# Sharda Devi v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1597
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Application U/S 482 No. 45657 of 2019
- **Bench:** Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharda-devi-v-state-of-u-p-anr-45202
- **Pages:** 3

## Headnote

A. Criminal law - Code of Criminal
Procedure, 1973- Section 482- Scope -
Disputed
question
of
facts
cannot
be
adjudicated upon by this Court under Section
482 Cr.P.C. At this stage only prima facie case
is to be seen as held by the Hon'ble Supreme
Court. ( Para 8)

Criminal Application rejected.

Case Law discussed:-

## Text

2 All. Sharda Devi Vs. State of U.P. & Anr.
1597
along with Protest Petition, proceeded to
issue notice. The affidavits would not
amount to a statement recorded by
Magistrate under Section 200 and 202
Cr.P.C. Magistrate has not given any
reason for rejecting Police report and
nothing has been said in this regard except
that in the light of affidavits placed before
him along with Protest Petition, he finds
that final report is liable to be rejected and
accused
would
be
summoned.
This
approach on the part of Magistrate, I find
contrary to what has been laid down in the
above authorities and the same cannot be
sustained."

18. In the light of the judgments of
the Apex Court as well as this Court,
referred to above, it is explicitly clear that
the contention raised on behalf of the
applicant has substance. The impugned
order passed by the concerned Magistrate
is cryptic and does not stand the test laid
down by the Apex Court as well as this
Court. In the present case also, the
concerned Magistrate has not referred to
any material/documents and oral as well as
documentary evidence collected by the
Investigating Officer during the course of
the investigation and the same has been
placed before the concerned Magistrate.
Apart from the above, the concerned
Magistrate has rejected the final report
submitted by the Investigating Officer
only on the basis of facts stated in the
protest petition filed by opposite party
no.2 and considering the facts of the
protest petition and affidavits of the
witnesses produced before him, the
concerned Magistrate has issued notice to
the applicant. Such affidavits would not
amount to a statement recorded by the
Magistrate under Section 200 and 202
Cr.P.C. The concerned Magistrate has not
recorded any reasons while rejecting the
final report and he has also not mentioned
anything in that regard. Only in view of
the affidavits produced before him along
with Protest Petition, the concerned
Magistrate has found that the final report
is liable to be rejected and accusedapplicant would be summoned. The
concerned
Magistrate
has
failed
to
appreciate that neither acceptance nor nonacceptance of the police report can be
termed as an administrative function.
Since it is after application of judicial
mind and examination of the material
submitted along with the report under S.
173 Cr.P.C., the Magistrate makes the
order under Section 190 Cr.P.C. Such
lethargic approach of the concerned
Magistrate, as per my view, is contrary to
what has been laid down in the above
authorities and the same cannot be legally
sustained.

19. In view of the above discussion,
the application u/S 482 Cr.P.C. succeeds
and is allowed. The impugned order dated
18.08.2017 is hereby set aside and the
matter is remanded to the concerned
Magistrate to take decision afresh in
accordance with observations made herein
above.
----------
(2020)02ILR A1597

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.12.2019

BEFORE
THE HON'BLE ANIL KUMAR-IX, J.

Application U/S 482 No. 45657 of 2019

Sharda Devi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
1598 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Praneet Kumar Srivastava, Sri Utkarsh
Singh

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

A. Criminal law - Code of Criminal
Procedure, 1973- Section 482- Scope -
Disputed
question
of
facts
cannot
be
adjudicated upon by this Court under Section
482 Cr.P.C. At this stage only prima facie case
is to be seen as held by the Hon'ble Supreme
Court. ( Para 8)

Criminal Application rejected.

Case Law discussed:-

1. Monica Kumar Vs. St. of U.P (2008) 8 SCC
781

2. St. of Bih. Vs. Murad Ali Khan AIR (1989) SC
1

3. U.O.I Vs. Prakash P. Hinduja & anr., AIR
(2003) SC 2616

4. R.P. Kapur Vs. St. of Punj., A.I.R. (1960)
S.C. 866

5. St. of Har. Vs. Bhajan Lal (1992) SCC (Cr.)
426

(Delivered by Hon'ble Anil Kumar-IX, J.)

1. Heard learned counsel for the
applicant, learned AGA for the State
and perused the record.

2. This application u/s 482 Cr.P.C.
has been filed by the applicant with the
prayer to quash the entire proceeding
of Case No./S.S.T. No.156 of 2019
(State Vs.Aniket Harsh and others),
under Sections 363, 366, 120B, 368,
406 IPC & 17, 18 POCSO Act, Police
Station- Mungra Badshapur, District-
Jaunpur as well as charge sheet dated
16.10.2019.

3. Brief facts, which are requisite to
be
stated
for
adjudication
of
this
application are that an F.I.R. was lodged
by opposite party No.2 against accused
Aniket and his associates on 01.03.2019
alleging therein that they have enticed
away his minor daughter (victim) aged
about 17 years on 25.2.2019. She left the
house with cash and ornaments. After
investigation charge has been filed by the
Investigating Officer against the applicant
and co-accused Aniket and Krishna
Chandra, under Sections 363, 366, 120B,
368, 406 IPC and 17/18 POCSO Act,
Police
Station-
Mungra
Badshapur,
District- Jaunpur.

4. Learned counsel for the applicant
contended that applicant is innocent and
has been falsely implicated in this case. He
further argued that no offence is disclosed
against
the
applicant
and
present
prosecution has been instituted with a mala
fide
intention
for
the
purpose
of
harassment.

5. Learned AGA opposed the prayer
of the applicant and submitted that at this
stage, it cannot be said that the allegations
are false or witnesses have given false
statements. Disputed question of the
defence cannot be considered at this stage.
He further submitted that at this stage, it
cannot be said that no offence is made out
against the applicant.

6. In the case of Monica Kumar Vs.
State of Uttar Pradesh (2008) 8 SCC 781
it was held by the Hon'ble Apex Court that
inherent jurisdiction under Section 482
Cr.P.C. has to be exercised sparingly,
carefully and with caution and only when
such exercise is justified by the tests
specifically laid down in this section. In
the case of State of Bihar Vs. Murad Ali
2 All. Smt. Krishna Shri Gupta Vs. State of U.P. & Ors.
1599
Khan AIR 1989 SC 1 it was held that in
exercising jurisdiction under Section 482
Cr.P.C. High Court would not embark
upon an enquiry whether the allegations in
the complaint are like to be established by
evidence or not.

7. The scope and ambit of power
under Section 482 Cr.P.C. has been
examined by Hon'ble Apex Court in
Union of India Vs. Prakash P. Hinduja
and another, AIR 2003 SC 2616 and
observed as follows:-

"The grounds on which power
under Section 482 Cr.P.C. can be exercised
to
quash
the
criminal
proceedings
basically are (1) where the allegations
made in the FIR or 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
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, (3)
where there is an express legal bar
engrafted in any of the provisions of Code
of Criminal Procedure or the concerned
Act to the institution and continuance of
the proceedings. But this power has to be
exercised in a rare case and with great
circumspection".

8. In case in hand, from the perusal
of the material on record and looking into
the facts of the case, at this stage it cannot
be said that no offence is made out against
the applicant. All the submissions made by
the learned counsel for the applicant
relates to the disputed question of fact
which cannot be adjudicated upon by this
Court under Section 482 Cr.P.C. At this
stage only prima facie case is to be seen in
the light of law laid down in the above
mentioned cases and in the cases of R.P.
Kapur Vs. State of Punjab, A.I.R. 1960
S.C. 866 and State of Haryana Vs.
Bhajan Lal 1992 SCC (Cr.) 426.

9. In view of the above, the prayer
for quashing the entire proceedings and
charge sheet dated 16.10.2019 of the
aforesaid case pending before the court
concerned is refused.

10. Accordingly, this application u/s
482 Cr.P.C. is dismissed.
----------
(2020)02ILR A1599

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE

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

Special Appeal No. 48 of 2020

Smt. Krishna Shri Gupta ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Amit Saxena, Sri Amit Shukla

Counsel for the Respondents:
C.S.C., Sri Ashok Khare, Sri Siddharth
Khare

A. Eligibility/Qualification - Regulation 1
of Chapter II of the Regulation framed
under the Intermediate Education Act,
1921 - prescribes alternative eligibility
criteria for appointment as Principal or
Headmaster of an institution - dismissal
of claim of the appellant for the post of
Principal based on the case of Amal