# Shishupal Singh & Ors v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 628
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-10
- **Case number:** Application U/S 482. No. 42855 of 2023
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shishupal-singh-ors-v-state-of-u-p-anr-51930
- **Pages:** 5

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 482 -Indian Penal Code,
1860-Sections 147, 308, 323, 504 & 506Challenge
to-summoning
order-FIR
registered based on complaint, followed by
a police investigation that led to a Closure
Report-the closure report was challenged
by a protest petition, which the magistrate
treated as a complaint, leading to the
summoning of the applicants for trial-The
court
observed
that
there
were
discrepancies
and
lack
of
sufficient
evidence to support the complaint-The
court set aside the lower court's order and
the case back for fresh decision.(Para 1 to
15)

B. Issuing a summoning order in a criminal
case is a serious judicial function and
cannot be done mechanically. The order
must reflect a thorough evaluation of the
material on record. When a protest petition
is filed against a police closure report, the
magistrate must ensure that the petition
satisfies the requirements of a complaint
u/s 2(d) CrPC. The magistrate must
carefully consider whether the allegations
in the protest petition , supported by
evidence, are sufficient to take cognizance
of offence u/s 190(1)(a) CrPC. Simply
treating a protest petition as a complaint
without
scrutiny
violates
procedural
law.(Para 10, 12, 13)

The application is allowed. (E-6)

List of Cases cited:
5 All. Shishupal Singh & Ors. Vs. State of U.P. & Anr.
629

## Text

628 INDIAN LAW REPORTS ALLAHABAD SERIES
been served within ten days from the date
of its dispatch. Though it is always open to
the drawer of the cheque to take the plea
during trial, the notice was never served
upon him."

15. In the present case, from the
perusal of the summoning order dated
22.11.2023, it is explicit that the conditions
mentioned above were not discussed as the
cheque number, date of the notice, mode of
service of notice, and fulfilment of the
necessary conditions were not mentioned.

16. Impugned order ex-facie suffers
from infirmity and, therefore, deserves to be
set aside.

17. In view of the above, the order
dated
22.11.2023
passed
by
learned
Additional Chief Judicial Magistrate-II,
Jaunpur, is hereby set aside. The learned
Magistrate is directed to pass a fresh order
in light of the observation made above
within one month from the date of receiving
a copy of this order.

18. With the observation mentioned
above, the present application is allowed.

19. Registrar (Compliance) is directed
to circulate a copy of this order to all District
Judges of the State of Uttar Pradesh; they
will further apprise their subordinate
Judicial
Officers
that
the
essential
ingredients that must be reflected in the
summoning order passed for the offence
under Section 138 N.I. Act.
----------
(2024) 5 ILRA 628
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2024

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Application U/S 482. No. 42855 of 2023

Shishupal Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Raghuvansh Misra

Counsel for the Opposite Parties:
G.A., Sri Prashant Kumar Singh

A. Criminal Law-Criminal Procedure Code,
1973-Section 482 -Indian Penal Code,
1860-Sections 147, 308, 323, 504 & 506Challenge
to-summoning
order-FIR
registered based on complaint, followed by
a police investigation that led to a Closure
Report-the closure report was challenged
by a protest petition, which the magistrate
treated as a complaint, leading to the
summoning of the applicants for trial-The
court
observed
that
there
were
discrepancies
and
lack
of
sufficient
evidence to support the complaint-The
court set aside the lower court's order and
the case back for fresh decision.(Para 1 to
15)

B. Issuing a summoning order in a criminal
case is a serious judicial function and
cannot be done mechanically. The order
must reflect a thorough evaluation of the
material on record. When a protest petition
is filed against a police closure report, the
magistrate must ensure that the petition
satisfies the requirements of a complaint
u/s 2(d) CrPC. The magistrate must
carefully consider whether the allegations
in the protest petition , supported by
evidence, are sufficient to take cognizance
of offence u/s 190(1)(a) CrPC. Simply
treating a protest petition as a complaint
without
scrutiny
violates
procedural
law.(Para 10, 12, 13)

The application is allowed. (E-6)

List of Cases cited:
5 All. Shishupal Singh & Ors. Vs. State of U.P. & Anr.
629
1. Pepsi Foods Ltd. & anr. Vs Spl. J.M. & ors.
(1998) 5 SCC 749

2. Mukhtar Zaidi Vs St. of U.P. & anr.(2024) SCC
Online SC 553

3. Mahmood UI Rehmand Vs Khazir Mohd. Tund
(2016 (Cri) 124,

(Delivered by Hon'ble Ms.Nand Prabha
Shukla, J.)

1. Heard Sri Raghuvansh Misra,
learned counsel for the applicants, learned
A.G.A. for the State of U.P. and Sri Prashant
Kumar Singh, learned counsel for the
opposite party no. 2.

2. Perused the record.

3. The present application under
Section 482 Cr.P.C. has been filed to quash
the order dated 25.01.2023 as well as the
summoning order dated 26.05.2023 passed
by the Chief Judicial Magistrate, Kanpur
Dehat in Complaint Case No.803 of 2023
(Manju Shukla vs. Shishupal Singh Katiyar)
under Sections 147, 308, 323, 504, 506 IPC,
(Case Crime No.58 of 2022), Police Station
Gajner, District Kanpur Dehat as well as the
entire
proceedings
of
the
aforesaid
complaint case pending in the Court of Chief
Judicial Magistrate, Kanpur Dehat against
the applicants.

4. Learned counsel for the applicants
submitted that the opposite party no.2 Smt.
Manju Shukla moved an application dated
25.03.2022 under Section 156 (3) Cr.P.C. on
the basis of which a First Information Report
dated 02.04.2022 was registered as Case
Crime No. 58 of 2022, under Sections 147,
308, 323, 504 IPC, Police Station Gajner,
District Kanpur Dehat alleging that on
15.03.2022 her two sons Gopal Shukla and
Ram Shukla were going to their fields on a
motorcycle and were ambushed by the
applicants near the house of village Pradhan
Rekha Singh (wife of applicant no.1
Shishupal Singh). Shishupal Singh hit an
axe on the head of Gopal Shukla and Ram
Shukla was assaulted with sticks. Upon
hearing about the incident, her other two
sons Govind Shukla and Chhotu Shukla
went to rescue the injured and found them
lying unconscious. At the place of
occurrence, a Milk Dairy was situated
owned by Bhanu Pratap Singh, whose
employee, namely, Shubham Shukla fired
with a country made pistol of 315 bore
causing injury to Akanshu.

5. On 15.03.2022, Gopal Shukla was
medically examined at District Hospital,
Kanpur Dehat. A lacerated wound of 6x5 cm
was found on the head with irregular
margins and complaint of pain in right
thumb. All the injuries were found to be
simple in nature. A CT Scan of the head of
Gopal Shukla was conducted on 15.03.2022
and soft tissue scalp injury was noted with
no intra-cranial abnormality. The injured
was discharged in a satisfactory condition
on 17.03.2022.

6. After the registration of the FIR, the
investigation was conducted and the Closure
Report/Final Report dated 26.04.2022 under
Section 173(2) Cr.P.C. was prepared and
submitted before the concerned Court.
Against the said Closure Report/Final
Report the opposite party no. 2 moved a
protest petition which was treated as a
complaint case vide order dated 25.01.2023
passed by Judicial Magistrate, Court No. 2,
Kanpur Dehat and after examining upon
oath the complainant and the witnesses
under Sections 200 and 202 Cr.P.C., the
Chief Judicial Magistrate, Kanpur Dehat
vide order dated 26.05.2023 summoned the
accused/applicants to face trial.
630 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned counsel for the applicants
have assailed the aforesaid order dated
25.01.2023
passed
by
the
Judicial
Magistrate, Court No. 2, Kanpur Dehat and
order dated 26.05.2023 passed by the Chief
Judicial Magistrate, Kanpur Dehat on
following grounds :-

(i) The impugned orders have
been passed without application of mind.

(ii) The learned Trial Court
committed a manifest error in treating the
protest petition as a complaint case and
rejected the Closure Report/Final Report
without adverting to the material collected
during investigation and followed the
procedure of complaint case mechanically.

(iii) The opposite party No. 2 Smt.
Manju Shukla, in order to settle the score
and to mount pressure for compromise
against the cross case, i.e. FIR bearing Case
Crime No. 47 of 2022, under Sections
34/307, 323, 504 IPC at Police Station
Gajner, District Kanpur Dehat, lodged the
impugned criminal proceedings against the
applicants.

(iv) Injured Ram Shukla was
though alleged to have been assaulted but no
medical report was produced.

(v) The independent eye-witness
Jaipal Singh, in his statement under Section
161 Cr.P.C. stated that while Gopal Shukla
was fleeing from the spot, his legs went
inside the drain and his head hit at the wall
which resulted in head injury.

(vi) That no offence as alleged
took place and the injuries were not to be
grievous to attract punishment under
Section 308 IPC.

8. It was thus submitted that as no such
incident took place as alleged, therefore
after conclusion of investigation, a Final
Report/Closure Report dated 26.04.2022
was submitted. But the learned Trial Court
without application of mind had rejected the
Final Report/Closure Report. The Protest
Petition moved by the opposite party no.2
was treated as a complaint case and the
accused/applicants have been summoned to
face trial without any reasoned and speaking
order and, therefore, it is liable to be setside. The learned Trial Court recorded a
wrong finding which was not based on the
material recorded under Sections 200 and
202 Cr.P.C., therefore, the findings recorded
by the Trial Court was perverse and was
liable to be set-aside.

9. Learned counsel for the applicants
in support of his submissions has relied upon
the judgment rendered by the Hon'ble
Supreme Court in Pepsi Foods Ltd. And
Another vs. Special Judicial Magistrate
and others, (1998) 5 Supreme Court Cases
749, wherein it has been observed that:

"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. Magistrate has
to carefully scrutinize the evidence on
record and may even himself put questions
to the complainant and his witnesses to elicit
answers to find out the truthfulness of the
5 All. Shishupal Singh & Ors. Vs. State of U.P. & Anr.
631
allegations or otherwise and then examine if
any offence is prima facie committed by all
or any of the accused."

(Emphasis supplied)

10. Per contra, learned A.G.A. as well
as learned counsel for the opposite party
no.2
vehemently
opposed
the
above
submissions of the learned counsel for the
applicants and submitted that there is no
illegality or perversity in the order
impugned. The learned Trial Court on the
basis of the material under Sections 200 and
202 Cr.P.C. has rightly summoned the
applicants to face trial.

11. Having heard learned counsel for
the parties and upon perusal of the record it
transpires that the learned Trial Court has
not applied its judicial mind while passing
the impugned summoning order. The
impugned order contains the substance of
the examination of the complainant Smt.
Manju Shukla on oath recorded under
section 200 Cr.P.C., who is not an eye
witness of the incident. There is no whisper
of statement on oath of Gopal Shukla and
Ramji Shukla two injured examined on oath
who were the material witnesses. There is no
description about the nature of injuries
inflicted to the injured Gopal though from
the perusal of the records, it transpires that it
was simple in nature caused by hard and
blunt object. The alleged injured witness
Ramji Shukla was not even medically
examined. There are certain other noticeable
discrepancies. It appears that as an
afterthought, the application under Section
156 (3) Cr.P.C. has been moved after a delay
of about 10 days on the basis of false and
fabricated injury report to mount pressure
and to settle the score in the cross case, i.e.,
Case Crime No. 47 of 2022, under Sections
34, 307, 323, 504 IPC, P.S. Gajner, District
Kanpur Dehat, which was registered prior in
point of time. The said injuries can be
fabricated. After the investigation, the
Police adverted to the filing of Closure
Report/Final Report. However, the learned
Trial Court without application of mind
rejected the said Final Report and on the
basis of the protest petition of opposite party
No. 2 summoned the applicants to face trial
in a cursory manner by taking cognizance
obviously under section 190(1)(a) of the
Cr.P.C. and proceeded against the applicants
by issuing process under Sections 147, 308,
323, 504 and 506 IPC. Therefore, the
summoning order is bad in the eyes of law.

12. At this juncture, it is imperative to
quote paragraph-9 of the judgment rendered
by Hon'ble the Supreme Court in Mukhtar
Zaidi vs. State of Uttar Pradesh and
another, 2024 SCC Online SC 553, which
reads as under:

"44. We may also notice that in
Veerappa v. Bhimareddappa [Veerappa v.
Bhimareddappa, 2001 SCC OnLine Kar 447
: 2002 Cri LJ 2150] , the High Court of
Karnataka observed as follows: (SCC
OnLine Kar para 9)

"9. From the above, the position
that emerges is this: Where initially the
complainant has not filed any complaint
before the Magistrate under Section 200
CrPC, but, has approached the police only
and where the police after investigation
have filed the 'B' report, if the complainant
wants to protest, he is thereby inviting the
Magistrate to take cognizance under Section
190(1)(a) CrPC on a complaint. If it were to
be so, the Protest Petition that he files shall
have to satisfy the requirements of a
complaint as defined in Section 2(d) CrPC,
and that should contain facts that constitute
offence, for which, the learned Magistrate is
taking cognizance under Section 190(1)(a)
632 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC. Instead, if it is to be simply styled as
a Protest Petition without containing all
those necessary particulars that a normal
complaint has to contain, then, it cannot be
construed as a complaint for the purpose of
proceeding under Section 200 CrPC."

13. In the same sequel, it is necessary
to cite the observations of Hon'ble the Apex
Court in Mahmood UI Rehmand vs. Khazir
Mohd. Tund (2016) 1 SCC (Cri) 124, which
reads as under:

" That the cognizance of an
offence on complaint is taken for the
purpose of issuing process to the accused.
Since it is a process of taking 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 alongwith
the statement 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 to set in motion the process of
criminal law against a person in a
serious matter."

14. This Court is of the considered
opinion that the mandate of provisions of
Sections 200 and 202 Cr.P.C. has been
clearly violated. Learned Trial Court should
have carefully scrutinized the complete
material to find out the truthfulness of
allegations and the basis of prima facie
satisfaction
before
summoning
the
applicants at the time of recording of
preliminary evidence. Thus, the orders
impugned dated 25.01.2023 and 26.05.2023
are not tenable.

15.

Consequently,
the
present
Application U/S 482 Cr.P.C. is allowed.

16. The order dated 25.01.2023 passed
by Judicial Magistrate, Court No. 2, Kanpur
Dehat and the summoning order dated
26.05.2023 passed by the Chief Judicial
Magistrate, Kanpur Dehat in Complaint
Case No.803 of 2023 (Manju Shukla vs.
Shishupal Singh Katiyar) under Sections
147, 308, 323, 504, 506 IPC, (Case Crime
No.58 of 2022), Police Station Gajner,
District Kanpur Dehat, are hereby set-aside.

17. The matter is hereby remitted back
to the Court concerned to pass a fresh order
within a period of two months from the date
of production of a certified copy of this
order in the light of the observations made
herein above.
----------
(2024) 5 ILRA 632
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 1135 of 2024

Krishna ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Intekhab Alam Khan, Sri Vaibhav
Shandilya,
Sri
Vivek
Shandilya
(Sr.
Advocate)

Counsel for the Opposite Parties:
G.A., Sri Ajay Sengar, Sri R.K. Srivastava

A. Criminal Law-Criminal Procedure Code,
1973-Section
438-Indian
Penal
Code,
1860- - 3⁄4 POCSO Act, 2012 - Sections 363
& 376(3) - FIR lodged regarding the
incident
in
which
final
report
was
submitted at earlier point of time-Later a