# Sharda Prasad Tiwari & others v. State of UP

- **Citation:** (2006) 2 ILRA 696
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-24
- **Case number:** Criminal Misc. Application No.2373 of 2006
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharda-prasad-tiwari-others-v-state-of-up-40637
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section 204Summoning
order-contradiction
of
statements of witness-can be seen after
the
trail-even
on
strong
suspicion
against the accused-magistrate has to
issue process-recording those reasonswhile passing summoning order not
necessary.
2 All] Sharda Prasad Tiwari and others V. State of U.P.
697
Held: Para 6 and 7

It has been held by the Supreme Court in
case of State (Delhi Administration)
versus I.K. Nangia, 1980SCC(Cr) 220,
that the magistrate has to issue process
even if, there is strong suspicion against
the accused. I am also fortified in my
view by the judgment the apex court
rendered in AIR 2000 SC 1456 U.P.
Pollution Control Board Vs. M/s Mohan
Meakins Ltd. and others.

Thus the submission of the learned
counsel that detail reasons has to be
recorded while summoning does not
command and against the law laid down
by the Apex Court and hence is rejected.
Case law discussed:
1980 SCC(Crl.) 220
AIR 2000 SC-1456

## Text

696 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
attached to trees, juices dried on trees,
things embedded in the earth like mines
and quarries with their produce locked up
in the land, wild and stray animals
(excluding domestic animals like cows,
buffaloes, goats, sheep etc.) living in the
forest. The Full Bench of the Bombay
High Court has given a wide meaning to
the term ''forest'. It has held that if the
mines and quarries remain beneath the
surface of the earth with minerals, stones
and other products locked up in the land,
these will form part of the forest. While
referring to the dictionary meaning given
in Oxford English Dictionary, Vol. IV at
page 422, the Full Bench has held that
even the dictionary meaning clearly
shows that forest means an extensive tract
of land together with the trees and
undergrowth which covers such tract and
also includes pastures which intermingled
with such tract.

13. This Court in the case of Kumar
Stone Works (supra) has held that the
word ''forest' would include all that goes
with it and even the mines and quarries
which remained beneath the surface of the
earth with minerals, stones and other
products locked up in the land, will form
part of the forest. Such goods are being
brought from the forest as during
transportation they cross the forest, they
would be covered under the definition of
forest produce under sub-clause (iv) of
clause (b) of sub-section (4) of Section 2
of the Act. Thus, the transit fee is payable
on stone ballast, Khanda and boulder if
they cross the forest during transportation.
From the map filed alongwith the
supplementary counter affidavit we find
that there are several forest blocks along
the national highway no.25 and merely
because the petitioners are using the
national highway no.25 for transportation
of their produce to various destination
situated in Jalaun, Etawah, Lucknow,
Kanpur, Unnao etc., it cannot be said that
the goods are not brought from the forest.
They do pass through the forest and,
therefore, the levy and demand of transit
fee is perfectly within the four corners of
the Transit Rules.

14. So far as the question of creating
the check posts by the Forest Department
under the order dated 25.11.2005 is
concerned, the learned counsel has not
raised any grievance while making his
submissions.

In view of the foregoing discussions,
we do not find any merit in this petition. It
is dismissed. Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No.2373 of 2006

Sharda Prasad Tiwari & others ...Applicants
Versus
State of UP

...Opposite Party

Counsel for the Applicants:
Sri Jagdish Singh Sengar
Sri Sudhir Solanki

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

Code of Criminal Procedure-Section 204Summoning
order-contradiction
of
statements of witness-can be seen after
the
trail-even
on
strong
suspicion
against the accused-magistrate has to
issue process-recording those reasonswhile passing summoning order not
necessary.
2 All] Sharda Prasad Tiwari and others V. State of U.P.
697
Held: Para 6 and 7

It has been held by the Supreme Court in
case of State (Delhi Administration)
versus I.K. Nangia, 1980SCC(Cr) 220,
that the magistrate has to issue process
even if, there is strong suspicion against
the accused. I am also fortified in my
view by the judgment the apex court
rendered in AIR 2000 SC 1456 U.P.
Pollution Control Board Vs. M/s Mohan
Meakins Ltd. and others.

Thus the submission of the learned
counsel that detail reasons has to be
recorded while summoning does not
command and against the law laid down
by the Apex Court and hence is rejected.
Case law discussed:
1980 SCC(Crl.) 220
AIR 2000 SC-1456

(Delivered by Hon'ble Vinod Prasad J.)

1. Sharda Prasad Tiwari, Smt Vijai
Lakshami, his wife and Deepak Tiwari,
his son have filed the instant application,
under section 482 Cr.P.C., hereinafter
referred to as the Code, invoking the
power of this court under the said section,
with the prayer to quash the charge sheet
No. 132 of 2005 dated 23.7.2005 relating
to crime no. 480 of 2004 under section
498A/ 304B IPC and 3⁄4 D.P. Act. Police
Station Naini District Allahabad which
has culminated into registration of case
no. 25344 of 2005 State versus Deepak
Tiwari and Others pending in the court of
CJM Allahabad under the aforesaid
sections. They have further prayed that
during the pendency of this application
further proceeding of the said case be
stayed.

2. The facts are that Nand Kishore
Sharma, resident of 123, Chaukhandi,
Kidganj, Allahabad had married his
daughter Gunja (deceased) with Deepak
Tiwari @ Dipu (applicant no.3) son of
Sharda Prasad Tiwari (applicant no.1)
resident of Bakrana Tiwari (Ram Sagar),
Chaka Block, Police Station Naini,
Allahabad on 2.3.2001. He had given
many domestic articles, jewelry and a car
Maruti 800 according to the wishes of the
applicants. On her return from the house
of her-in-laws, Gunja told informant and
other
relatives
her
woes
that
the
applicants demand more dowry of Rs.
three lacs from her and on her refusal bet
and tortured her mentally. The informant
went to the applicants and pleaded his
inability to pay such a huge amount.
Applicant Deepak, on this came to the
house of the informant and took Gunja to
his house. After some time, informant
went to the house of the applicants for
bringing Gunja back for Rakshabandhan,
when he was informed by Gunja that her
woes continues if, the amount is not paid,
then she will be done away with. The
informant again went to the house of the
applicants and requested them to stop the
torture and showed his inability to pay the
said amount. Gunja was again brought
back by her husband Deepak and fatherin- law Sharda Prasad Tiwari to their
house
on
12.9.04.
On
13.10.04
informant's
son
Amit
Sharma
was
informed by an unknown man that his
sister, Gunja, had been badly burnt by gas
leak and she had been carried to Swaroop
Rani
Hospital.
The
informant
immediately rushed to the hospital along
with his other relatives and there he found
his aforesaid daughter unconscious and
badly burnt. That night Gunja breathed
her last. Of being sure that the applicants
have bet and burnt Gunja that the
informant lodged a FIR against the
applicants at police station Naini District
Allahabad under section 498A/ 304 B IPC
and 3⁄4 D.P. Act vide crime number 480 of
698 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
2004 (annexure 1) on 14.10.04 at 1.15
PM. The post mortem of the deceased was
conducted on 14.10.04 which indicated
that the deceased whole body was burnt
and skin had peeled off. The investigation
was conducted by Circle Officers of
Naini,
Sorao
and
Colonelganj.
It
transpires that, at the instance of the
informant
the
investigation
was
transferred to Circle Officer, Colonelganj,
Allahabad, but subsequently, at the
instance of accused the same was
retransferred to Circle Officer Sorao,
Allahabad.
During
the
course
of
investigation all the witnesses, including
the
informant, his sons Amit and
Vivekanand,
his
wife
Smt
Kumud
supported the FIR version. How ever it
seems that the pressure was exerted on the
informant and as a result of which the
Maruti car given in marriage was returned
to the informant and a LIC Policy of Rs. 5
lacs was got done, in favour of Riya,
daughter of deceased with the help of
Kamlesh Tiwari uncle of accused Deepak
Tiwari applicants and brother of Sharda
Parasad
Tiwari
applicants.
It
also
transpires that the informant had moved
applications also against the accused to
Human Rights Commission. How ever
because of pressure exerted on the
informant and other witnesses, the family
members of the deceased, filed affidavits
denying the incident in the court of CJM,
Allahabad. CJM, Allahabad also ordered
for recording their statements under
section 164 Cr.P.C. on 14.2.2004. The
informant in the said statement stated that
he had lodged the FIR and the version
mentioned in it is correct. The
statements of Amit Kumar Sharma and
Vivekanand Sharma filed as annexure
no.20, indicates that the affidavits were
filed because of pressure and also because
of a sought of compromise reached
between the parties. The investigating
officer finding prima facie case against
the applicants submitted charge sheet
against them in court on 23.7.2005, on the
basis of which case number 25344 of
2005 was registered in the court of CJM,
Allahabad on 6.10.2005 against the
applicants. Hence this application for
quashing of the case and the charge sheet.

3. I have heard Sri Jagdish Singh
Sengar and Sri Sudhir Solanki advocates
on behalf of applicants and the learned
AGA in opposition at a great length and
have
perused
the
application
and
annexure appended therewith.

4. Sri Sengar contended that the
charge sheet and proceeding be quashed
because the informant and other witnesses
have stated on affidavits and statements in
court under Section 164 Cr.P.C. as well as
statements recorded subsequently that
they do not want to litigate the case. He
further submitted that since there is
contradictory
evidence
available
on
record and therefore it was the duty of the
CJM, while summoning the applicants, to
mention as to why he is accepting the
version of the FIR and not subsequent
statements of the witnesses. He contended
that the if, there are contradictory
evidences available on record then it is
duty of the magistrate to record an finding
as to why he is accepting one version
favorable to the prosecution and against
the accused and not the other and, only
after that, he should summon the accused.
Learned
AGA
on
the
other
hand
submitted that there is no such procedure
as has been canvassed by the applicants
counsel. He contended that, at the stage of
summoning, only a prima facie case based
on some admissible evidence is to be seen
and nothing more. He contended that, at
2 All] Sharda Prasad Tiwari and others V. State of U.P.
699
the stage of summoning, the magistrate is
not required to hold a pre trial exercise to
fetch out the niceties of evidence and
record a finding as to reliability of
prosecution the statements on the basis of
which he wants to summon the accused.

5. From the submissions made
above, the only point for determination is
as to whether the magistrate is required to
scan the contradictory evidence available
in the case diary and record a finding as to
why he is believing the statements
favourable to the prosecution and not the
other statement favourable to the accused
before summoning the accused to stand
the trial? But before adverting to the said
question, a note on factual merit of the
case. The FIR and the statements recorded
at various stages of the investigation and
even the statement under section 164
Cr.P.C. of informant and Amit Kuamr
Sharma, it is clear that that there is clear
cut allegation of demand of dowry against
the applicants from the deceased and for
causing her death, because of that, by
burning her. The marriage has taken place
only a month more that 3 and half years.
Thus the ingredients of section 498A and
304 B IPC marriage within seven years of
incident, demand of dowry by the accused
and for causing death of the deceased
because of the said demand, are present in
the present case along with Section 3⁄4
D.P. Act. Hence the case falls within the
mischief of the said offences. Learned
counsel for the applicants also did not
seriously challenged the making out of the
offence but contended that, since there is
contradictory evidences therefore the
magistrate must record it's satisfaction
regarding
acceptability
of
evidence
against the applicant accused in the
summoning order. Thus the material
placed on the record of the case
establishes prima facie offence against the
applicants for which they have been
summoned by the CJM, Allahabad.

6. Now, coming to the submission
made by Sri Sengar, that the magistrate
must record it's satisfaction, before
summoning the accused, if there are
contradictory
evidences
available
on
record of the case diary as to why he is
accepting the version against the accused,
is concerned I see no force in this
submission and it has been canvassed
only to be rejected. The contention is
against the scheme of the ''Code'. The
summoning of the accused is done under
section 204 of the ''code'. That section
provides that Section 204-"If in the
opinion
of
the
magistrate
taking
cognizance of an offence "there is
sufficient ground for proceeding" the
magistrate has to summon the accused.
He has no choice in that event but to
summon the accused. What is meant by
"If in the opinion of the Magistrate taking
cognizance of the offence means? Does it
mean total congruent statements in the
case diary, without any contradictions in
it and then the magistrate should opine to
summon the accused or contrarily, does it
means a triable prima facie case only,
leaving the contradictions to be tested at
the stage of examination-in chief, cross-
examination and re- examination. The
answer is negative in respect of the first
meaning and affirmative in respect of
second meaning. If the first meaning is
allowed to prevail then, it will amount to
recording
a
pre-witness-examination
finding regarding his statements. How can
that be allowed? Every witness has to be
tested on the anvil of probability of his
evidence and his statement has to be
accepted as to be true or false, to record a
finding of guilt or innocence of the
700 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
accused and that can be done only after
his examination in the case before the trial
court is over. There is nothing in the
scheme of the ''code' which permits pre
judging
the
contradictory
statements
before it is recorded and tested through
examination
in
court.
Contradictory
statements of a witness/ witnesses has to
tested for truthfulness for acceptance or
negation, and that can be done only after
the trial is over and the judgment is
delivered or, in between, at the stage of
charge, under various trial procedures
provided under chapters XVIII, XIX, XX
and XXI of the ''Code', starting from
Session's trail and ending at summary
trial. Which of the two contradictory
statements
are
correct
requires
examination without which it is not
possible to accept one of them. There is
yet, one another inherent defect in the
submission of the counsel and that is if,
the magistrate will record a finding as to
which of the two statements he accepts at
the stage of summoning to be believable
and acceptable, then why and for what
purpose the trial will take place. It will
amount to accepting the prosecution
version at the very thresh hold of the case
or rejecting the same and at the same time
forming an opinion regarding inadvertent
of accused in the crime. This will make
the rest of the trial procedure otiose. It has
been held by the Supreme Court in case of
State (Delhi Administration) versus I.K.
Nangia, 1980SCC(Cr) 220, that the
magistrate has to issue process even if,
there is strong suspicion against the
accused. I am also fortified in my view by
the judgment the apex court rendered in
AIR 2000 SC 1456 U.P. Pollution Control
Board Vs. M/s Mohan Meakins Ltd. and
others. In para 6 of the said judgment the
Supreme Court has observed thus:

In a recent decision of the Supreme
Court it has been pointed out that the
legislature has stressed the need to record
reasons in certain situations such as
dismissal of a complaint without issuing
process.
There
is
no
such
legal
requirement imposed on a magistrate for
passing detailed order while issuing
summons vide Kani Bhadra Shah v. State
of West Benghal (2000) 1 SCC 722 (2000
AIR SCW 52: AIR 2000 SC 522: 2000
Crl.LJ 746). The following passage will
be apposite in this context (para 12).
"if there is no legal requirement that
the trial court should write an order
showing the reasons for framing a
charge, why should the already burdened
trial courts be further burdened with such
an extra work. The time has reached to
adopt all possible measures to expedite
the Court procedures and to chalk out
measures to avert all read-blocks causing
avoidable delays. If a magistrate is to
write detailed orders at different stages,
the snail-paced progress of proceedings
in trial courts would further be slowed
down.
We
are
coming
across
interlocutory orders of Magistrates and
Sessions Judges running into several
pages. We can appreciate if such a
detailed order has been passed for
culminating the proceedings before them.
But it is quite unnecessary to write
detailed orders at other stages, such as
issuing process, remanding the accused to
custody, framing of charges, passing over
to next stages in the trial."

7. Thus the submission of the
learned counsel that detail reasons has to
be recorded while summoning does not
command and against the law laid down
by the Apex Court and hence is rejected.
2 All] Raj Bahadur and others V. Commissioner, Agra Division, Agra and others
701
8. In the present case the charge
sheet has already been laid in court
against the present applicants and, from
the material on record of the case, it can
not be said that no offence disclosed at all
against the present applicants. On the
contrary there is more than sufficient
evidence available against the accused to
summon them. On the own showing of
the applicants the witnesses have stated
that they have given affidavits and
statement, favourable to the accused,
under section 164 Cr.P.C. on the basis of
compromise reached between them out
side the court. The said compromise is not
lawful and has got no sanctity of law. It is
only an arrangement between the parties,
which is void and illegal in view of
Section 17 of the Indian Contract Act
such a compromise is against the
provision of the 'code and cannot be
commentated. Thus is cannot be said that
the witnesses have resiled and have
denied their earlier statement anointing
offence against the present applicants.
Their revengeful gesture will not absolve
the accused from the crime committed by
them. Hence the contention of the counsel
for the applicant is devoid of any merit
and deserves to be rejected and is
rejected.

9. This application is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2005

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 29571 of 2000

Raj Bahadur and others ...Petitioners
Versus
Commissioner, Agra Division Agra and
others

...Respondents

Counsel for the Petitioners;
Sri N.S. Chaudhary
Ansu Chaudhary

Counsel for the Respondents:
Sri K.R. Singh Jadaun
S.C.

Constitution of India, Art.-226-Practice
and Procedure-Adjournment illness slip
of counsel-fourth time illness-court has
no option except to proceed with the
matter-court can ignore such illness slip
to present the abuse of process of courtthe Advocates are the part and partial of
the institution-not only as the officer of
the court but also as minister of the
courts-hence can be called upon to
discharge their duty as per with judge
putting illness slip indefinitely coursing
difficulty to his own fellow memberscourt expressed its great concern.
Case law discussed:
AIR 1990 SC-3080

(Delivered by Hon'ble Amitava Lala, J.)

1. This High Court possess unique
system of obtaining adjournments on
account of purported illness. One can
handover a slip to the officer of the Court
and gets adjournment as a matter of
course. No matter how many occasion it
is. This is the fourth occasion when illness