# Sagar Jotwani v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 656
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-15
- **Case number:** Application U/S 482. No. 3802 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sagar-jotwani-v-state-of-u-p-anr-51939
- **Pages:** 7

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Section 370(5) - Juvenile Justice
Care and Protection of Children Act, 2015Section 79-Quashing of charge sheet and
summoning order-Applicant was charged
with employing minors in his factory
through
labour
contractor,
without
verifying their age or identities- a raid
conducted in the factory revealed the
employment of minors-In this case, the
prosecution failed to provide sufficient
evidence to establish the applicant's direct
involvement
in
employing
minors
or
exploiting
child
labour-The
court
emphasized that the issuance of process
should not be a mechanical act but must be
based on a clear application of judicial
mind and proper assessment of evidenceThe order is set aside.(Para 1 to 23)

The application is allowed. (E-6)

List of Cases cited:

1.Inder Mohan Goswami Vs St. of U.K. (2007) 12
SCC 1

## Text

656 INDIAN LAW REPORTS ALLAHABAD SERIES

42. The order passed by the learned
Magistrate
allowing
the
amendment
application, and the subsequent order of
affirmation by the revisional court, cannot
be said to suffer from any illegality, which
may warrant interference by this Court, in
exercise of its supervisory power, under
Article 227 of the Constitution.

43. The petition thus fails and is
accordingly dismissed.
----------
(2024) 5 ILRA 656
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 3802 of 2019

Sagar Jotwani ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ankit Srivastava

Counsel for the Opposite Parties:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Section 370(5) - Juvenile Justice
Care and Protection of Children Act, 2015Section 79-Quashing of charge sheet and
summoning order-Applicant was charged
with employing minors in his factory
through
labour
contractor,
without
verifying their age or identities- a raid
conducted in the factory revealed the
employment of minors-In this case, the
prosecution failed to provide sufficient
evidence to establish the applicant's direct
involvement
in
employing
minors
or
exploiting
child
labour-The
court
emphasized that the issuance of process
should not be a mechanical act but must be
based on a clear application of judicial
mind and proper assessment of evidenceThe order is set aside.(Para 1 to 23)

The application is allowed. (E-6)

List of Cases cited:

1.Inder Mohan Goswami Vs St. of U.K. (2007) 12
SCC 1

2. Lalankumar Singh & ors. Vs St. of Mah. (2022)
SCC Online SC 1383

3. Pepsi Foods Ltd. Vs J.M. (1998) 5 SCC 749.

4. Mehmood UL Rehman Vs Khazir Mohammad
Tunda & ors. (2015) 12 SCC 420

5. St. of Har. Vs Bhajan Lal (1992) Supp (1) SCC
335

6. R.P. Kapoor Vs St. of Punj. (1990) AIR SC 866

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

8. St. of Bih. Vs P.P. Sharma (1992) SCC (Crl.)
192

9. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr.(2005) SCC (Crl.) 283 para 10

10. S.W. Palankattkar & ors. Vs St. of Bih. (2002)
44 ACC 168

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

1. Heard Shri Ankit Srivastava, learned
Counsel for the applicant, Shri Rajeev
Kumar Verma, learned A.G.A. for the Stateopposite party and perused the entire
material placed on record.

2. The present application under
Section 482 Cr.P.C. has been filed on behalf
of the applicant,namely-Sagar Jotwani
seeking quashing of the charge sheet dated
24.12.2017 submitted in Case Crime
No.487/2017 before the Court of Chief
5 All. Sagar Jotwani Vs. State of U.P. & Anr.
657
Judicial Magistrate, Lucknow under Section
79 of the Juvenile Justice Care and
Protection of Children Act, 2015 and
summoning order dated 13.09.2018 passed
by Court of Chief Judicial Magistrate,
Lucknow in Criminal Case No.54326/2018
whereby cognizance has been taken and the
applicant has been summoned under Section
370(5) I.P.C. and Section 79 of Juvenile
Justice Care and Protection of Children Act,
2015 and bailable warrant dated 15.03.2019
passed in the aforesaid case against the
applicant.

3. Learned Counsel for the applicant
submits that the applicant is Sole Proprietor
of the proprietorship known as 'Kumar
Dalmoth Factory.' having its registered
address at Annaura Gaon, Amausi Road,
Lucknow. He further submits that being the
proprietor of the aforesaid proprietorship,
the applicant had no direct role to play in the
appointment/
selection
of
the
nonmanagerial staff.

4. Learned Counsel for the applicant
further submits that the officials of the
factory in order to engage the workers
contacted one Yashpal Singh alias Papu, the
said Yashpal Singh who happens to be a
labour thekedar thereafter sent some 10-15
boys in the factory of the applicant.

5. Learned Counsel for the applicant
further submits that when the officials of
the factory asked about the particulars &
the ids of the labours in order to ascertain
the whereabouts of the labours & also
about their age, the said Yashpal Singh
informed that he is having the ids of the
labours & gave an affidavit to the effect
that he shall provide the same whenever it
is needed. Meanwhile on 04.8.2017 an
inspection was carried out & it was alleged
that 16 boys were found in the aforesaid
factory that were employed as labour &
were not adults.

6. Learned Counsel for the applicant
further submits that an FIR was also
lodged at Police Station Sarojini Nagar
District Lucknow under Section 370(5)
IPC & Section & under Section 79 of the
Juvenile Justice Care and Protection of
Children Act, 2015. He further submits
that subsequently an investigation was
conducted however without there being
any independent or cogent evidence the
investigation agency submitted the Charge
Sheet dated 05.8.2017 in Case Crime No.
487/2017 before the Court of Chief
Judicial
Magistrate
Lucknow
under
Section 79 of the Juvenile Justice Care and
Protection of Children Act, 2015.

7. Learned Counsel for the applicant
further submits that there is absolutely no
evidence against the applicant so as to say
that he has committed any offence under
Section 79 of the Juvenile Justice Care and
Protection of Children Act, 2015. Section
79 of the Juvenile Justice Care and
Protection of Children Act, 2015 is
reproduced hereinunder:

"S.79 Exploitation of a child
employee.

Notwithstanding
anything
contained

in any law for the time being in
force, whoever ostensibly engages a child
and keeps him in bondage for the purpose of
employment or withholds his earnings or
uses such earning for his own purposes shall
be punishable with rigorous imprisonment
for a term which may extend to five years
and shall also be liable to fine of one lakh
rupees.

Explanation.-For the purposes of
this section, the term "employment" shall
658 INDIAN LAW REPORTS ALLAHABAD SERIES
also include selling goods and services, and
entertainment in public places for economic
gain."

8. Learned Counsel for the applicant
further submits that there is no evidence so
as to say that the applicant has engaged a
child and kept him in bondage for the
purpose of employment or has withheld his
earnings or used such earning for his own
purposes. However learned Trail Court
without appreciating the material evidences
on record & without appreciating the scope
of Section 79 of the Juvenile Justice Care
and Protection of Children Act, 2015 took
cognizance of the offences under Section
370(5) IPC & under Section 79 of the
Juvenile Justice Care and Protection of
Children Act, 2015 and summoned the
applicant vide order dated 13.8.2019.

9. Learned Counsel for the applicant
further submits that the learned trial court
has summoned the applicant under Section
370(5) IPC & under Section 79 of the
Juvenile Justice Care and Protection of
Children Act, 2015 whereas the charge sheet
was submitted only under Section 79 of the
Juvenile Justice Care And Protection Of
Children Act, 2015 but while passing the
order dated 13.9.2018 no reason has been
recorded by the learned Court of Chief
Judicial Magistrate Lucknow.

10. Learned Counsel for the applicant
further submits that moreover the aforesaid
impugned order dated 13.09.2018 is neither
speaking one nor has any reason been
assigned by the learned trial court.
Admittedly it is a fairly settled principle of
law that the reason is the life of law. It is that
filament that injects soul to the order,
absence of analysis not only evinces non
application of mind but mummifies the core
spirit of the order. However the perusal of
the aforesaid order would reveal to the
Hon'ble Court that the impugned order is a
non speaking one and is also un-reasoned
one.

11. Per contra, learned A.G.A. for the
State-opposite
party
has
vehemently
opposed the contentions made by learned
Counsel for the applicant and submits that
there was ample evidence against the
applicant, who was present at the railway
crossing at the time of incident and the
police party in a very cautious manner
nabbed him red handed, while he was
creating nuisance in a public place and was
passing obscene comments on the girls and
ladies. Thereafter, the police has thoroughly
conducted the inquiry against the applicant
and has filed a charge sheet against him
considering the material on record, thus, he
submits that the trial court has correctly took
the cognizance of the charge sheet and has
rightly summoned the applicant to face trial
in the aforesaid case. He further submits that
no interference by this Court is required in
the matter and the present application being
devoid of merit and substance is liable to
rejected.

12. I have heard learned Counsel for
the parties.

13. On careful perusal of averments
made in this application under Section 482
Cr.P.C. as well as after hearing the learned
Counsel for the parties, the factual matrix
discloses that the opposite party No.2
alongwith his other associates lodged an
F.I.R. against the applicant alleging therein
that the applicant was running a factory in
which sixteen minor boys were working as
laborers but it has been alleged by learned
Counsel for the applicant that the applicant
has nothing to do with the employment of
non managerial staff, thus, he has no
5 All. Sagar Jotwani Vs. State of U.P. & Anr.
659
concern with the minor boys who were
allegedly deployed in his factory. Further,
there also appears force in the argument of
learned Counsel for the applicant that the
officials of the factory in order to engage the
workers contacted one Yashpal Singh alias
Papu, the said Yashpal Singh who happens
to be a labour thekedar sent 10-15 boys in
the factory of the applicant and when the
officials of the factory asked about the
particulars & the ids of the labours in order
to ascertain the whereabouts of the labours
& also about their age, the said Yashpal
Singh informed that he is having the ids of
the labours & gave an affidavit to the effect
that he shall provide the same whenever it is
needed. Meanwhile on 04.8.2017 an
inspection was carried out & it was alleged
that 16 boys were found in the aforesaid
factory that were employed as labour &
were not adults, there also appears force in
the argument of learned Counsel for the
applicant that there is absolutely no
evidence against the applicant so as to say
that he has committed any offence under
Section 79 of the Juvenile Justice Care and
Protection of Children Act, 2015. Further,
the trial court has failed to appreciate the
fact that while filing the charge sheet, the
Investigating officer has failed to comply
with the mandatory provisions of criminal
law
and
has
passed
the
impugned
summoning order 13.09.2018, which is
nothing but an abuse of process of law.

14. Further the Hon'ble Supreme Court
of India in the case Inder Mohan Goswami
v. State of Uttaranchal (2007)12 SCC 1 has
held that it would be relevant to keep into
mind the scope and ambit of section 482
Cr.PC and circumstances under which the
extra ordinary power of the court inherent
therein as provisioned in the said section of
the Cr.P.C. can be exercised, para 23 is
being quoted here under:-

"23. This court in a number of
cases has laid down the scope and ambit of
courts powers under section 482 Cr.P.C.
Every High Court has inherent power to act
ex debito justitiae to do real and substantial
justice, for the administration of which
alone it exists, or to prevent abuse of the
process of the court. Inherent power under
section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under
the Code;

(ii) to prevent abuse of the process
of court, and

(iii) to otherwise secure the ends
of justice."

15. Further Hon'ble the Supreme Court
of India in the case of Lalankumar Singh
and Others vs. State of Maharashtra
reported in 2022 SCC Online SC 1383 has
specifically held in paragraph No.38 that the
order of issuance of process is not an empty
formality. The Magistrate is required to
apply his mind as to whether sufficient
ground for proceeding exists in the case or
not. Paragraph No.38 of Lalankumar Singh
and Others (supra) is being quoted
hereunder:-

"38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind
as to whether sufficient ground for
proceeding exists in the case or not. The
formation of such an opinion is required
to be stated in the order itself. The order
is liable to be set aside if no reasons are
given therein while coming to the
conclusion that there is a prima facie case
against the accused. No doubt, that the
order need not contain detailed reasons. A
reference in this respect could be made to
the judgment of this Court in the case of
Sunil Bharti Mittal v. Central Bureau of
Investigation, which reads thus:
660 INDIAN LAW REPORTS ALLAHABAD SERIES

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he shall
issue process against the accused.

52. A wide discretion has been
given as to grant or refusal of process and it
must be judicially exercised. A person ought
not to be dragged into court merely because
a complaint has been filed. If a prima facie
case has been made out, the Magistrate
ought to issue process and it cannot be
refused merely because he thinks that it is
unlikely to result in a conviction.

53. However, the words "sufficient
ground for proceeding" appearing in
Section 204 are of immense importance. It is
these words which amply suggest that an
opinion is to be formed only after due
application of mind that there is sufficient
basis for proceeding against the said
accused and formation of such an opinion is
to be stated in the order itself. The order is
liable to be set aside if no reason is given
therein while coming to the conclusion that
there is prima facie case against the
accused, though the order need not contain
detailed reasons. A fortiori, the order would
be bad in law if the reason given turns out to
be ex facie incorrect.""

16. Further, the Hon'ble Supreme
Court of India in the case of Pepsi Foods
Ltd. v. Judicial Magistrate reported in
(1998) 5 SCC 749 has been pleased to
observe
paragraph
No.28,
which
is
reproduced hereinunder:-

"28. Summoning of an accused in
a criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused must
reflect that he has applied his mind to the
facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that the
Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The Magistrate
has to carefully scrutinise the evidence
brought on record and may even himself put
questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused."

17. Further, the Hon'ble Supreme
Court of India in the case of Mehmood UL
Rehman v. Khazir Mohammad Tunda and
Others reported in (2015) 12 SCC 420 has
been pleased to observe paragraph No.20,
which is reproduced hereinunder:-

"20. The extensive reference to the
case
law
would
clearly
show
that
cognizance of an offence on complaint is
taken for the purpose of issuing process to
the accused. Since it is a process of taking
5 All. Sagar Jotwani Vs. State of U.P. & Anr.
661
judicial notice of certain facts which
constitute an offence, there has to be
application of mind as to whether the
allegations
in
the
complaint,
when
considered along with the statements
recorded or the inquiry conducted thereon,
would constitute violation of law so as to
call a person to appear before the criminal
court. It is not a mechanical process or
matter of course. As held by this Court in
Pepsi Foods Ltd. [Pepsi Foods Ltd. v.
Judicial Magistrate, (1998) 5 SCC 749 :
1998 SCC (Cri) 1400] to set in motion the
process of criminal law against a person is
a serious matter."

18. Further, Hon'ble the Supreme
Court of India has provided guidelines in
case of State of Haryana Vs. Bhajan Lal
reported in 1992 Supp (1) SCC 335 for the
exercise of power under Section 482 Cr.P.C.
which is extraordinary power and used
separately in following conditions:-

"102.(1) Where the allegations
made in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused."

(2) where the allegations in the
First
Information
Report
and
other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except
under an order of a Magistrate within the
purview of Section 155(2) of the Code;

(3) where the uncontroverted
allegations made in the FIR or 'complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused;

(4) where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code;

(5) where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused;

(6) where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party;

(7) where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

19. Further 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 Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192, (iii) Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and
another, (Para-10) 2005 SCC (Cri.) 283
and (iv) Neeharika Infrastructure Pvt. Ltd.
Vs. State of Maharashtra, AIR 2021 SC
1918.
662 INDIAN LAW REPORTS ALLAHABAD SERIES

20. 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 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.

21. Thus, in view of the law laid down
by the Hon'ble Apex Court and in light of
the observations and discussions made
above and keeping view the facts and
circumstances of the case, and from the
perusal of the record, the impugned charge
sheet dated 24.12.2017 submitted in Case
Crime No.487/2017 before the Court of
Chief Judicial Magistrate, Lucknow under
Section 79 of the Juvenile Justice Care and
Protection of Children Act, 2015 and
summoning order dated 13.09.2018 passed
by Court of Chief Judicial Magistrate,
Lucknow in Criminal Case No.54326/2018
whereby cognizance has been taken and the
applicant has been summoned under Section
370(5) I.P.C. and Section 79 of Juvenile
Justice Care and Protection of Children Act,
2015 and bailable warrant dated 15.03.2019
passed in the aforesaid case against the
applicant.

22. Accordingly, the impugned charge
sheet dated 24.12.2017 submitted in Case
Crime No.487/2017 before the Court of
Chief Judicial Magistrate, Lucknow under
Section 79 of the Juvenile Justice Care and
Protection of Children Act, 2015 and
summoning order dated 13.09.2018 passed
by Court of Chief Judicial Magistrate,
Lucknow in Criminal Case No.54326/2018
whereby cognizance has been taken and the
applicant has been summoned under Section
370(5) I.P.C. and Section 79 of Juvenile
Justice Care and Protection of Children Act,
2015 and bailable warrant dated 15.03.2019
passed in the aforesaid case against the
applicant are hereby set aside and reversed.

23. For the reasons discussed above,
the instant application under Section 482
Cr.P.C. is allowed in respect of the instant
applicant, namely-Sagar Jotwani.
----------
(2024) 5 ILRA 662
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482. No. 7411 of 2018

Pintu Singh @ Rana Pratap Singh & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Manoj Kumar Singh, Sri Virendra Pratap
Pal

Counsel for the Opposite Parties:
G.A., Sri Nanhe Lal Tripathi, Sri Rakesh
Singh Yadava

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 482-Indian Penal Code,
1860-Sections 147, 452, 323, 504, 506 &
3(1)(r) - SC/ST Act,. 1989-challenge tochargsheet-accused person entered into
the house of informant and made caste
based remark and assaulted-in the present
case the offence is not committed in public
view nor the offence has been committed
at public place-the statement of the