# Shiv Sahai & Ors v. State of U.P.& Anr

- **Citation:** (2019) 4 ILRA 209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-21
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 37504 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-sahai-ors-v-state-of-u-p-anr-44935
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 & Indian
Penal Code,1860- Sections 148, 149,
452,
380
and
506-challenge
tosummoning order-counter-blast case- In
exercising jurisdiction under Section 482
High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not. (Para 6)

High Court can exercise jurisdiction suo motu
in the interest of justice. It can do so while
exercising other jurisdictions such as appellate
or revisional jurisdiction. No formal application
for invoking inherent jurisdiction is necessary.
Inherent jurisdiction can be exercised in
respect of substantive as well as procedural
matters. It can as well be exercised in respect
of
incidental
or
supplemental
power
irrespective of nature of proceedings. (Para 5)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of cases cited: -

## Text

4 All. Shiv Sahai & Ors. Vs. State of U.P. & Anr.
209

7. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded
as above.

8. In view of what has been
discussed above, this Application, being
devoid of merits, deserves dismissal and
stands dismissed accordingly
----------

(2019)12 ILR A209

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
37504 of 2019

Shiv Sahai & Ors. ...Applicants
Versus
State of U.P.& Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anurag Kumar Pandey

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

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 & Indian
Penal Code,1860- Sections 148, 149,
452,
380
and
506-challenge
tosummoning order-counter-blast case- In
exercising jurisdiction under Section 482
High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not. (Para 6)

High Court can exercise jurisdiction suo motu
in the interest of justice. It can do so while
exercising other jurisdictions such as appellate
or revisional jurisdiction. No formal application
for invoking inherent jurisdiction is necessary.
Inherent jurisdiction can be exercised in
respect of substantive as well as procedural
matters. It can as well be exercised in respect
of
incidental
or
supplemental
power
irrespective of nature of proceedings. (Para 5)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of cases cited: -

1. St. of A.P. Vs Gour Sheety Mahesh J.T.
2010 (6) SCC 588

2. Hamida Vs Rashid (2008) 1 SCC 474

3. Monika Kumar Vs St. of U.P. (2008) 8 SCC 781

4. Popular Muthiah Vs State, Represented by
Inspector of Police, (2006) 7 SCC 296

5. Dhanlakshmi Vs R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494

6. St. of Bih. Vs Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1

7. Amrawati and anr.Vs. St.of U.P. r 2004 (57)
ALR 290

8. Lal Kamlendra Pratap Singh Vs. St. of U.P.
2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Heard learned counsel for the
applicants over this Application, moved
by the applicants, under Section 482 of
the Code of Criminal Procedure, 1973, (In
short 'Cr.P.C.'), with a prayer for setting
aside summoning order, dated 26.10.2018,
passed by the court of Ist Additional Chief
Judicial Magistrate, Shahjahanpur, in
Criminal Complaint Case No. 5201 of
2016, Kallu vs. Shiv Sahai and others,
under Sections 148, 149, 452, 380 and
506 of Indian Penal Code (In short 'IPC'),
Police
Station-Panaur,
District
Shahjahanpour , thereby, quashing entire
criminal proceeding of above case, as
210 INDIAN LAW REPORTS ALLAHABAD SERIES
well as learned AGA, representing the
State of U.P. and perused the record.

2. Learned counsel for the applicants
argued
that
this
was
a
malicious
prosecution and misuse of process of law.
A complaint case was filed by the
applicants'
side
against
the
present
complainant side as Complaint Case No.
354 of 2016, wherein, on the date of
occurrence, i.e., 21.4.2016, at about 07:00
AM, there occurred some quarrel between
the kids and when the complainant went
there to get the matter settled, Kallu,
Sonelal, Natthu, Sudesh and Raju, armed
with Lathi and Danda, came there. They
abused complaint and did assault. They
have been summoned for offences,
punishable, under Sections 323, 504, 506
IPC
and
in
counter-blast,
present
complaint has been filed by the other side,
wherein, there was variance in the
statements
of
complainant
and
his
witnesses. There was no medico legal
report nor any injury report, even then,
impugned summoning order was passed.
Hence, this Application, with above
prayer.

3. Learned AGA, representing State
of U.P., opposed this Application.

4. Perusal of the complaint and
summoning order reveals that for the
occurrence of 21.4.2016, already a case
was got registered as NCR upon the
report of the present applicants' side,
wherein order for investigation has been
passed and for same occurrence Criminal
Complaint Case No. 354 of 2016 was
filed in which above summoning order
was passed. Meaning thereby, it is the
contention that for occurrences of the
same date, there were two cases against
each other. Hence, this case is being said
to be counter-blast of other case, which is
against fact, as this occurrence is said to be
of 15.7.2016, at about 8.00 PM, while, the
complainant was at his home, Shiv Sahai,
Sukhram , Shivram, Bhure @ Dinne @
Dinesh, Raju, Vimlesh, Ramnath, Mukesh,
Jasant and Ramnath, armed with single
barrel gun, by making unlawful assembly,
came at the home of the complainant,
wherein a riot was committed, then after,
above occurrence was said to have been
committed, which was punishable, under
Sections 148, 149, 452, 380 and 506 IPC.
Complainant, in his statement, recorded,
under Section 200 Cr.P.C., and his two
witnesses, examined by the Magistrate,
under Section 202 of Cr.P.C., have reiterated
the same version, as was mentioned in the
complaint. Complainant's statement was
supported by PW-1, Asha, PW-2, Dharam
Singh and PW-3, Natthu, on the basis of
which upon enquiry, the Magistrate passed
impugned summoning order against Shiv
Sahai, Sukhram , Shivram, Bhure @ Dinne
@ Dinesh, Raju, Vimlesh, Ramnath,
Mukesh, Jasant and Ramnath, for offences,
punishable, under Sections 148, 149, 452,
380 and 506 IPC. Hence, prima facie there
was sufficient evidence for passing above
summoning
order.
At
the
time
of
summoning
order, there required
no
meticulous analysis of evidences, rather a
prima facie evidence was deemed to be
sufficient for passing summoning order and
it was there. Meticulous analysis of the
evidence is not to be made by this Court, in
exercise of inherent power, under Section
482 of Cr.P.C., while entertaining this
Application, moved, under Section 482 of
the Cr.P.C., rather this is to be seen by the
trial court, at the time of trial.

5. Saving of inherent power of High
Court, as given under Section 482 Cr.P.C,
provides that nothing in this Code shall be
4 All. Shiv Sahai & Ors. Vs. State of U.P. & Anr.
211
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice.
Meaning thereby this inherent power is
with High Court (I) to make such order as
may be necessary to give effect to any
other order under this Code (II) to prevent
abuse of the process of any Court (III) or
otherwise to secure the ends of justice.
But Apex Court in State of Andhra
Pradesh v. Gaurishetty Mahesh, JT
2010 (6) SC 588: (2010) 6 SCALE 767:
2010 Cr. LJ 3844 has propounded that
"While
exercising
jurisdiction
under
section 482 of the Code, the High Court
would not ordinarily embark upon an
enquiry whether the evidence in question
is reliable or not or whether on a
reasonable apprehension of it accusation
would not be sustained. That is the
function of the trial Judge/Court". In
another subsequent Hamida v. Rashid,
(2008) 1 SCC 474, hon'ble Apex Court
propounded that "Ends of justice would be
better served if valuable time of the Court
is spent in hearing those appeals rather
than entertaining petitions under Section
482 at an interlocutory stage which after
filed with some oblique motive in order to
circumvent the prescribed procedure, or
to delay the trial which enable to win over
the witness or may disinterested in giving
evidence,
ultimately
resulting
in
miscarriage of Justice". In again another
subsequent Monica Kumar v. State of
Uttar Pradesh, (2008) 8 SCC 781, the
Apex Court has propounded "Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in the section itself." While
interpreting this jurisdiction of High
Court Apex Court in Popular Muthiah v.
State, Represented by Inspector of
Police,
(2006)
7
SCC
296
has
propounded "High Court can exercise
jurisdiction suo motu in the interest of
justice. It can do so while exercising other
jurisdictions
such
as
appellate
or
revisional
jurisdiction.
No
formal
application
for
invoking
inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters.
It can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".

6. Regarding prevention of abuse of
process
of
Court, Apex
Court
in
Dhanlakshmi v. R.Prasana Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC
494 has propounded "To prevent abuse of
the process of the Court, High Court in
exercise of its inherent powers under
section 482 could quash the proceedings
but there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in
State of Bihar v. Murad Ali Khan,
(1989) Cr LJ 1005: AIR 1989 SC 1,
Apex Court propounded "In exercising
jurisdiction under Section 482 High Court
would not embark upon an enquiry
whether the allegations in the complaint
are likely to be established by evidence or
not".

7. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above.

8. In view of the discussed, herein
above, this Application, under Section
212 INDIAN LAW REPORTS ALLAHABAD SERIES
482 of Cr.P.C., being devoid of merits,
deserves to be dismissed and is dismissed
accordingly.

9. However, it is directed that if the
applicants appear and surrender before the
court below within 30 days from today
and apply for bail, their prayer for bail
shall be considered and decided in view
of the settled law laid by this Court in the
case of Amrawati and another Vs. State
of U.P. reported in 2004 (57) ALR 290
as well as judgement passed by Hon'ble
Apex Court reported in 2009 (3) ADJ 322
(SC) Lal Kamlendra Pratap Singh Vs.
State of U.P.

10. For a period of 30 days from
today, no coercive action shall be taken
against the applicants. However, in case,
the applicants do not appear before the
Court below within the aforesaid period,
coercive action shall be taken against
them.
----------

(2019)12 ILR A212

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
38531 of 2018

Shyamdhani Gupta & Ors. ...Applicants
Versus
State of U.P.& Anr. Opposite Parties

Counsel for the Applicants:
Sri Kameshwar Singh, Sri Rajesh Kumar,
Sri Vijay Bhan

Counsel for the Opposite Parties:
A.G.A., Sri Rajesh Kumar, Sri Vijay Bhan
Singh

A. Criminal Law - Code of Criminal
Procedure - Discharge - Sections 204,
244,
245(2)
&
482
-
Discharge
application rejected as not maintainable
-The
power
of
the
Magistrate
to
discharge the accused could be invoked
during the trial but to reach the stage of
Section 245 Cr.P.C, it is mandatory that
trial must begin in view of Section 244
Cr.P.C, when the accused appears or is
brought
before
the
Magistrate
in
pursuance of the order passed under
Section 204 Cr.P.C.- When the accused
has not appeared or is not brought
before the Magistrate, the question of
discharge does not arise at all -Mere
pendency of civil litigation between the
parties cannot be a ground to allow the
discharge application of the accused.
 (Para 12,12,15,16 & 21)

Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

1. Rajiv Thapar & Ors Vs. Madan Lal Kapoor,
2013 LawSuit (SC) 69

2. Arvind Kejriwal Vs. State of U.P. & Ors,
2015 LawSuit (AII) 3281

3. Ajai Pal Vs. State of U.P. and anr., 2013
LawSuit (AII) 531

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard Sri Kameshwar Singh and
Sri Rajesh Kumar, learned counsel for the
applicants, Sri Vijay Bhan Singh, learned
counsel for the opposite party no.2 and
learned AGA for the State.

2. The present application under
Section 482 Cr.P.C. has been filed for
quashing the order dated 19.5.2018
passed by Additional Chief Judicial
Magistrate, Court No. 9, Varanasi in Case