# Rinku Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 355
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Application u/s 482 No. 3473 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinku-singh-v-state-of-u-p-anr-opp-parties-49927
- **Pages:** 5

## Headnote

A. Criminal Law -Code of Criminal
Procedure, 1973-Section 482 & 91-
Narcotics
Drugs
and
Psychotropic
Substances Act, 1985-Sections 18/20applicant arrested and was produced
before the court allowing the remand-the
court below directed the Superintendent
of Police to conduct an inquiry regarding
the reality and correctness of the First
Information
Report-present
applicant
356 INDIAN LAW REPORTS ALLAHABAD SERIES
appeared before the court and moved an
application u/s 91 Cr.P.C. for considering
the enquiry report before framing charge -
the court below rejected the same stating
that allowing the application u/s 91
Cr.P.C. would mean to interfere in the
investigation/trial, Section 91 Cr.P.C. does
not confer any right on the accused to
produce documents in order to prove his
defence-It is settled law that at the stage
of summoning or framing of charge, the
accused cannot ordinarily invoke section
91 Cr.P.C., however the court being under
obligation to impart justice and to uphold
the law, is not debarred from exercising
its power, if the interest of justice in a
given case is so require, even if the
accused may have no right to invoke
section 91 Cr.PC and the court is satisfied
that the material available with the
investigator, not made part of the charge
sheet, has crucial bearing on the issue of
summoning or framing of charge, it can
always
direct
the
investigator/
prosecutor/ trial court to place the same
before the court concerned for proper
adjudication of the matter-when the initial
order taking cognizance is bad, therefore,
the consequential order framing charges
against the applicant has to be set asideIt is settled legal proposition that if initial
action is not in consonance with law, all
subsequent
and
consequential
proceedings would fall through for the
reason that illegality strikes at the root of
the order.(Para 1 to 20)

The application is allowed. (E-6)
List of Cases cited:

## Text

4 All. Rinku Singh Vs. State of U.P. & Anr.
355
by the learned trial Magistrate because of
the absence of the complainant, who was to
lead evidence on the date fixed for hearing.
Therefore, by virtue of the provisions of
Section 256 of the Code, for all intents and
purposes the impugned order is an order of
acquittal.

5. Sub-section (4) of Section 378 of the
Code provides that against an order of
acquittal passed in any case instituted upon
complaint, the complainant, after grant of
special leave to appeal from the order of
acquittal may present an appeal to the
High Court. Thus, a complainant has a
right of appeal against an order of
acquittal.

6. Sub-section (1) of Section 410 of the
Code provides that where under the Code,
an appeal lies and no appeal is brought, no
proceedings by way of revision shall be
entertained at the instance of the party who
would have appealed.

8. Since the remedy of the petitioner
was by way of appeal against the impugned
order of acquittal, therefore, there being
specific grievance, the petitioner cannot be
permitted
to
invoke
the
inherent
jurisdiction of this Court under Section 482
of the Code."

7. In the cited case the complainant
had filed a complaint under Section 138 NI
Act and when he did not appear before the
court, the accused was acquitted which was
challenged by the complainant in the High
Court by way of a criminal revision and
under Section 482 CrPC as well. The High
Court of Himachal Pradesh concluded that
if an order of acquittal has been passed
under Section 256 CrPC, the complainant
has a remedy to file an appeal against the
acquittal in High Court after grant of
special leave to appeal. The Court had also
referred Section 410(1) CrPC that where
under the Code an appeal lies and no
appeal is brought, no proceeding byway of
revision shall be entertained at the instance
of the party who would have appealed.

8. Whether a petition under Section
482 CrPC lies, has also been discussed by
the court that if a remedy of appeal is
available the petitioner cannot be permitted
to invoke inherent jurisdiction of High
Court under Section 482 CrPC.

9. In view of the above discussion, the
present petition is not maintainable and is
accordingly dismissed without prejudice to
any other legal remedy available to the
petitioner.
----------
(2023) 4 ILRA 355
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 3473 of 2023

Rinku Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Kripa Kant Pandey, Sri Rajiv Lochan Shukla

Counsel for the Opp. Parties:
G.A.

A. Criminal Law -Code of Criminal
Procedure, 1973-Section 482 & 91-
Narcotics
Drugs
and
Psychotropic
Substances Act, 1985-Sections 18/20applicant arrested and was produced
before the court allowing the remand-the
court below directed the Superintendent
of Police to conduct an inquiry regarding
the reality and correctness of the First
Information
Report-present
applicant
356 INDIAN LAW REPORTS ALLAHABAD SERIES
appeared before the court and moved an
application u/s 91 Cr.P.C. for considering
the enquiry report before framing charge -
the court below rejected the same stating
that allowing the application u/s 91
Cr.P.C. would mean to interfere in the
investigation/trial, Section 91 Cr.P.C. does
not confer any right on the accused to
produce documents in order to prove his
defence-It is settled law that at the stage
of summoning or framing of charge, the
accused cannot ordinarily invoke section
91 Cr.P.C., however the court being under
obligation to impart justice and to uphold
the law, is not debarred from exercising
its power, if the interest of justice in a
given case is so require, even if the
accused may have no right to invoke
section 91 Cr.PC and the court is satisfied
that the material available with the
investigator, not made part of the charge
sheet, has crucial bearing on the issue of
summoning or framing of charge, it can
always
direct
the
investigator/
prosecutor/ trial court to place the same
before the court concerned for proper
adjudication of the matter-when the initial
order taking cognizance is bad, therefore,
the consequential order framing charges
against the applicant has to be set asideIt is settled legal proposition that if initial
action is not in consonance with law, all
subsequent
and
consequential
proceedings would fall through for the
reason that illegality strikes at the root of
the order.(Para 1 to 20)

The application is allowed. (E-6)
List of Cases cited:

1. Nitya Dharmananda @ K. Lenin Vs Gopal
Sheelum Reddy (2018) 102 ACC 635

2. St. of Punj, Vs Davinder Pal Singh Bhullar &
ors. (2011) 14 SCC 770

3. Mangal Prasad Tamoli Vs Narvadeshwar
Mishra (2005) 3 SCC 422
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J)

1. Heard Mr. Rajiv Lochan Shukla,
learned counsel for the applicant and Mr.
Amit Singh Chauhan, learned A.G.A. for
the State.

2. The Present case has been filed
assailing the order dated 03.12.2022 passed
by learned Additional District and Sessions
Judge, Fast Track Court, Second, District-
Hapur in Special Session Trial No.159 of
14 (New No.78 of 2015) vide which the
applicant's application under Section 91
Cr.P.C. has been rejected.

3. Brief facts of the case are that an
FIR was lodged by opposite party no.2, S.I.
Sanjay Tyagi, against the applicant and coaccused Gaurav Tyagi on 03.07.2014,
which was registered as Case Crime
No.297 of 2014, under Section 18/20 of
N.D.P.S. Act, at Police Station- Pilakhua,
District- Hapur. The applicant was arrested,
after which, he was produced before the
Court concerned on 04.07.2014 in police
custody and remand was sought by the
Police/Investigating Officer and the learned
Court below allowed the remand of the
applicant till 18.07.2014 vide order dated
04.07.2014. The Court concerned while
allowing the remand has recorded the
statement of the present applicant on oath.
Considering the aforesaid natural and
trustworthy
statement
of
the
present
applicant as well as the provisions of
Section 58 N.D.P.S. Act, the Court below
directed the Superintendent of Police,
Hapur to conduct an inquiry regarding the
reality
and
correctness
of
the
First
Information Report dated 03.07.2014 and
further directed that the said inquiry report
be placed before the learned Court below.
The Investigating Officer was directed to
give a copy of the aforesaid order to
Superintendent of Police, Hapur, DIG,
Meerut Range, Meerut by order dated
4 All. Rinku Singh Vs. State of U.P. & Anr.
357
05.07.2014 and submit a report before the
Court concerned. The DIG, Meerut was
directed to be given a copy of the aforesaid
order with the observation that he may
direct Superintendent of Police, Hapur to
place the enquiry report before the Court
concerned and shall also supervise the
enquiry.

4. Pursuant to the order dated
04.7.2014 passed by the learned Additional
District and Sessions Judge, Ghaziabad, the
Superintendent of Police, Hapur, placed the
letter before the learned Court below dated
05.07.2014 whereby one week's further
time was sought by him to submit the
aforesaid inquiry report as directed by
order dated 04.07.2014. On the aforesaid
application, the learned Court below vide
order dated 07.07.2014 directed that the
said enquiry report may be submitted
before the learned Court below prior to
17.07.2014.

5. After completing the investigation,
charge sheet was submitted against the
present applicant on 30.08.2014 and
accordingly, the learned Court of Sessions
Judge, Ghaziabad took cognizance on the
aforesaid charge sheet vide order dated
13.10.2014
and
the
applicant
was
summoned to face the trial, registering the
case as Special Session Trial No.159 of
2014 (State Vs. Rinku).

6. In the meantime, the present
session case was transferred to District
Hapur from the Court of District Judge,
Ghaziabad on 23.11.2015 by order of
District Judge Ghaziabad dated 21.11.2015
in view of order passed by the Hon'ble
High Court and the same was received by
the District Court Hapur. Thereafter, the
aforesaid case was registered before the
Sessions Judge, Hapur as Special Session
Trial No.78 of 2015 (State Vs. Rinku).

7. The present applicant appeared
before the aforesaid Court and moved an
application under Section 91 Cr.P.C. on
25.08.2017, whereby he prayed that the
enquiry report as directed by Court below
vide order dated 04.07.2014 may be
considered before framing charge. The
aforesaid application has been rejected vide
order dated 03.12.2022 and charges have
been framed on 02.03.2023, hence, the
present application has been filed.

8. Learned counsel for the applicant
submits that if the Court is satisfied that the
material of sterling quality has been
withheld by the Investigator/Prosecutor, it
can summon or rely upon the same, even if,
such document is not part of the charge
sheet, hence, the Court has committed
illegality in not considering the fact,
though, the enquiry report which was
important for proper adjudication of the
matter was not placed before the concerned
Court.
The
Court
should
not
have
proceeded to take cognizance of the matter.
In support of his submission, learned
counsel for the applicant has relied upon a
judgement of Hon'ble Apex Court, passed
in case of Nitya Dharmananda @ K.
Lenin Vs. Gopal Sheelum Reddy also
known as Nithya Bhaktananda, reported
in 2018 (102) ACC 635.

9. He further submits that as per
Section 91 of Cr.P.C., documents necessary
and desirable for proper adjudication of the
matter was to be placed before the Court
concerned prior to taking cognizance on the
charge sheet so submitted and in the
present case when such an enquiry report
was directed to be placed before the Court
358 INDIAN LAW REPORTS ALLAHABAD SERIES
below by order dated 04.07.2014, therefore,
the same could not have been ignored.

10. Learned A.G.A. opposing the
submission as placed by learned counsel
for the applicant, submits that Section 91 of
Cr.P.C. does not confer any right on the
accused to produce documents in order to
prove his defence. He further submits that
allowing the application under Section 91
Cr.P.C. would mean to interfere in the
investigation/trial.

11. Before appreciating the legal
submission as made by learned counsel for
the parties, it would be appropriate to place
Section 91 of Cr.P.C., which is as follows:

"'Section 91 of Cr.P.C. Summons to
produce document or other thing:- (1)
Whenever any Court or any officer in
charge of a police station considers that the
production of any document or other thing
is necessary or desirable for the purposes of
any investigation, inquiry, trial or other
proceeding under this Code by or before
such Court or officer, such Court may issue
a summons, or such officer a written order,
to the person in whose possession or power
such document or thing is believed to be,
requiring him to attend and produce it or to
produce it, at the time and place stated in
the summons or order.

(2) Any person required under this
section merely to produce a document or
other thing shall be deemed to have
complied with the requisition if he causes
such document or thing to be produced
instead of attending personally to produce
the same.

(3) Nothing in this section shall be
deemed-

(a) to affect, sections 123 and 124 of
the Indian Evidence Act, 1872 (1 1872), or
the Bankers' Books Evidence Act, 1891 (13
of 1891), or

(b) to apply to a letter, postcard,
telegram or other document or any parcel
or thing in the custody of the postal or
telegraph authority."

12. This Court feels that the Court
below vide order dated 04.07.2014 directed
for an enquiry to be conducted and the
same be placed before the Court concerned,
however, without realizing the fact that the
Court had passed the aforesaid order being
satisfied that an inquiry was required to
find out the reality and save an innocent
person from being punished, the inquiry
report was a material of sterling quality,
which was to be placed before the Court
concerned prior to taking cognizance.

13. Section 91 of Cr.P.C. also requires
that in case any Court or any officer in
charge of a police station considers that the
production of any document or other thing
is necessary and desirable for the purposes
of any investigation, inquiry, trial or any
other proceeding under this Code by or
before such Court or officer, such Court is
required to issue summons, or such officer
a written order, to the person in whose
possession or power such document or
thing is believed to be, requiring him to
attend and produce it prior to summoning
the accused.

14. In the present case, it was by order
of the Court below, the inquiry was directed
to be conducted and the report to be placed
before the Court below and even after the
same was pointed out by means of an
application being moved by the applicant
under Section 91 Cr.P.C., the Court ignoring
the aforesaid fact has committed illegality in
rejecting the aforesaid application.
4 All. Rajesh Kumar Giri Vs. State of U.P. & Ors.
359

15. It is settled law that at the stage of
summoning or framing of charge, the
accused cannot ordinarily invoke section 91
Cr.P.C. However, the Court being under the
obligation to impart justice and to uphold
the law, is not debarred from exercising its
power, if the interest of justice in a given
case is so require, even if the accused may
have no right to invoke section 91 and the
Court is satisfied that the material available
with the investigator, not made part of the
charge sheet, has crucial bearing on the
issue of summoning or framing of charge, it
can
always
direct
the
investigator/prosecutor/trial Court to place
the same before the Court concerned for
proper adjudication of the matter.

16. This Court also feels that when
the initial order taking cognizance is bad,
therefore, consequential order framing
charges against the applicant has to be set
aside.

17. It is a settled legal proposition that
if initial action is not in consonance with
law, all subsequent and consequential
proceedings would fall through for the
reason that illegality strikes at the root of
the order. The aforesaid has been held by
the Apex Court in the case of State of
Punjab vs. Davinder Pal Singh Bhullar
and others reported in (2011) 14 SCC 770.

18. Similarly, the Apex Court in the
case of Mangal Prasad Tamoli vs.
Narvadeshwar Mishra reported in (2005)
3 SCC 422, has held that if an order at the
initial stage is bad in law, then all further
proceedings, consequent thereto, will be
non est and have to be necessarily set aside.

19. In view of the above discussion,
the impugned order dated 03.12.2022 and
consequential
order
dated
02.03.2022
framing charges against the applicant,
cannot be legally sustained and are hereby
set aside. Matter is remitted back to
Additional District and Sessions Judge,
Fast Track Court, Second, District Hapur
for decision afresh. While deciding the
matter, he shall pass a reasoned and
speaking order, keeping in mind the
relevant provisions of Section 91 of Cr.P.C.
and the observation made by this Court,
preferably within a period of one month
from the date of production of certified
copy of this order, if there is no legal
impediment.

20. With the aforesaid observation
and direction, the application u/s 482
Cr.P.C. is allowed.

21. Office is directed to communicate
this order to the Court concerned forthwith.
----------
(2023) 4 ILRA 359
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.03.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application u/s 482 No. 5260 of 2023

Rajesh Kumar Giri ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Dipak Srivastava

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 354-A, 504,
506 & 7/8 -The Protection of Children
from Sexual offences Act, 2012-Quashing
of
entire
criminal
proceedings-