# Sandeep Miglani v. U.O.I. & Anr

- **Citation:** (2024) 6 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-04
- **Case number:** Application U/S 482 No. 5145 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-miglani-v-u-o-i-anr-52155
- **Pages:** 8

## Headnote

Criminal Procedure Code,1973 - Section
202 Cr.P.C - Prohibition of Benami
Property
Transaction
Act,
1988
-.--
Summoning order impugned- complaint u/s 53
of the Act filed stating that search & seizure u/s
132 of Income Tax Act, 1961 was conductedDuring inquiry Applicant admitted on oath that
amount was a benami transaction--inquiry
under statutory provision of sec.202 Cr.P.C. is
mandatory-complaint
filed
after
obtaining
sanction-before
Special
Court
having
jurisdiction-limited enquiry by Magistrate to
ascertain whether any case for summoning is
made out-contention of complaint was sufficient
for holding an enquiry u/s 202 Cr.P.C. -no
illegality in the impugned order.

Application dismissed. (E-9)

List of Cases cited:

1.Vishwakalyan Multistate Credit Coop. Society
Ltd. Vs Oneup Entertainment (P) Ltd., 2023 SCC
OnLine SC 1749

## Text

60 INDIAN LAW REPORTS ALLAHABAD SERIES

4. In view of the order proposed to be
passed in this writ petition, issuance of notice
to the opposite party no. 4 is dispensed with.

5. Learned Additional Government
Advocate
looking
to
the
gravity
of
punishment being less than seven years has
stated that the provisions of Section 41-A
Cr.P.C. shall be strictly followed in terms of
judgment rendered by Hon'ble Supreme
Court of India in a case reported in (2014) 8
SCC 273: Arnesh Kumar vs. State of Bihar
and another.

6. The present petition deserves to be
disposed of in terms of the statement made by
learned A.G.A.

7. Accordingly, this petition is disposed
of in view of the provisions of Section 41-A
Cr.P.C. and the law as laid down by Apex
Court in the case of Arnesh Kumar (supra).
----------
(2024) 6 ILRA 60
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.06.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 5145 of 2024

Sandeep Miglani ...Applicant
Versus
U.O.I. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rama
Soni,
Rohit
Kumar
Tripathi,
Shubhanjali Shukla

Counsel for the Opposite Parties:
Kushagra Dikshit

Criminal Procedure Code,1973 - Section
202 Cr.P.C - Prohibition of Benami
Property
Transaction
Act,
1988
-.--
Summoning order impugned- complaint u/s 53
of the Act filed stating that search & seizure u/s
132 of Income Tax Act, 1961 was conductedDuring inquiry Applicant admitted on oath that
amount was a benami transaction--inquiry
under statutory provision of sec.202 Cr.P.C. is
mandatory-complaint
filed
after
obtaining
sanction-before
Special
Court
having
jurisdiction-limited enquiry by Magistrate to
ascertain whether any case for summoning is
made out-contention of complaint was sufficient
for holding an enquiry u/s 202 Cr.P.C. -no
illegality in the impugned order.

Application dismissed. (E-9)

List of Cases cited:

1.Vishwakalyan Multistate Credit Coop. Society
Ltd. Vs Oneup Entertainment (P) Ltd., 2023 SCC
OnLine SC 1749

2. Azim Premji Vs St. of U.P., 2024 SCC OnLine
All 1956

3. Divyajot Singh Jendu Vs Manikaran Analytics
Ltd.: 2022 SCC OnLine Cal 200

4. Cheminova India Ltd. Vs St. of Pun.: 2021
SCC OnLine SC 573

5. "In Re : Expeditious Trial of Cases Under
Section 138 of N.I. Act, 1881": 2021 SCC OnLine
SC 325

6. Rosy Vs St. of Kerala: (2000) 2 SCC 230

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rohit Kumar Tripathi,
the learned counsel for the petitioner, Sri
Neerav Chitravanshi and Sri Kushagra
Dixit, the learned counsel for the opposite
parties.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
petitioner has challenged validity of an
order dated 27.02.2024 passed by the IX
6 All. Sandeep Miglani Vs. U.O.I. & Anr.
61
Additional Sessions Judge, Lucknow in
Complaint Case No. 277 of 2024
whereby the trial court has taken
cognizance of offence under Section 53
read with Section 3 of the Prohibition
of Benami Property Transaction Act,
1988 (hereinafter referred to as 'Benami
Act') and he has been summoned to
face trial.

3. The opposite party no. 1-Union
of India has filed a complaint under
Section 53 of Benami Act through a
Deputy
Commissioner
of
Income
Tax/Initiating
Officer,
Benami
Prohibition, Benami Unit, Kanpur, after
obtaining sanction for prosecution from
the Principal Director of Income Tax
(Investigation) Kanpur under Section 55
of the Benami Act on 29.01.2024.

4. The complaint states that a
search and seizure under Section 132 of
the
Income
Tax
Act,
1961
was
conducted
on
18.01.2017,
which
revealed
that
M/s
Shyam
Trading
Company (a proprietorship concern of
Ghanshyam Patel) had used its bank
account maintained with J & K Bank,
Ghaziabad to deposit a cash amount of
Rs.30,00,000/- on 12.11.2016. Out of
the aforesaid amount, Rs.7,50,000/-
were transferred to the bank account of
the applicant being maintained with
Axis Bank, Delhi through NEFT on
12.11.2016. Ghanshyam Patel denied
ownership of the amount deposited in
his bank account. After inquiry, the
matter was transferred to the Banami
Prohibition Unit, Kanpur for initiating
proceedings under Benami Act. During
further inquiry held by the Benami
Prohibition Unit, Kanpur, the applicant
admitted on oath that the aforesaid sum
of Rs. 7,50,000/- deposited into the
bank account of M/s Shyam Trading
Company
was
the
applicant's
unaccounted cash, which was deposited
during demonetization period and had
been transferred to his bank account.
Ghanshyam Patel, proprietor of M/s
Ghanshyam Trading Company, also
admitted in his statement that the
amount of Rs. 7,50,000/- deposited in
his bank account in cash was a benami
transaction.

5. The Deputy Commissioner of
Income Tax/ Initiating Officer, Benami
Prohibition Benami Unit, Kanpur filed a
complaint dated 25.02.2024 on the basis
of the aforesaid facts. The learned IX
Additional Session Judge, Lucknow
took cognizance of the alleged offence
on the same date i.e. 27.02.2024 and
summoned the applicant to face the
trial.

6. The learned counsel for the
applicant has assailed the validity of the
summoning order dated 27.02.2024 on
the sole ground that the applicant
resides at New Delhi, i.e. beyond the
territorial jurisdiction of the Court
which has passed the summoning order
and, therefore, as per the statutory
provision contained in Section 202
Cr.P.C., it was mandatory for the Court
to have conducted an inquiry before
taking cognizance of the offence and
summoning the applicant.

7. In support of his contention, the
learned counsel for the applicant has
relied
upon
a
decisions
in
Vishwakalyan
Multistate
Credit
Coop.
Society
Ltd.
v.
Oneup
Entertainment (P) Ltd., 2023 SCC
OnLine SC 1749, a decision rendered
by a coordinate Bench of this Court in
62 INDIAN LAW REPORTS ALLAHABAD SERIES
Azim Premji v. State of U.P., 2024
SCC OnLine All 1956 and a decision
rendered by an Hon'ble Single Judge of
Calcutta High Court in Divyajot Singh
Jendu v. Manikaran Analytics Ltd.:
2022 SCC OnLine Cal 200.

8.

Per
contra,
Sri
Neerav
Chitravanshi, the learned counsel for
the opposite parties has submitted that
the Proviso (a) appended to Section 200
Cr.P.C. provides that the Magistrate
need not examine the complaint and the
witnesses, if a complaint has been made
by a public servant. He has relied upon
a decision of the Hon'ble Supreme
Court in the case of Cheminova India
Limited v. State of Punjab: 2021 SCC
OnLine SC 573.

9. Before proceeding with the
matter, it would be appropriate to have
a
look
to
the
relevant
statutory
provisions. Section 50 of the Benami
Act reads as under:-

50. Special Courts.-(1) The
Central Government, in consultation
with the Chief Justice of the High
Court, shall, for trial of an offence
punishable
under
this
Act,
by
notification, designate one or more
Courts of Session as Special Court or
Special Courts for such area or areas
or for such case or class or group of
cases as may be specified in the
notification.

(2) While trying an offence
under this Act, a Special Court shall
also try an offence other than an
offence referred to in sub-section (1),
with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial.

(3) The Special Court shall not
take
cognizance
of
any
offence
punishable under this Act except upon a
complaint in writing made by-

(i) the authority; or

(ii) any officer of the Central
Government
or
State
Government
authorised
in
writing
by
that
Government by a general or special
order made in this behalf.

(4) Every trial under this
section
shall
be
conducted
as
expeditiously as possible and every
endeavour shall be made by the Special
Court to conclude the trial within six
months from the date of filing of the
complaint.

10.

In
exercise
of
powers
conferred by Section 50 of the Benami
Act,
the
Ministry
of
Finance,
Government Of India has issued a
Notification dated 16.10.2018 whereby
IX Additional District & Sessions
Judge, Lucknow has been designated as
the Special Court for the purpose of
trial of offences punishable under the
Benami
Act
for
certain
Districts,
including Ghaziabad District, where the
cash amount of Rs.30,00,000/- was
deposited in the Bank account of M/s
Shyam Trading Company and from
where an amount of Rs.7,50,000/- was
transferred to the Bank account of the
applicant. Therefore, the Complaint has
rightly been filed before the Special
Court constituted under Section 50 of
the Benami Act.

11. Sections 200 & 202 of
Criminal Procedure Code, 1973 read as
under:-
6 All. Sandeep Miglani Vs. U.O.I. & Anr.
63

"200.
Examination
of
complainant.-A
Magistrate
taking
cognizance of an offence on complaint
shall
examine
upon
oath
the
complainant and the witnesses present,
if any, and the substance of such
examination shall be reduced to writing
and shall be signed by the complainant
and the witnesses, and also by the
Magistrate:

Provided
that,
when
the
complaint is made in writing, the
Magistrate need not examine the
complainant and the witnesses-

(a) if a public servant acting
or purporting to act in the discharge of
his official duties or a court has made
the complaint; or

(b) if the Magistrate makes
over the case for inquiry or trial to
another Magistrate under Section 192:

Provided further that if the
Magistrate makes over the case to
another Magistrate under Section 192
after examining the complainant and
the witnesses, the latter Magistrate
need not re-examine them.

* * *

202. Postponement of issue of
process.-(1)
Any
Magistrate,
on
receipt of a complaint of an offence of
which
he
is
authorised
to
take
cognizance or which has been made
over to him under Section 192, may, if
he thinks fit, and shall, in a case where
the accused is residing at a place
beyond the area in which he exercises
his jurisdication, postpone the issue of
process against the accused, and either
inquire into the case himself or direct
an investigation to be made by a police
officer or by such other person as he
thinks fit, for the purpose of deciding
whether or not there is sufficient
ground for proceeding:

Provided
that
no
such
direction for investigation shall be
made,-

(a) where it appears to the
Magistrate that the offence complained
of is triable exclusively by the Court of
Session; or

(b) where the complaint has
not been made by a Court, unless the
complainant and the witnesses present
(if any) have been examined on oath
under Section 200.

(2) In an inquiry under subsection (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on
oath:

Provided that if it appears to
the
Magistrate
that
the
offence
complained of is triable exclusively by
the Court of Session, he shall call
upon the complainant to produce all
his witnesses and examine them on
oath.

(3) If an investigation under
sub-section (1) is made by a person not
being a police officer, he shall have for
that
investigation
all
the
powers
conferred by this Code on an officer in
charge of a police station except the
power to arrest without warrant."

12. In Cheminova India Limited
v. State of Punjab: 2021 SCC OnLine
64 INDIAN LAW REPORTS ALLAHABAD SERIES
SC 573, the Hon'ble Supreme Court
held that: -

"18. The
legislature
in
its
wisdom has itself placed the public
servant on a different pedestal, as
would be evident from a perusal of
proviso to Section 200 of the Code of
Criminal Procedure. Object of holding
an inquiry/investigation before taking
cognizance, in cases where the accused
resides
outside
the
territorial
jurisdiction of such Magistrate, is to
ensure that innocents are not harassed
unnecessarily. By virtue of proviso to
Section 200 of the Code of Criminal
Procedure, the Magistrate, while taking
cognizance, need not record statement
of such public servant, who has filed the
complaint in discharge of his official
duty. Further, by virtue of Section 293
of Code of Criminal Procedure, report
of the Government Scientific Expert
is, per se, admissible in evidence. The
Code of Criminal Procedure itself
provides
for
exemption
from
examination of such witnesses, when the
complaint is filed by a public servant."

13. In Vishwakalyan Multistate
Credit Coop. Society Ltd. v. Oneup
Entertainment (P) Ltd., 2023 SCC
OnLine SC 1749, the appellant had
filed a complaint under Section 138 of
the Negotiable Instruments Act, 1881 .
On 26.06.2021, the Judicial Magistrate
issued process on the complaint. The
High Court held that as the respondent
was having its office outside the
jurisdiction of the Magistrate, it was
necessary for the Magistrate to hold an
inquiry under Section 202 Cr.P.C. and
non-compliance with the mandate of
Section 202 Cr.P.C. vitiates the order
issuing process. Therefore, the High
Court set aside the order issuing
process, without issuing any further
direction to the Magistrate to hold an
inquiry under Section 202 Cr.P.C. The
Hon'ble Supreme Court referred to its
Constitution Bench decision in the case
of "In Re : Expeditious Trial of Cases
Under Section 138 of N.I. Act, 1881":
2021 SCC OnLine SC 325, in which the
Constitution Bench has directed as
under: -

"3) For the conduct of inquiry
under Section 202 of the Code, evidence
of
witnesses
on
behalf
of
the
complainant shall be permitted to be
taken on affidavit. In suitable cases, the
Magistrate can restrict the inquiry to
examination
of
documents
without
insisting for examination of witnesses."

The aforesaid decision given
in
the
background
of
a
private
complaint filed under Section 138 of
the Negotiable Instruments Act cannot
apply to the facts of the present case,
where the complaint has been filed by a
public servant under the Benami Act.

14. In Azim Premji v. State of
U.P., 2024 SCC OnLine All 1956, a
coordinate Bench of this Court held that
where the Magistrate, failed to ensure
the compliance of Section 202 Cr.P.C.,
although the accused resides outside the
jurisdiction of the court concerned, an
enquiry on fact is mandatory before
issuing a summoning order. However,
this judgment does not take into
consideration the provision contained
in
Section
200
Cr.P.C.
granting
exemption to public servants or the
judgment of the Hon'ble Supreme
Court in the case of Cheminova India
Limited (Supra).
6 All. Sandeep Miglani Vs. U.O.I. & Anr.
65

15. In Divyajot Singh Jendu v.
Manikaran
Analytics
Ltd.,
2022
SCC OnLine Cal 200, while dealing
with a complaint filed by a person
other than a public servant, the
Calcutta High Court held that as the
learned Magistrate did not hold any
inquiry under Section 202 of Cr.P.C
though the accused resided outside the
jurisdiction of the court where the
complaint has been lodged and the
Magistrate merely held an inquiry
under
section
200
of
Cr.
P.C
simpliciter and only examined the
complainant and no other witness or
document, the summoning order was
vitiated. This judgment also does not
take into consideration the provision
contained in Section 200 Cr.P.C.
granting exemption to public servants
or the judgment of the Hon'ble
Supreme
Court
in
the
case
of
Cheminova India Limited (Supra).

In Rosy v. State of Kerala:
(2000) 2 SCC 230, the Hon'ble
Supreme Court explained the nature
and purpose of the enquiry under
Section 202 Cr.P.C. in the following
words: -

"11...it is settled law that the
inquiry under Section 202 is of a
limited nature. Firstly, to find out
whether there is a prima facie case in
issuing process against the person
accused
of
the
offence
in
the
complaint and secondly, to prevent the
issue of process in the complaint
which is either false or vexatious or
intended only to harass such a person.
At that stage, the evidence is not to be
meticulously
appreciated,
as
the
limited purpose being of finding out
"whether or not there is sufficient
ground for proceeding against the
accused". The standard to be adopted
by the Magistrate in scrutinising the
evidence is also not the same as the
one which is to be kept in view at the
stage of framing charges. At the stage
of inquiry under Section 202 CrPC the
accused has no right to intervene and
that it is the duty of the Magistrate
while making an inquiry to elicit all
facts not merely with a view to protect
the interests of an absent accused
person, but also with a view to bring
to book a person or persons against
whom grave allegations are made."

16.

When
we
examine
the
impugned cognizance and summoning
order dated 27.02.2024 in light of the
law laid down in the above referred
cases, it appears that the complaint
has been filed by the Union of India
through
Deputy
Commissioner
of
Income
Tax
/
Initiating
Officer,
Benami
Prohibition,
Benami
Prohibition Unit, Kanpur. The Special
Court has referred to the contents of
the complaint that during a search and
seizure operation conducted under
Section 132 of the Income tax Act,
1961, it transpired that a cash amount
of Rs.30,00,000/- had been deposited
in the account of M/s Shyam Trading
Company maintained with J & K
Bank, Ghaziabad on 12.11.2016 and
on the same date, an amount of
Rs.7,50,000/- was transferred from
that account through NEFT to the
bank
account
of
the
applicant.
Ghanshyam Patel, Proprietor of M/s
Shyam Trading Company, has denied
ownership of the amount and he stated
that his account was misused by Rahul
Chaudhary. The Initiating Officer,
Benami Prohibition Unit conducted an
66 INDIAN LAW REPORTS ALLAHABAD SERIES
enquiry, during which the applicant
admitted that the amount deposited in
the bank account of M/s Shyam
Trading Company was unaccounted
cash, which was deposited during
demonetization. After enquiry, the
Initiating Officer found that the
aforesaid
property
was
Benami
property
and
he
passed
an
attachment order under Section 24(4)
of the Benami Act. The adjudicating
Authority gave an opportunity of
hearing to the applicant, during
which the applicant admitted on oath
that
the
aforesaid
sum
of
Rs.
7,50,000/- deposited into the bank
account
of
M/s
Shyam
Trading
Company
was
the
applicant's
unaccounted
cash,
which
was
deposited
during
demonetization
period and had been transferred to
his bank account. Thereafter the
complaint was filed after obtaining
sanction from Principal Director,
Income Tax (Investigation) before
the Special Court having jurisdiction
under the Act.

17. Section 202 Cr.P.C. merely
directs that the Magistrate shall hold
an enquiry inquire into the case
himself or direct an investigation to
be made by a police officer or by
such other person as he thinks fit,
for the purpose of deciding whether
or not there is sufficient ground for
proceeding.
Section
202
Cr.P.C.
does not prescribe the manner of
holding
an
enquiry
under
this
provision. The Special Court has
passed the impugned order dated
27.02.2024 taking cognizance of the
offence and summoning the applicant
after taking into consideration the
aforesaid facts and after recording a
satisfaction that from the averments
made in the complaint and the
documents filed with the complaint,
there
is
sufficient
ground
for
proceeding against the applicant.

18. The limited enquiry which
the Magistrate can hold at this stage
is meant to ascertain whether any
case for summoning the accused
person is made out. The perusal of
the averments made in the complaint
made by the Union of India through
a Public Servant and examination of
the documents accompanying the
complaint was sufficient for holding
an
enquiry
under
Section
202
Cr.P.C. for recording a satisfaction
that there is sufficient ground for
proceeding against the applicant.
The summoning order passed after
taking
into
consideration
the
averments made in a complainant
filed by the Union of India through a
public servant, after perusing the
documents filed with the complaint
and after recording a satisfaction
that there is sufficient ground for
proceeding against the applicant,
fulfills the requirement of holding an
enquiry under Section 202 Cr.P.C.

19. In view of the aforesaid
discussion, there appears to be no
illegality in the impugned order
dated 27.02.2024 taking cognizance
of the offence and summoning the
applicant to face the trial and in any
case, it does not cause a failure of
justice to the applicant.

20.

The
application
under
Section 482 Cr.P.C. filed by the
applicant lacks merit and the same is
hereby dismissed.
6 All. Yogendra Pratap Singh @ Annu Vs. State of U.P. & Ors.
67
---------
(2024) 6 ILRA 67
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.06.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Misc. Writ Petition No. 4468 of 2024

Yogendra Pratap Singh @ Annu
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Pratap Singh Rathore, Manoj Kumar
Yadav

Counsel for the Respondents:
G.A.

(A)
Criminal
Law
-
The
Code
of
Criminal Procedure, 1973 - Section 41
-A - Notice of appearance before
police officer - Indian Penal Code,
1860 - Sections 323, 354, 504 & 506 -
Punishment
for
the
offences
mentioned in the F.I.R. - less than
seven years - Held - Provisions of
section 41-A CrPC must be strictly
followed for punishments less than
seven years.

Petition disposed of. (E-7)

List of Cases cited:

Arnesh Kumar Vs St. of Bihar & anr., (2014) 8
SCC 273

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

1. Heard learned counsel for the
petitioner
and
learned
Additional
Government Advocate for the State.

2. This petition seeks issuance of
a direction in the nature of certiorari
for quashing the impugned F.I.R.
registered as Case Crime/F.I.R. No.
196 of 2024 under Sections 323, 354,
504, 506 I.P.C., Police Station Vibhuti
Khand, district Lucknow.

3. The punishment for the
offences mentioned in the impugned
F.I.R. is less than seven years.

4. In view of the order proposed
to be passed in this writ petition,
issuance of notice to the opposite
party no. 4 is dispensed with.

5.

Learned
Additional
Government Advocate looking to the
gravity of punishment being less than
seven
years
has
stated
that
the
provisions of Section 41-A Cr.P.C.
shall be strictly followed in terms of
judgment
rendered
by
Hon'ble
Supreme Court of India in a case
reported in (2014) 8 SCC 273: Arnesh
Kumar
vs.
State
of
Bihar
and
another.

6. The present petition deserves
to be disposed of in terms of the
statement made by learned A.G.A.

7. Accordingly, this petition is
disposed of in view of the provisions
of Section 41-A Cr.P.C. and the law as
laid down by Apex Court in the case
of Arnesh Kumar (supra).
----------