# Smriti Singh @ Mausami Singh & Ors v. State of U.P. & Anr

- **Citation:** (2023) 12 ILRA 483
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-19
- **Case number:** Application U/S 482. No. 23148 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smriti-singh-mausami-singh-ors-v-state-of-u-p-anr-49609
- **Pages:** 9

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power,
Indian
Penal
Code,
1860
-
Section109 - Punishment of abetment if
the
act
abetted
is
committed
in
consequence
and
when
no
express
provision is made for its punishment,
Sections 494 - Marrying again during lifetime of husband or wife - Hindu Marriage
Act, 1955 - Section 7 - Ceremonies for a
Hindu marriage - to constitute an offence
under Section 494 I.P.C., it is necessary
that the second marriage should have
been celebrated with proper ceremonies
484 INDIAN LAW REPORTS ALLAHABAD SERIES
and in due form - when a prosecution at
the initial stage is asked to be quashed,
the test to be applied by the Court is as to
whether the uncontroverted allegations as
made
prima
facie
establish
the
offence.(Para - 10,11, 12)

(B) Word of phrases - 'solemnize' - means,
in
connection
with
a
marriage,
'to
celebrate
the
marriage
with
proper
ceremonies and in due form' - Unless the
marriage is celebrated or performed with
proper ceremonies and due form, it cannot
be said to be 'solemnized' - If the
marriage
is
not
a
valid
marriage,
according to the law applicable to the
parties, it is not a marriage in the eyes of
law - 'Saptapadi' - ceremony under the
Hindu
Law
is
one
of
the essential
ingredients to constitute a valid marriage.
(Para -11)

Complaint of opposite party no. 2 - quashing of
summoning order - counter-blast case against
applicants - application under Section 125
Cr.P.C. of applicant no. 1 - allegation of second
marriage
levelled
against
applicant
no.1-
without any cogent material admissible in
evidence - statements under Section 200 and
202 Cr.P.C. - neither negative nor certificate
under Section 65B(4) of Indian Evidence Act
filed by complainant - source of photograph not
mentioned
by
complainant
in
the
complaint.(Para - 3, 4, 11)

HELD:- No prima-facie offence made out
against the applicants as the allegation of
second marriage is a bald allegation without
corroborative materials. Basic ingredients to
constitute an offence under Section 494 read
with section 109 of I.P.C. lacking. Photograph
not sufficient to prove the factum of marriage,
especially when the same are not proved on
record in accordance with the Evidence Act.
Criminal proceedings against the applicants
initiated by opposite party No. 2 are nothing but
a malicious prosecution with an ulterior motive,
which is clear abuse of process of the Court.
Impugned summoning order not sustainable,
quashed.(Para - 11, 13, 14)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

12 All. Smriti Singh @ Mausami Singh & Ors. Vs. State of U.P. & Anr.
483
action even proved to be arbitrary or
unreasonable.

27. In view of the aforesaid
judgements, it is not open for the petitioner
to challenge the bid condition and specially,
in the light of the judgement by the
Hon'ble Supreme Court, no bidder has a
right to challenge the bid condition and it is
open for the Government to impose any
kind of conditions in the bid. The Court
cannot interfere on the bid conditions
unless the same is arbitrary or has been
introduced mala fidely. In this case, the
tender condition introduced in the tender
was in sync with the guidelines laid down
by the Government of India.

28. It is further held that as per the
government policy, all the government
tenders and procurement has necessarily to
be done through GeM portal. It is a
technology driven platform to facilitate
procurement of goods and services of
various
government
departments.
Introduction of such portal was actually a
need of the hour. This platform does the
comparison process and automatically
choose by using an auto-run method to
find the 'L-1'. This portal further
eliminates any interference in placing the
order and processing the payment. The
platform
actually
sends
digital
notifications to all the registered vendors
and to the buyers who intends to buy any
goods or services. It also ensures a
cashless time-bound payment directly to
the
bank.
This
also
increases
the
competition, whereby, the government
are able to procure the goods and services
at a very competitive rate. The steps
taken by the government to all the goods
and services procured through this portal
is in the best interest to both buyers and
sellers.

29. Moreover, the tender has already
been granted to a third party who are duly
qualified as per the bid conditions and have
started working with effect from 01st
September, 2023. The petitioner, herein,
has failed to raise any substantial question
which would call for adjudication by this
Court and has failed to make out any case
for quashing the tender and accordingly, the
writ petition is dismissed.
----------
(2023) 12 ILRA 483
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482. No. 23148 of 2022

Smriti Singh @ Mausami Singh & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shri Prakash Dwivedi, Sri Saurabh
Sachan

Counsel for the Opposite Parties:
G.A., Sri Ajatshatru Pandey, Ms. Pratiksha
Rai

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power,
Indian
Penal
Code,
1860
-
Section109 - Punishment of abetment if
the
act
abetted
is
committed
in
consequence
and
when
no
express
provision is made for its punishment,
Sections 494 - Marrying again during lifetime of husband or wife - Hindu Marriage
Act, 1955 - Section 7 - Ceremonies for a
Hindu marriage - to constitute an offence
under Section 494 I.P.C., it is necessary
that the second marriage should have
been celebrated with proper ceremonies
484 INDIAN LAW REPORTS ALLAHABAD SERIES
and in due form - when a prosecution at
the initial stage is asked to be quashed,
the test to be applied by the Court is as to
whether the uncontroverted allegations as
made
prima
facie
establish
the
offence.(Para - 10,11, 12)

(B) Word of phrases - 'solemnize' - means,
in
connection
with
a
marriage,
'to
celebrate
the
marriage
with
proper
ceremonies and in due form' - Unless the
marriage is celebrated or performed with
proper ceremonies and due form, it cannot
be said to be 'solemnized' - If the
marriage
is
not
a
valid
marriage,
according to the law applicable to the
parties, it is not a marriage in the eyes of
law - 'Saptapadi' - ceremony under the
Hindu
Law
is
one
of
the essential
ingredients to constitute a valid marriage.
(Para -11)

Complaint of opposite party no. 2 - quashing of
summoning order - counter-blast case against
applicants - application under Section 125
Cr.P.C. of applicant no. 1 - allegation of second
marriage
levelled
against
applicant
no.1-
without any cogent material admissible in
evidence - statements under Section 200 and
202 Cr.P.C. - neither negative nor certificate
under Section 65B(4) of Indian Evidence Act
filed by complainant - source of photograph not
mentioned
by
complainant
in
the
complaint.(Para - 3, 4, 11)

HELD:- No prima-facie offence made out
against the applicants as the allegation of
second marriage is a bald allegation without
corroborative materials. Basic ingredients to
constitute an offence under Section 494 read
with section 109 of I.P.C. lacking. Photograph
not sufficient to prove the factum of marriage,
especially when the same are not proved on
record in accordance with the Evidence Act.
Criminal proceedings against the applicants
initiated by opposite party No. 2 are nothing but
a malicious prosecution with an ulterior motive,
which is clear abuse of process of the Court.
Impugned summoning order not sustainable,
quashed.(Para - 11, 13, 14)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

1. Bhaurao Shankar Lokhande & anr. Vs St. of
Maha. & anr. , AIR 1965 SC 1564

2. Priya Bala Ghosh Vs Suresh Chandra Ghosh ,
(1971) 1 SCC 864

3. Gopal Lal Vs St. of Raj. , (1979) 2 SCC 170

4. Madhavrao Jiwajirao Scindia & ors. Vs
Sambhajirao chandrojirao Angre & ors. , (1988)
1 SCC 692

5. St. of Har. & ors. Vs Chaudhary Bhajan Lal &
ors. , 1992 SCC (Cri) 426

6. Pepsi Foods Ltd. Vs S.J.M. , (1998) 5 SCC 749

7. Dilawar Balu Kurane Vs St. of Maha. , (2002)
2 SCC 135

8. Som Mittal Vs Govt. of Karn. , (2008) 3 SCC
753

9. Ravinder Singh Vs Sukhbir Singh & ors. ,
(2013) 9 SCC 245

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard Mr. Saurabh Sachan, learned
counsel for the applicants, Mr. Rabindra
Kumar
Singh,
learned
Additional
Government Advocate assisted by Ms.
Pratiksha Rai, learned Brief Holder for the
State of U.P./opposite party No.1 and Mr.
Ajatshatru
Pandey,
learned
counsel
appearing on behalf of the opposite party
no. 2.

2- This application under Section 482
Cr.P.C. has been filed by the applicants
with a prayer to quash the summoning
order dated 21.04.2022 and proceedings of
Complaint Case No. 2513 of 2021 (Satyam
Singh vs. Smriti Singh), under Sections 494
and 109 I.P.C., Police Station Sigra,
District Varanasi, pending in the Court of
12 All. Smriti Singh @ Mausami Singh & Ors. Vs. State of U.P. & Anr.
485
learned Civil Judge (J.D.) F.T.C. 1st,
Varanasi.

3- The facts of the case which are
required
to
be
stated
are
that
on
05.06.2017,
marriage
of
the
complainant/opposite party no. 2-Satyam
Singh was solemnized with the applicant
no.1-Smriti Singh alias Mausami Singh as
per Hindu Rites and Rituals but their
marriage was not successful and on account
of acrimonious relation and matrimonial
dispute, applicant no. 1 lodged a first
information report on 30.06.2017 registered
at Case Crime No. 0341 of 2017 for the
offence under Sections 498-A, 323, 504,
506, 354 I.P.C. and Sections 3/4 Dowry
Prohibition Act, at Police Station-Kotwali
Dehat, District-Mirzapur against opposite
party no. 2 and his other family members
namely Kaushlendra Pratap Singh, Suman
Singh and Shivam Singh @ Banti making
allegations inter-alia of her harassment and
torture by the accused persons adopting
different
modus-operandi
as
well
as
demand of additional dowry. In the F.I.R.,
it is also alleged that on account of nonfulfillment of their demand of dowry, she
was ousted from her matrimonial home on
22.06.2017.
After
culmination
of
investigation,
charge-sheet
dated
24.01.2018 has been submitted against all
the accused persons named in the F.I.R.
dated 30.06.2017. The said charge-sheet
was challenged by the accused persons
including opposite party no. 2 by filing an
Application under Section 482 Cr.P.C. No.
929 of 2019, in which the matter was
referred to mediation and conciliation
centre vide order dated 10.01.2019 but the
mediation between the parties concerned
has failed. The applicant no. 1, in addition
to F.I.R. dated 30.06.2017, also filed a
Criminal Misc. Case No. 64 of 2018, under
Section 125 of Cr.P.C. before the Principal
Judge, Family Court, Mirzapur which was
decided ex-parte by the Family Court vide
order dated 11.01.2021 and the opposite
party no. 2 (husband of applicant no. 1)
was directed to pay a sum of Rs. 4,000/-
per month to his wife (applicant no. 1) until
she gets remarried. Thereafter, opposite
party no. 2 gave an application before the
Higher Police Officials making allegation
of bigamy against his wife-Smriti Singh @
Mausami/applicant
no.1.
The
said
application was thoroughly investigated by
the Circle Officer Sadar, District Mirzapur
and allegations of bigamy etc. against the
applicant
no.
1
was
found
false.
Accordingly,
inquiry
report
dated
06.01.2021 was submitted by Circle Officer
Sadar, Mirzapur to Superintendent of
Police,
Mirzapur.
After
that
the
complainant/opposite party no. 2 filed a
complaint dated 20.09.2021 against the
applicants as well as against Mahant Singh
@ Raghvendra Singh, Jhallar Singh, Vimla
Devi, Ramjit Singh and six-seven other
unknown persons for the alleged offence
under Sections 494 and 109 I.P.C. making
allegations inter-alia that the applicant no.
1-Smriti Singh @ Mausami Singh had
sanctified
her
second
marriage
on
03.09.2017
with
Mahant
Singh
@
Raghvendra Singh s/o Jhallar Singh r/o
Village Bhikaripur, Police Station Kachwa,
District Mirzapur in the house of Ramjit
Singh situated in District Varanasi in
accordance with Vidhiwat Hindu Dharm
Shastra and she is living with her second
husband without taking divorce from him.
The learned Magistrate, after recording the
statement of the complainant under Section
200 Cr.P.C. and his witnesses namely
Kaushlendra Pratap Singh and Suraj Kumar
Rai as PW-1 and PW-2 respectively,
summoned the applicants as well as other
co-accused persons under Sections 494/109
I.P.C. vide order dated 21.04.2022, which
486 INDIAN LAW REPORTS ALLAHABAD SERIES
is the subject matter of challenge in the
present application.

4- Assailing the impugned summoning
order dated 21.04.2022, main substratum of
argument of learned counsel for the
applicants are as under:-

i-The applicants have been falsely
implicated in this case. The complaint
dated 20.09.2021 of opposite party no. 2 is
nothing but a counter-blast case against
applicants on account of F.I.R. dated
30.06.2017 lodged by applicant no. 1
against opposite party no. 2 and his family
members, order dated 11.01.2021 passed
by Family Court on an application under
Section 125 Cr.P.C. of applicant no. 1 and
to
nullify
the
enquiry
report
dated
06.01.2021 of Circle Officer Sadar, District
Mirzapur.

ii-Much emphasis has been given
by contending that the allegations levelled
against the applicants are wholly false and
based on concocted facts. The alleged
second marriage of the applicant no. 1Smriti Singh @ Mausami with Mahant
Singh @ Raghvendra Singh has been
vehemently denied.

iii-There is no act or evidence to
prove the second marriage of applicant no.
1. Referring to the contents of the
complaint dated 20.09.2021 and statements
under Section 200 and 202 Cr.P.C., it is
also argued that even there is no whisper
about the facts that as to what rites,
ceremonials, rituals, formalities, protocols,
customary
acts
and
procedure
were
performed in the alleged second marriage
of applicant no. 1.

iv-In
the
complaint
and
statements of the complainant as well as
witnesses, there is lack of 'solemnization' of
marriage and ceremony of 'Saptapadi' as
per Section 7(2) of Hindu Marriage Act.
There is no mention of the name of priest in
the complaint who recited the rites of
alleged second marriage, hence, no offence
under Section 494 and109 I.P.C. is made
out against the applicants.

v-The bald allegation of second
marriage
has
been
levelled
against
applicant no.1 without any cogent material
admissible in evidence.

vi-In
the
complaint,
the
complainant has mentioned that he has
appended the photograph of the alleged
second marriage of applicant no. 1 with
Mahant Singh @ Raghvendra Singh, but in
the said photograph bride's face is not
visible as bride's face is completely covered
with a veil, hence, it cannot be presumed
that the said photograph relates to the
second marriage of applicant no.1. It is also
pointed out that neither negative nor
certificate under Section 65B(4) of the
Indian Evidence Act has been filed by the
complainant and source of photograph has
also
not
been
mentioned
by
the
complainant in the complaint.

vii-On the strength of aforesaid
arguments, lastly it is submitted that
criminal proceeding of this case against the
applicants is nothing but a malicious
prosecution, which is abuse of process of
the Court and is liable to be quashed.
Learned counsel for the applicants in
support of his arguments placed reliance
upon the following judgments of the Apex
Court:-

(a) Bhaurao Shankar Lokhande &
Anr. vs. State of Maharashtra and Anr.,
AIR 1965 SC 1564.
12 All. Smriti Singh @ Mausami Singh & Ors. Vs. State of U.P. & Anr.
487

(b) Priya Bala Ghosh vs. Suresh
Chandra Ghosh, (1971) 1 SCC 864.

(c) Gopal Lal vs. State of
Rajasthan, (1979) 2 SCC 170

5- Learned A.G.A. appearing on
behalf of the State of U.P. submits that the
F.I.R.
dated
30.06.2017
lodged
by
applicant no. 1 was properly investigated
and the allegations against the opposite
party no. 2 and his family members were
found correct, therefore, charge-sheet dated
24.01.2018 was submitted against them. He
also submits that so far as the allegation of
bigamy
against
applicant
no.
1
is
concerned, the same was also properly
investigated by the Circle Officer Sadar,
District Mirzapur on the application of the
complainant and the said allegation of
second marriage of applicant no. 1 with
Mahant Singh @ Raghvendra Singh was
found false and accordingly, the inquiry
report dated 06.01.2023 was submitted to
Superintendent of Police, Mirzapur.

6- Learned counsel appearing on
behalf of the complainant opposed the
submissions of learned counsel for the
applicants
by
contending
that
the
witnesses
Suraj
Kumar
Rai
and
Kaushlendra Pratap Singh have seen the
second marriage of applicant no. 1 with
Mahant Singh @ Raghvendra Singh and
photograph of applicant no. 1 with
Mahant Singh @ Raghvendra Singh was
also filed along with the complaint but he
did not dispute the other factual aspect of
the matter argued on behalf of the
applicants as noted above.

7- Before entering into the matter, it
would be relevant to quote Section 494 of
I.P.C. :-

"Whoever, having a husband or
wife living, marries in any case in which
such marriage is void by reason of its
taking place during the life of such husband
or
wife,
shall
be
punished
with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.

Exception - This section does not
extend to any person whose marriage with
such husband or wife has been declared
void by a Court of competent jurisdiction,
nor to any person who contracts a
marriage during the life of a former
husband or wife, if such husband or wife, at
the time of the subsequent marriage, shall
have been continually absent from such
person for the space of seven years, and
shall not have been heard of by such
person as being alive within that time
provided the person contracting such
subsequent marriage shall, before such
marriage takes place, inform the person
with whom such marriage is contracted of
the real state of facts so far as the same are
within his or her knowledge."

8-
The
expression
'whoever......marries' mentioned in Section
494
of
I.P.C.
must
mean
'whoever.....marries
validly'
or
'whoever......marries and whose marriage is
a valid one if the marriage is not a valid
one, according to law applicable to the
parties, no question of its being void by
reason of its taking place during life of the
husband or wife of the person marrying
arises. If the marriage is not a valid
marriage, it is no marriage in the eye of
law.

9- In order to make out an offence of
bigamy under Section 494 I.P.C., following
488 INDIAN LAW REPORTS ALLAHABAD SERIES
ingredients should be established by the
prosecution.

(i) That the accused was already
married to some person; proof of actual
marriage is always necessary;

(ii) That the husband or wife to
whom the person was married as the case
may be, was alive on the date of the second
marriage and proof thereto satisfactory to
the Court must be adduced;

(iii) That the accused married
another person proof of celebration of
second marriage must be in the same
manner as that of the first; and

(iv) That the second marriage
was void by reason of its taking place
during the lifetime of the first spouse.

10- As per Section 7 of Hindu
Marriage Act, 1955, ceremonies in a hindu
marriage is explained as under:-

(1) A Hindu marriage may be
solemnized
in
accordance
with
the
customary rites and ceremonies of either
party thereto.

(2)
Where
such
rites
and
ceremonies include the saptapadi (that is,
the taking of seven steps by the bridegroom
and the bride jointly before the sacred fire),
the marriage becomes complete and
binding when the seventh step is taken.

11- Having heard the submissions of
learned counsel for the parties and perusing
the record, I find that at the initial stage
when this case was filed, this Court vide
order dated 05.09.2022 had granted three
weeks' time to the complainant/opposite
party no.2 to file counter affidavit, but no
counter affidavit has been filed by the
complainant.
I
also
find
that
the
complainant-Satyam Singh and witness
namely Kaushlendra Pratap Singh are son
and father and they are also accused in the
F.I.R.
dated
30.06.2017,
lodged
by
applicant no. 1. The witness Suraj Kumar
Rai is also relative of the complainant. The
application of the complainant with same
allegation of second marriage against the
applicant no. 1 was also investigated by the
police officials and the allegation was
found false. So far as the second marriage
of applicant no. 1 is concerned, it is well
settled that the word 'solemnize' means, in
connection with a marriage, 'to celebrate
the marriage with proper ceremonies and in
due form'. Unless the marriage is celebrated
or performed with proper ceremonies and
due form, it cannot be said to be
'solemnized'. If the marriage is not a valid
marriage, according to the law applicable to
the parties, it is not a marriage in the eyes
of law. It is also well settled that to
constitute an offence under Section 494
I.P.C., it is necessary that the second
marriage should have been celebrated with
proper ceremonies and in due form. The
'Saptapadi' ceremony under the Hindu Law
is one of the essential ingredients to
constitute a valid marriage but the said
evidence is lacking in the present case.
Even there is no averment with regard to
'Saptapadi' in the complaint as well as in
the statements under Section 200 and 202
Cr.P.C., hence, this Court is of the view
that no prima-facie offence is made out
against the applicants as the allegation of
second marriage is a bald allegation
without corroborative materials. So far as
the alleged photograph is concerned, this
Court is of the view that photograph is not
sufficient to prove the factum of marriage,
especially when the same are not proved on
record in accordance with the Evidence
12 All. Smriti Singh @ Mausami Singh & Ors. Vs. State of U.P. & Anr.
489
Act. Where marriage is disputed, it is not
enough to find that marriage took place
leaving it to be presumed that rites and
ceremonies necessary to constitute a legal
marriage were performed. In absence of
cogent evidence in this regard, it is difficult
to hold that the ' Saptapadi ceremony' of the
marriage as contended by the complainant
was performed so as to constitute a valid
marriage between the parties concerned. As
such on taking into consideration the
contents of the complaint on it's face value,
the basic ingredients to constitute an
offence under Section 494 read with
section 109 of I.P.C. are lacking, hence, no
offence is made out against the applicants.

12- Here it would be apposite to quote
some relevant judgments of the Apex
Court, which are as under:-

12.1- The Apex Court in Madhavrao
Jiwajirao
Scindia
and
others
vs.
Sambhajirao chandrojirao Angre and
others, (1988) 1 SCC 692 observed in para
7 as under :-

"The legal position is well settled
that when a prosecution at the initial stage is
asked to be quashed, the test to be applied by
the Court is as to whether the uncontroverted
allegations as made prima facie establish the
offence. It is also for the Court to take into
consideration any special features which
appear in a particular case to consider
whether it is expedient and in the interest of
justice to permit a prosecution to continue.
This is so on the basis that the Court cannot
be utilized for any oblique purpose and where
in the opinion of the Court chances of an
ultimate conviction is bleak and, therefore, no
useful purpose is likely to be served by
allowing a criminal prosecution to continue,
the
Court
may
while
taking
into
consideration the special facts of a case also
quash the proceeding even though it may be
at a preliminary stage."

12.2- The Apex Court in State of
Harayana and others vs Chaudhary Bhajan
Lal and others, 1992 SCC (Cri) 426,
considering a series of decisions has laid
down seven criteria for quashing the entire
proceedings in exercise of powers under
Section 482 Cr.P.C. by this Court, which
reads as under:-

"(a) where the allegations made in
the
First
Information
Report
or
the
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;

(b) where the allegations in the
First Information Report and other materials,
if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code;

(c) 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;

(d) where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code;

(e) where the allegations made in
the FIR or complaint are so absurd and
490 INDIAN LAW REPORTS ALLAHABAD SERIES
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the accused;

(f) where there is an express legal
bar engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party;

(g) where a criminal proceeding
is manifestly attended with malafide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

12.3- The Apex Court in the case of
Pepsi Foods Ltd. vs. Special Judicial
Magistrate, (1998) 5 SCC 749, has
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. The
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."

12.4- The Apex Court in case of
Dilawar Balu Kurane Vs. State of
Maharashtra, (2002) 2 SCC 135, has
observed that:-

"In exercising jurisdiction under
Section 227 Cr.P.C, the Judge cannot act
merely as a post office or a mouthpiece of
the prosecution but has to consider the
broad probabilities of the case, the total
effect of the evidence and the documents
produced before the court but should not
make a roving enquiry into the pros and
cons of the matter and weigh the evidence
as if he was conducting a trial."

12.5- The Apex Court in the case of
Som
Mittal
vs.
Government
of
Karnataka,(2008) 3 SCC 753, has held
that :-

"When grave miscarriage of
justice would be committed if the trial is
allowed to proceed; or where the accused
would be harassed unnecessarily if the trial
is allowed; or when prima facie it appears
to Court that the trial would likely to be
ended in acquittal. Then the inherent power
of the Court under section 482 of the Code
of Criminal Procedure can be invoked by
the High Court either to prevent abuse of
process of any Court, or otherwise To
secure the ends of justice."
12 All. Shatrughan Yadav Vs. State of U.P. & Ors.
491

12.6- The Apex Court in case of
Ravinder Singh Vs. Sukhbir Singh &
Ors, (2013) 9 SCC 245, has held as under:-

"It may be so necessary to curb
the menace of criminal prosecution as an
instrument
of
operation
of
needless
harassment. A person cannot be permitted
to unleash vendetta to harass any person
needlessly. Ex debito justitiae is inbuilt in
the inherent power of the court and the
whole idea is to do real, complete and
substantial justice for which the courts
exist. Thus, it becomes the paramount duty
of the court to protect an apparently
innocent person, not to be subjected to
prosecution on the basis of wholly
untenable complaint."

13- On the aforesaid discussion, this
Court is of the view that the criminal
proceedings against the applicants initiated
by opposite party No. 2 is nothing but a
malicious prosecution with an ulterior
motive, which is clear abuse of process of
the Court. Impugned summoning order
dated 21.04.2022 of this case is not
sustainable. This Court under the facts and
circumstances of this case, feels that it is
the solemn duty of the Court to protect
apparently an innocent person, not to be
subjected to such frivolous prosecution on
the basis of wholly untenable allegations
and complaint, if criminal proceeding is
allowed to go on, the same will tantamount
to causing grave miscarriage of justice,
therefore in order to secure the ends of
justice, the impugned criminal proceeding
against the applicants is liable to be
quashed.

14- As a fallout and consequence of
aforesaid discussion, impugned summoning
order
dated
21.04.2022
and
further
proceedings of Complaint Case No. 2513
of 2021 (Satyam Singh vs. Smriti Singh)
against the applicants are hereby quashed.

15-
Accordingly,
the
present
application under Section 482 Cr.P.C.
stands allowed.
----------
(2023) 12 ILRA 491
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.12.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Matters U/A 227 No. 3726 of 2022

Shatrughan Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akhilesh Singh, Om Nath Tiwari

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Revenue Code, 2006Section 49-matter of Survey bondobast
pending-time extension application-due to
the ripe of the crop of sugarcane, over the
land in dispute, the survey proceeding
stopped for some period of time-the
application
for
extension
of
time
prescribed in a decided writ petition is
maintainable provided the reasons are
properly explained, subject to condition
that the same would not change the
nature of the final judgment and orderthe extension of time is not amount to
reviving the proceeding for subsequent
events-In fact the court provides the
time
for
concluding
any
proceeding
either there is any provision of any
statute which provides the time period or
the probable time for concluding any
proceeding to the discretion of the Court,
if no such time prescribed by the statue.
(Para 1 to 26)