall also be
taken. In case of death of the original user,
death certificate will suffice instead of No
Objection Certificate."

9. A bare perusal of the aforesaid provision
makes it clear that apart from blood relation the
name of SIM card holder cannot be changed or
used by any other person without any "No
Objection Certificate". This use shall entail and
presumption of act, which has been done to
cause the cheating as dishonest inducement or
452 INDIAN LAW REPORTS ALLAHABAD SERIES
fraudulent method by another person to use SIM
card without the consent of user.

10. Apart from this, Clause-10 of the
guidelines also provides that FIR may be lodged
by the concerned police official or any law
enforcement
agency
for
such
fraudulent
activities. Clause-10 of the guidelines is also
reproduced hereinbelow:

"Lodging Complaint/FIR

(i) TERM Cell shall indicate the
apparently forged cases as per their observation
in the CAF Audit giving reasons for prima facie
observation to the Licensee and marking them as
a failed case for CAF Audit. The Licensee shall
investigate such cases at their level and take
necessary action as detailed below.

(ii) In order to deal with the use of
forged
documents
for
obtaining
mobile
connections, complaint/FIR may be lodged with
the law enforcement agencies under the law of
land, The complaint should clearly mention the
information about the mobile number, type of
document forged along with the details about
the issuing authority, date of issue, Reason for
suspicion as forged document, name of the
person suspected (e.g. name of subscriber/
PoS/Franchisee/Licensee)

(iii) In cases where forged documents
are submitted by the subscriber and originals
are also forged, police complaint/ FIR shall be
lodged by the PoS/Franchisee against the
subscriber within fifteen days of bringing it to
the notice of the Licensee.

(iv) In case PoS/Franchisee fails to
lodge complaint/FIC as above, Licensee shall
lodge FIR/ Complaint against the subscriber
and Franchisee/POS within further three days.

(v) In case where it is found that the
forgery has been done by point or sale, the
Licensee shall lodge the compliant / FIR against
the franchisee/ point or sale within one week
and financial penalty shall be imposed.

(vi) In case no action is taken by the
Licensee as above or the Licensee itself is
involved in forgery, TERM Cell shall lodge
Complaint/ FIR against Licensee. Penalty shall
be imposed on all such forged cases also.

(vii) In cases where it is found that the
act of issuing connections were done by point of
sale using the document of some other
subscriber or any person without the knowledge
of the subscriber or the person, or the
documents were forged by the franchisee/PoS of
Licensee, the concerned PoS/franchisee may be
terminated by the Licensee under intimation to
the Licensor (concerned TbRM cell of DoT) and
the designated security agencies, in addition to
the actions mentioned above. The same may be
intimated to all other Licensee(s) in that Service
Area by TERM Cell. The other Licensees after
getting any such intimation shall terminate/ not
appoint any such point of sale.

(viii) No penalty shall be imposed on
the Licensee, if the laid down process of
activation/verification applicable at the time of
activation has been followed and the forgery is
done by the subscriber. In case where
activation/verification process is not followed by
the Licensee, the penalty shall be imposed even
if the documents are found to be forged."

11. Learned Additional Advocate General
Sri Manish Goyal further argued that the charge
sheet
and
cognizance
order
was
rightly
submitted against the applicants in accordance
with law, therefore, prima facie offence is made
out against the applicant.
11 All. Richa Dubey Vs. State of U.P. & Anr.
453

12. In reply thereto learned counsel for the
applicant has filed rejoinder affidavit and
reiterated the same version made in the
application under Section 482 CrPC. He further
submits that submitted that though it is an
admitted fact that there was an unfortunate
incident in which several police officials were
killed but the applicant has been roped falsely in
the present case only for the reason that she is
the wife of main accused.

13. After considering the arguments as
advanced by the learned counsel for the parties
and from the perusal of the charge sheet as well
as cognizance order and the F.I.R., this Court is
of the view that the SIM card was on the name
of Mahesh having mobile Sim card No.
7317771173, who was the servant of Vikas
Dubey (Bikru incident) and his wife i.e. present
applicant. It is clear from the statement of
Mahesh under Section 161 CrPC that his mobile
Sim card No. 7317771173 was used by the wife
of his master since 2017 and for this he had not
given any ''no objection certificate'. His master
who was also a gangster could also take away
his life if he would not comply. Therefore, the
accused being in a dominating position could
easily enable Mahesh to provide her the Sim and
use the same for her benefit. The Sim card,
therefore, may be read in the instant case within
the purview of the word ''property' under Section
415 IPC.

14. Apart from the above, the acts and
omissions of the applicant have otherwise
tainted the reputation of the servant, which is
part of his right to life under Article 21 of the
Constitution of India and it was owing to the
fear psychosis that the servant could not muster
the courage to lodge an FIR against the master,
who was a known gangster for using his Sim
card against his own will. It is only after the
incident of Bikru in Police Station Chaubeypur
that the servant rather could muster courage to
make the statement under Section 161 CrPC. So
far as mobile Sim card No. 7317771173 is
concerned, as per the record it reveals that
during investigation it was found that the short
convas under which the offences being made out
are only on impersonation and deceiving, her
servant and inducing him to deliver property
(SIM Card) without his consent. Therefore, the
ingredients for the offence under Section 419,
420 IPC are completely made out against the
applicant. In doing so there is a clear mens rea of
the applicant which is prima facie apparent on
face of the record and also as per Clause-7 and
10 of the guidelines issued by the Government
of India, Ministry of Communications and IT
Department
of
Telecommunications,
dated
9.8.2012, offence is prima facie made out
against
the
applicant.
Accordingly,
the
contention of the learned counsel for the
applicant that no offence against the applicant is
disclosed and the present prosecution has been
instituted with a malafide intention for the
purposes of harassment has no force.

15. At the stage of issuing process the
court below is not expected to examine and
assess in detail the material placed on record,
only this has to be seen whether prima facie
cognizable offence is disclosed or not. The Apex
Court has also laid down the guidelines where
the criminal proceedings could be interfered and
quashed in exercise of its power by the High
Court in the following cases:-(i) R.P. Kapoor
Vs. State of Punjab, AIR 1960 S.C. 866, (ii)
State of Haryana Vs. Bhajanlal, 1992 SCC
(Crl.)426, (iii) State of Bihar Vs. P.P. Sharma,
1992
SCC
(Crl.)192,
(iv)
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq & Anr.;, (Para-10) 2005 SCC
(Cri.)
283
and
(iv)
M/s
Neeharika
Infrastructure
Pvt.
Ltd.
vs.
State
of
Maharashtra, AIR 2021 SC 1918.

16. From the aforesaid decisions the Apex
Court has settled the legal position for quashing
of the proceedings at the initial stage. The test to
454 INDIAN LAW REPORTS ALLAHABAD SERIES
be
applied
by
the
court
is
whether
uncontroverted allegation as made prima facie
establishes the offence and whether chances of
ultimate conviction are bleak and no useful
purpose is likely to be served by allowing
criminal proceedings to be continue. In S.W.
Palankattkar & others Vs. State of Bihar,
2002 (44) ACC 168, it has been held by the
Hon'ble Apex Court that quashing of the
criminal proceedings is an exception than a rule.
The inherent powers of the High Court under
Section 482 Cr.P.C itself envisages three
circumstances
under
which
the
inherent
jurisdiction may be exercised:-(i) to give effect
an order under the Code, (ii) to prevent abuse of
the process of the court ; (iii) to otherwise secure
the ends of justice. The power of High Court is
very wide but should be exercised very
cautiously to do real and substantial justice for
which the court alone exists.

17. The High Court would not embark
upon an inquiry as it is the function of the Trial
Judge/Court. The interference at the threshold of
quashing of the criminal proceedings in case in
hand cannot be said to be exceptional as it
discloses prima facie commission of an offence.
In the result, the prayer for quashing of
impugned charge sheet, cognizance order and
the entire proceedings of the case is refused.
There is no merit in this application filed by the
applicant under Section 482 Cr.P.C.

18. In view of the aforesaid submissions
made by learned counsel for the parties, this
Court finds that prima facie no case is made out
for interference by this Court exercising power
under Section 482 CrPC.

19. Accordingly, this application under
Section 482 Cr.P.C. filed by the applicant is
dismissed.
----------
(2021)11ILR A454
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 No. 14699 of 2021

Pradeep Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajeev Ranjan Singh, Sri Rajesh Kumar Mall

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

Mines And Mineral (Development Regulation)
Act,1957 - Section 22 - For filing of a complaint
before the Jurisdictional Magistrate has not
been followed-Offences as far as relates to
penal
code-and
cognizance
taken
by
Magistrate-cannot be faulted-and in so far of
offences under MMDR Act-cognizance cannot
sustained being in violation of section 22. (E-9)

List of Cases cited:

1. Ram Bahal Vs St. of U.P. & anr., (Application u/s
482 No.19576 of 2020, decided on 20.09.2021)

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Rajesh Kumar Mall, learned
counsel for the applicant and Sri Pankaj Saxena,
learned Additional Government Advocate-I for
the State-Opposite party.

2. The present application under Section
482 of the Code of Criminal Procedure, 19731
has been filed seeking to quash the entire
proceedings as well as the Cognizance Order
dated 05.09.2019 passed by the Additional Chief
Judicial Magistrate, Court No.5, Prayagraj in
Case No.1841 of 2019 (State Vs. Bhawarjeet