# Shyamdhani Gupta & Ors v. State of U.P.& Anr

- **Citation:** (2019) 4 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-12
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 38531 of 2018
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyamdhani-gupta-ors-v-state-of-u-p-anr-44936
- **Pages:** 6

## Headnote

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: -

## Text

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
4 All. Shyamdhani Gupta & Ors. Vs. State of U.P. & Anr.
213
No. 4009 of 2016 (Bithula Devi Vs.
Awadhesh Kumar Kaushik and others)
under Sections 452, 323, 504, 506 IPC as
well as the order dated 17.9.2018 passed
by IVth Additional Sessions Judge,
Varanasi in Criminal Revision No. 147 of
2018 (Awadhesh Kumar Kaushik and
others Vs. Smt. Bithula Devi and others),
whereby the revision filed by the
applicants was dismissed affirming the
order
of
Additional
Chief
Judicial
Magistrate dated 19.5.2018, rejecting the
application for discharge of the accusedapplicants.

3.

Relevant
facts
for
the
consideration of the present case are that
opposite party no.2 filed a complaint,
registered as Case No. 1557 of 2016 on
5.3.2016 alleging that there was some
dispute between the complainant and the
applicants; that on 20.2.2016 at 3.00 pm,
the accused-applicants entered into the
road side food stall (dhaba) run and
owned by the family of the complainant;
that they used abusive language for the
husband and son of the complainant and
also slapped her husband, whereupon the
persons, who were present there, namely
Pintoo, Shankar, Raju and Vijay, anyhow
saved the husband of the complainant.
After filing of the complaint, statement of
the
complainant
was
recorded
on
11.3.2016 under Section 200 Cr.P.C.,
while the statements of her two witnesses,
namely Bhagwan Das and Pintoo were
recorded under Section 202 Cr.P.C. on
5.4.2016 and 14.4.2016 respectively. The
Magistrate concerned after considering
the statements of the complainant as well
as her witnesses, summoned the accusedapplicants under Section 204 Cr.P.C. for
facing the trial for the offence under
Sections 452, 323, 504, 506 IPC vide
summoning order dated 30.11.2016.

4. Challenging the said summoning
order, an application under Section 482
Cr.P.C. being Application No. 2238 of
2017 was filed by the applicants for
quashing the entire proceedings pursuant
to the said order dated 30.11.2016, which
was rejected by this Court vide order
dated 23.1.2017 with the observation that
prima facie a case for the offences under
Sections 452, 323, 504, 506 IPC is made
out against the applicants and no ground
existed
for
quashing
the
entire
proceedings as well as the summoning
order. However, considering the facts and
circumstances of the case, this Court
observed that in case the applicants appear
before the court concerned within thirty
days from the date of the order and apply
for bail, the same shall be heard and
disposed of in accordance with law
expeditiously. It is also on the record that
the accused-applicants simultaneously filed
a revision against the summoning order
dated 30.11.2016 before the Additional
Sessions Judge, Court No. 14, Varanasi,
under Section 397 Cr.P.C., registered as
Revision No. 17 of 2017, which too was
finally dismissed on 25.7.2017.

5. The accused-applicants instead of
appearing
before
the
Magistrate
concerned
for
bail,
filed
another
application under Section 245 (2) Cr.P.C
through counsel on 30.6.2017 for their
discharge, which was rejected by the IXth
Additional Chief Judicial Magistrate,
Varanasi vide order dated 19.5.2018. The
accused-applicants challenged the said
order by means of filing Criminal
Revision No. 147 of 2018 before the
Sessions Judge, Varanasi, which was later
on transferred to the court of Vth
Additional Session Judge, Varanasi, who
dismissed the same vide order dated
17.9.2018.
214 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Both these orders i.e. order dated
19.5.2018 passed by the Magistrate as
well as the revisional order dated
17.9.2018 passed by the Additional
Sessions Judge, Varanasi are impugned in
the present application.

7. Contention of learned counsel for
the
applicants
is
that
the
entire
prosecution is false and malicious and no
case against the accused-applicants is
made out, and therefore, the applicants be
discharged in view of Section 245 (2) of
Cr.P.C. It is further contended by learned
counsel for the applicants that a civil
litigation between the parties is already
pending and they have been falsely
implicated in the present case.

8. Learned counsel for the applicants
in support of his arguments has placed
reliance on paragraph 23 of the judgment
of the Apex Court in the case of Rajiv
Thapar & Ors vs. Madan Lal Kapoor,
2013 LawSuit (SC) 69.

9. On the other hand, learned
counsel for the opposite party no.2 as well
as learned AGA while supporting the
impugned orders, submitted that earlier
the accused-applicants challenged the
summoning order dated 30.11.2017 before
this Court in an application under Section
482 Cr.P.C, which was dismissed on
23.1.2017 recording a finding that prima
facie against the applicants for the offence
in question was made out and the
accused-applicants failed to comply with
the direction of this Court in the said 482
application as they did not appear before
the court concerned and apply for bail
before the court concerned and therefore,
the provisions of Section 245 Cr.P.C. are
not attracted at all and both the courts
below have rightly passed the impugned
orders rejecting their prayer for discharge
by the orders impugned.

10. I have considered the rival
submissions so raised by learned counsel
for the parties and perused the record.

11. Before considering the argument
so raised by learned counsel for the
applicants, it would be appropriate to
have a look upon the provisions of
Section 244 Cr.P.C, which deal with the
cases instituted otherwise than on a police
report. Section 244 Cr.P.C. reads thus:

"244.
Evidence
for
prosecution.

 (1) When, in any warrant- case
instituted otherwise than on a police
report, the accused appears or is brought
before a Magistrate, the Magistrate shall
proceed to hear the prosecution and take
all such evidence as may be produced in
support of the prosecution.

 (2) The Magistrate may, on the
application of the prosecution, issue a
summons to any of its witnesses directing
him to attend or to produce any document
or other thing."

12. From a reading of Section 244
Cr.P.C, it is apparent that first stage
towards start of warrant trial is the
appearance of the accused before the
Magistrate
concerned,
as
the
clear
mandate of Section 244 is "when accused
appears
or
is
brought
before
the
Magistrate". Section 245 Cr.P.C. comes
after Section 244 Cr.P.C., which is quoted
hereunder:

"245. When accused shall be
discharged.
4 All. Shyamdhani Gupta & Ors. Vs. State of U.P. & Anr.
215

(1) If, upon taking all the
evidence referred to in section 244, the
Magistrate considers, for reasons to be
recorded, that no case against the accused
has been made out which, if unrebutted,
would
warrant
his
conviction,
the
Magistrate shall discharge him.

(2) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded by such Magistrate, he considers
the charge to be groundless."

13. From the aforesaid Sections, it is
apparent that Magistrate after fulfilling
the requirements of Section 244 Cr.P.C.
shall proceed further to consider the
prosecution case taking into consideration
all such evidence as may be produced by
prosecution in support of its case. Section
245 Cr.P.C. has two parts. First part
relates to when evidence under Section
244 Cr.P.C. has been recorded and the
second part relates to the power of
Magistrate to discharge any accused at
any previous stage of the case if for
reasons to be recorded, he considers the
charge to be groundless. The power of the
Magistrate to discharge the accused
undisputedly could be invoked during the
trial. To reach the stage of Section 245
Cr.P.C, it is necessary that trial must begin
in view of Section 244 Cr.P.C, when the
accused appears or is brought before the
Magistrate.

14. How the accused shall appear or
brought before the Magistrate is to be
considered in the light of provisions
contained in Code of Criminal Procedure.
But the fact remains that in spite of clear
direction issued by this Court in their
application under Section 482 Cr.P.C.
No.2238 of 2017 vide order dated
23.01.2017, the accused-applicants failed
to appear before the Court.

15. It is true that in view of Section
245
(2)
Cr.P.C.
the
Magistrate
is
empowered to pass the order of discharge
for the reasons to be recorded after
appearance of the accused and before the
evidence Section 244 Cr.P.C. or during
the course of the day proceedings for
recording the evidence under Section 244
Cr.P.C,
but
the
Magistrate
is
not
empowered to entertain any application
under Section 245 (2) Cr.P.C. unless the
accused has appeared or is brought before
the court in terms of Section 244 Cr.P.C.
Therefore, it cannot be said that accused
without putting his appearance before the
court may participate in any proceedings
or trial pending before a competent court.

16. All these sections make it
mandatory that the trial could only begin
when the accused appears or is brought
before the court in pursuance of the order
passed under Section 204 Cr.P.C. and it is
the part of the procedure relating to the
trial of warrant cases as is clear from the
heading of Chapter XIX of Cr.P.C itself.
Therefore, this Court is of the firm view
that the accused cannot invoke the
jurisdiction under Section 245 (2) Cr.P.C.
unless he appears or is brought before the
Magistrate.

17. This Court in the cases of
Arvind Kejriwal Vs. State of U.P. & Ors,
2015 LawSuit (AII) 3281 and Ajai Pal
Vs. State of U.P. and another, 2013
LawSuit (AII) 531 has also taken the
same view.

18. Paragraph 23 of the judgment of
the Apex Court in the case of Rajiv
Thapar (supra) relied upon by the learned
216 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the applicant, is quoted
hereunder:

"23. Based on the factors
canvassed in the foregoing paragraphs,
we would delineate the following steps to
determine the veracity of a prayer for
quashing, raised by an accused by
invoking the power vested in the High
Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied
upon by the accused is sound, reasonable, and
indubitable, i.e., the material is of sterling and
impeccable quality?

(ii) Step two, whether the
material relied upon by the accused,
would rule out the assertions contained in
the charges levelled against the accused,
i.e., the material is sufficient to reject and
overrule the factual assertions contained
in the complaint, i.e., the material is such,
as would persuade a reasonable person to

dismiss and condemn the factual basis of
the accusations as false.

(iii) Step three, whether the
material relied upon by the accused, has
not
been
refuted
by
the
prosecution/complainant;
and/or
the
material is such, that it cannot be
justifiably
refuted
by
the
prosecution/complainant?

(iv)
Step
four,
whether
proceeding with the trial would result in
an abuse of process of the court, and
would not serve the ends of justice?

If the answer to all the steps is
in the affirmative, judicial conscience of
the High Court should persuade it to
quash such criminal proceedings, in
exercise of power vested in it under
Section 482 of the Cr.P.C. Such exercise of
power, besides doing justice to the
accused, would save precious court time,
which would otherwise be wasted in
holding such a trial (as well as,
proceedings arising therefrom) specially
when, it is clear that the same would not
conclude
in
the
conviction
of
the
accused."

19. The guidelines issued by the
Apex Court in the aforesaid judgment are
with regard to the steps to determine the
veracity of prayer for quashing, raised by
an accused by invoking the power vested
in this Court under Section 482 Cr.P.C.
There is no dispute with regard to the
aforesaid proposition of law as laid down
by the Apex Court.

20. Here in the present case, the
order of Magistrate as well as the
revisional order is under challenge,
whereby the discharge application of the
accused was rejected as not maintainable
which was affirmed by the revisional
court.

21. So far as the contention of
learned counsel for the applicants that
since civil proceeding is pending, the
entire
prosecution
is
vitiated,
is
concerned, the same has no substance.
Mere pendency of civil litigation between
the parties cannot be a ground to allow the
discharge application of the accused.
There is no such proposition of law that if
the civil proceeding is pending between
the parties, then on the same ground, the
criminal proceeding between them shall
be taken as groundless. Thus, the
argument so raised, has no force and
therefore repelled.

22. Earlier, this Court while
rejecting the accused-applicants petition
under section 482,Cr.P.C. vide order dated
4 All. Mohammad Yaqoob Ansari Vs. State of U.P. & Anr.
217
23.1.2017, had observed that in case the
applicants appear before the court within
thirty days and apply for bail, their prayer
for bail shall be considered in accordance
with
law
expeditiously.
Instead
of
appearing before the court concerned in
compliance of the said direction, the
accused applicants through counsel filed
the
application
under
section
245(2),Cr.P.C. for discharge. The stage of
section 245 will come into play after the
stage of section 244, Cr.P.C. When the
accused has not appeared or not brought
before the Magistrate, the question of
discharge does not arise at all. The
accused-applicants will have to adhere to
the provisions of law as provided in the
Code of Criminal Procedure.

23. Taking into account the entire facts
and circumstances of the case and upon
perusal of the record, there appears to be no
illegality or infirmity in the orders
impugned passed by the courts below and
no
ground
is
made
out
warranting
interference under section 482,Cr.P.C.

24. In view of the above, the present
application
lacks
merit
and
is,
accordingly, rejected.
----------
(2019)12 ILR A217

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.07.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
48396 of 2014

Mohammad Yaqoob Ansari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Salman Ahmad

Counsel for the Opposite Parties:
Govt. Advocate, Sri Diwakar Mishra

A.
Criminal
Law
-
The
Negotiable
Instruments Act, 1881 - Section 138 (b)
/Proviso to Section 142(b) - Second
Notice/Reminder - Though the complaint
is required to be submitted within one
month from the date on which the cause
of action arises but by adding the
provision/proviso, vide amendment w.e.f
06.02.2003, cognizance of the complaint
may be taken by the court even after the
prescribed period of 30 days, if the
complainant satisfies the Court about
the reason for not making the complaint
within said period- The trial court would,
after parties have led evidence before it,
judge whether there was sufficient
reason shown by the complainant or not
for having moved the complaint beyond
30 days. Section 138 (b) of the Act - On
facts, the second notice (reminder)
would
fall
within
the
time
limit
prescribed under section 138 (b) of the
Act. Nowhere has it been laid-down that
in case of non-payment of the cheque, if
notice
is
issued
to
the
defaulting
accused, its reminder is barred-The
opposite party no. 2 cannot be put to
disqualification only because he issued
reminder within 17 days, instead of the
statutorily laid-down period of 30 days,
therefore,
the
complaint
should
be
treated well within time.

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

List of cases cited: -

1. MSR Leathers Vs. S. Palaniappan & anr.
((2013) 1 Supreme Court Cases 177,

2. Neerja Parekh Vs. Amit Enterprises, 2012
Law Suit (Del) 474

3. Kapil Upadhyay vs. Milana Auto, 2006
Lawsuit (MP) 140.