# Smt. Dhanrawati Devi & Ors v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1453
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Application U/S 482 No. 738 of 2020
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dhanrawati-devi-ors-v-state-of-u-p-anr-45511
- **Pages:** 6

## Headnote

A. Criminal Law-Indian Penal CodeSections 323, 504, 506, 354, 147 - Appeal
against conviction.

In the present case detail cognizance order as
well as summoning order is passed by the
learned Magistrate with judicial application of
mind as the same reflects that the learned
Magistrate has applied his mind to material
available on record and materials are sufficient
to
proceed
against
the
applicants.
The
cognizable order is not a proforma order, every
aspect is touched by the learned Magistrate
and applicants failed to adduce any evidence
which caused prejudice to them so cognizance
order is perfectly valid and there is no occasion
to quash the same.(Para 21)

From the perusal of the material on record and
looking into the facts of the case at this stage it
cannot be said that no offence is made out
against the applicants. (Para 22)

Application u/s 482 disposed of. (Para 25)

List of cases cited:-

## Text

2 All. Smt. Dhanrawati Devi & Ors. Vs. State of U.P. & Anr.
1453
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 yet
another judgment, in the case of 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 the case of
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".

13. Regarding prevention of abuse of
process of Court, Apex Court, in the case of
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
the case of 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".

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

15. One thing is also to be noted that it
was a State case, wherein chargesheet was
filed, whereas, application for discharge was
moved, under Section 245 (2) of Cr.P.C, which
is under Chapter XV of Code of Criminal
Procedure, 1973, i.e., pertaining to complain
cases. Thus, on this score, too, Application for
discharge ought to have been rejected, but, the
Trial
court
considered
Application
for
discharge on the merit and not on took a
technical view and on merit, too, Discharge
Application was rejected.

16. Accordingly, there was no abuse of
process of law.

17. In view of what has been discussed
above, this Application, under Section 482 of
Cr.P.C., merits dismissal and it stands
dismissed accordingly.
----------
(2020)02ILR A1453

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 738 of 2020

Smt. Dhanrawati Devi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Narendra Deo Shukla, Sri Pankaj
Kumar Tiwari
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law-Indian Penal CodeSections 323, 504, 506, 354, 147 - Appeal
against conviction.

In the present case detail cognizance order as
well as summoning order is passed by the
learned Magistrate with judicial application of
mind as the same reflects that the learned
Magistrate has applied his mind to material
available on record and materials are sufficient
to
proceed
against
the
applicants.
The
cognizable order is not a proforma order, every
aspect is touched by the learned Magistrate
and applicants failed to adduce any evidence
which caused prejudice to them so cognizance
order is perfectly valid and there is no occasion
to quash the same.(Para 21)

From the perusal of the material on record and
looking into the facts of the case at this stage it
cannot be said that no offence is made out
against the applicants. (Para 22)

Application u/s 482 disposed of. (Para 25)

List of cases cited:-

1. Fakhruddin Ahmad Vs. St. of Uttranchal
[2008 (17) SCC 157]

2. Akash Garg Vs. St. of U.P. [2011 (11) ADJ
849],

3. Kanchan Vs. St. of U.P. (Application u/s 482
Cr.P.C. No. 45044 of 2019) ,

4. Mukund Lal Verma and another Vs. State of
U.P. and another (Application u/s 482 Cr.P.C.
No. 2307 of 2003),

5. R.P. Kapur Vs. St. of Punj., A.I.R. 1960 S.C.
866,

6. St. of Har. Vs. Bhajan Lal, 1992 SCC (Cr.)
426,

7. St. of Bihar Vs. P.P. Sharma, 1992 SCC (Cr.)
192

8. Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005 SCC
(Cr.) 283.

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Vakalatnama filed today by Sri
Rajesh Kumar Pandey Advocate on behalf
of the informant, is taken on record.

2. This application has been filed by
the applicants to quash the chargesheet
dated 29.10.2019 being criminal case No.
119 of 2019 (State of U.P. Vs. Prashant
Tiwari and others) under Sections 323,
504, 506, 354, 147 IPC, P.S. Sujanganj,
District Jaunpur, arising out of case crime
No. 115 of 2019 and also to quash the
cognizance as well as summoning order
dated 18.11.2019 passed by Judicial
Magistrate-Ist, Jaunpur.

3. Heard learned counsel for the
applicants,
learned
counsel
for
the
informant and the learned AGA.

4. Learned counsel for the applicants
submitted
that
the
learned
Judicial
Magistrate
passed
the
impugned
cognizance as well as summoning order on
18.11.2019 without application of mind.
Thus, the order dated 18.11.2019 is
unreasoned,
unspecific,
illegal
and
arbitrary and, thus, not sustainable in the
eye of law. Learned trial court passed the
order in very mechanical manner and in a
routine
way
without
discussion
of
allegation contained in the FIR and
statement under Section 161 Cr.P.C. of the
prosecution
witness.
Hence,
the
cognizance order passed by the Magistrate
is an abuse of the process of the Court so
cognizance order, is likely to be quashed.
2 All. Smt. Dhanrawati Devi & Ors. Vs. State of U.P. & Anr.
1455

5. Learned counsel for the applicants
submitted that no offence at all under
sections 323, 504, 506, 354, 147 IPC is
made out against the applicants and the
statement under Section 164 Cr.P.C. of the
opposite party No. 2 is inherently,
improbable and absolutely false and
fabricated. In fact, she has not received
any injury in the alleged occurrence but
she has alleged that she was beaten by the
applicants and further submitted that there
is no any direct or indirect evidence and no
any documentary evidence with regard to
objectionable photograph of the opposite
party No. 2 and others to support the
prosecution version. It is further submitted
that the husband of the opposite party N. 2,
namely, Vivek Kumar Tiwari is a
practising
Advocate
in
Civil
Court,
Jaunpur and police official of the P.S.
Sujanganj are under influence of him. On
the influence of the husband of PW-2
Sujanganj Police registered the false and
frivolous cases against the applicant.
Further submits that the applicant used to
live in Bombay to earn his livelihood and
opposite party No. 2 and her husband lives
in village and want to grab entire movable
and immovable property of the applicants
and further submitted that there is also
civil dispute between applicant-side and
opposite party No. 2-side. On account of
civil dispute, the relation between both the
parties are restrained and shower and on
account of these reasons, impugned FIR
has been lodged only for harassment of the
applicants. On this ground learned counsel
for the applicants submitted that charge
sheet against the applicants is false and
frivolous and vexatious so the charge sheet
submitted by the Investigating Officer, is
liable to be quashed.

6. First of all, I considered whether
the cognizance order is passed by the
Magistrate is liable to be quashed or not in
this regard learned counsel for the
applicants
submitted
that
learned
Magistrate passed the cognizance order
without application of his mind.

7. Learned counsel for the petitioner
relied upon paragraph Nos. 14 and 15 of
the judgement of the Apex Court in the
case of Fakhruddin Ahmad Vs. State of
Uttranchal decided on 5th September,
2008 reported in [2008 (17) SCC 157]
which are quoted below:-

"14.From
the
afore-noted
judicial pronouncements, it is clear that
being an expression of indefinite import, it
is neither practicable nor desirable to
precisely define as to what is meant by
`taking
cognizance'.
Whether
the
Magistrate
has
or
has
not
taken
cognizance of the offence will depend upon
the circumstances of the particular case,
including the mode in which the case is
sought to be instituted and the nature of
the preliminary action.

15.Nevertheless, it is well settled
that before a Magistrate can be said to
have taken cognizance of an offence, it is
imperative that he must have taken notice
of the accusations and applied his mind to
the allegations made in the complaint or in
the police report or the information
received from a source other than a police
report, as the case may be, and the
material filed therewith. It needs little
emphasis that it is only when the
Magistrate applies his mind and is
satisfied that the allegations, if proved,
would constitute an offence and decides to
initiate proceedings against the alleged
offender, that it can be positively stated
that he has taken cognizance of the
offence. Cognizance is in regard to the
offence and not the offender."
1456 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned counsel for the applicant
also relied upon paragaraph Nos. 6 and
12 of the judgement passed by Hon'ble
Allahabad High Court in the case of
Akash Garg Vs. State of U.P. reported in
[2011 (11) ADJ 849].

"6. It is well settled that the
Magistrate is not bound by the conclusion
of the Investigating Officer. He is
competent under law to form his own
independent opinion on the basis of the
materials
collected
during
the
investigation. The Magistrate may or may
not agree with the conclusion of the
Investigating Officer. If the Investigating
Officer submits charge sheet, in that
eventuality the Magistrate may differ from
the charge sheet and refuse to take
cognizance by holding that no case is
made out. In a case where the final report
is submitted the Magistrate may on
perusal of the materials placed in support
of the final report opine that the
conclusion of the Investigating Officer is
not correct and the offence is made out. In
that eventuality, the Magistrate may reject
the final report and take cognizance of the
offence.

12. It is also well settled that at
the stage of taking cognizance of an
offence, the Magistrate is not required to
examine
thoroughly
the
merits
and
demerits of the case and to record a final
verdict. At that stage he is not required to
record even reasons, as expression of
reasons in support of the cognizance may
result in causing prejudice to the rights of
the parties (complainant or accused) and
may also in due course result in
prejudicing the trial. However, the order
of the Magistrate must reflect that he has
applied his mind to the facts of the case. In
other words at the stage of taking
cognizance what is required from the
Magistrate is to apply his mind to the facts
of the case including the evidence
collected during the investigation and to
see whether or not there is sufficient
ground (prima facie case) to proceed with
the case. The law does not require the
Magistrate to record reasons for taking
cognizance of an offence."

9. The present case need to be
examined in the light of the aforesaid
settled principal given by Hon'ble Apex
Court as well as another cases cited by
the learned counsel for the applicants
namely, Kanchan Vs. State of U.P.
(Application u/s 482 Cr.P.C. No. 45044
of 2019) and Mukund Lal Verma and
another Vs. State of U.P. and another
(Application u/s 482 Cr.P.C. No. 2307
of 2003).

10. What is meant by 'taking
cognizance' in regard to an offence by a
competent Magistrate is not defined or
described in the Code of Criminal
Procedure, 1973 (Cr.P.C.) or any other
act. However the term has acquired a
definite connotation through well settled
judicial pronouncements.

11. The term 'taking cognizance'
actually means 'become aware of', but in
reference to a Court or a Judge, it means
'to take notice of judicially'. The term has
no mystic significance in criminal law. In
practice 'taking cognizance' means taking
notice of an offence for initation of
proceedings under Section 190 Cr.P.C.

12. 'Cognizance' refers to the point
when the court first takes judicial notice of
an offence by not only applying its mind to
the contents of the complaint/police report,
but also proceeding further as provided
further in Chapter XIV of the Cr.P.C.
2 All. Smt. Dhanrawati Devi & Ors. Vs. State of U.P. & Anr.
1457

13. Taking cognizance includes
either taking steps to see whether there is
basis for initiating a judicial proceeding or
initiating a judicial proceeding against an
offender by the Magistrate.

14. Ordinarily, a citizen can initiate
criminal proceedings against an offence by
two means. He may either lodge an FIR
before the Police Officer (Station House
Officer) if the offence is a cognizable one,
or he may lodge complaint before a
competent Judicial Magistrate irrespective
of whether the offence is cognizable or
non-cognizable. Any Magistrate of the
first class and the duly empowered second
class Magistrate may take cognizance of
any offence for further proceedings.

15. As per Section 190(1) an
empowered
Magistrate
may
take
cognizance of any offence-

a). Upon receiving a complaint
of facts which constitute such an offence.

b). Upon a police report of
such facts.

c). Upon information received
from any person other than a police
officer, or upon his own knowledge, that
such an offence has been committed."

16. Thus the cognizance is taken
when the Magistrate applies his judicial
mind to the facts mentioned in a complaint
or to a police report or upon information
received from any person regarding an
offence.

17. The issuance of process by the court
occurs at a subsequent stage duly after
considering the materials placed before it. It
happens when the Magistrate decides to
proceed against the offender whom a prima
facie case is clearly made out. Taking
cognizance of an offence is not equivalent to
issuance of process: issuance of process takes
place only after taking cognizance of the
offence. When a Magistrate applies his mind
for issue of process, he must be held to have
taken cognizance of the offences the complaint
put forth.

18. The cognizance and summoning
order passed by learned Magistrate dated
18.11.2019 is read as under:-

"न्ययाययालय
जज0एम
0
प्रिम
जजौनपपुर , अ 0सस0 115/19, मपु 0नस0 119
स्टजट बनयाम प्रियान्त ततवयारर ियानया सपुजयान
गसज, तकिनयासक 18.11.19- आज आररोप पत्र
प्रयाि हहआ। सम्बनन्धधधत प्रकरण मम तववजचक
ियारया
वयाकि
तववजचनया
अतकभयपुक्तगण
प्रियासत ततवयारर उरर जिम , मनरोज कपु मयार
ततवयारर , प्रमरोकि कपु मयार ततवयारर , सन्तरोि
कपु मयार किपुबज कज तवरुद्ध अन्तगरत न्धियारया
147, 323, 504, 506, 354 आई 0पर 0सर 0 व
अतकभयपुक्तया न्धिनरयावतर किजवर कज तवरुद्ध
अन्तगरत न्धियारया 147, 323, 504, 506 आई 0पर
0सर 0 मम आररोप पत्र प्रस्तपुत तकयया गयया।
ममनज समस्त पपुललस प्रपत्रत्रोों कया सम्यक
पररिरलन तकयया। अतकभयक्तपु गण उपयरक्तपु
कज तवरुद्ध उपररोक्त न्धियारयाओस मम अपरयान्धि
कया प्रससजयान ललयज जयानज कया आन्धियार
पययारि हहै। तकिनपुसयार प्रससजयान ललयया
जयातया हहै। किजर रलजस्टर हरो। अतकभयपुक्तगण
17.12.19 कज जररयज सिन तलब हरो। "

19. So all the case laws relied by the
learned counsel for the applicants, are not
applicable in the present case.

20.

At
the
stage
of
taking
congnizance, Magistrate can simply form
an opinion as to whether the case is fit for
taking and committing the matter for trial
or not. In this present case, learned trial
court clearly express his opinion that he
perused all the records and clearly
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
indicated that the material placed before
him are sufficient to proceed with the case.

21. In the present case detail
cognizance order as well as summoning
order is passed by the learned Magistrate
with judicial application of mind as the
same reflects that the learned Magistrate
has applied his mind to material available
on record and materials are sufficient to
proceed
against
the
applicants.
The
cognizable order is not a proforma order,
every aspect is touched by the learned
Magistrate and applicants failed to adduce
any evidence which caused prejudice to
them so cognizance order is perfectly valid
and there is no occasion to quash the same.

22. From the perusal of the material
on record and looking into the facts of the
case at this stage it cannot be said that no
offence is made out against the applicants.
All the submission made at the bar relates
to the disputed question of fact, which
cannot be adjudicated upon by this Court
in exercise of power conferred under
Section 482 Cr.P.C. At this stage only
prima facie case is to be seen in the light
of the law laid down by Supreme Court in
cases of R.P. Kapur Vs. State of Punjab,
A.I.R. 1960 S.C. 866, State of Haryana
Vs. Bhajan Lal, 1992 SCC (Cr.) 426,
State of Bihar Vs. P.P.Sharma, 1992 SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of
the accused cannot be considered at this
stage. Moreover, the applicants have got a
right of discharge according to the
provisions prescribed in Cr.P.C. as the
case may be through a proper application
for the said purpose and he is free to take
all the submissions in the said discharge
application before the Trial Court.

23. The prayer for quashing the
cognizance order as well as summoning
order and charge sheet hereby refused.

24. However, it is provided that if the
applicants appear and surrender before the
court below within 15 days from today and
apply for bail, then the bail application of the
applicant
be
considered
and
decided
expeditiously in view of the settled law laid
by Hon'ble Supreme Court. For a period of
15 days from today or till the disposal of the
application for grant of bail whichever is
earlier, 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.

25. With the aforesaid directions, this
application is finally disposed of.
----------
(2020)02ILR A1458

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 1329 of 2020

Alok Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Manish
Tiwary,
Sri
Syed
Imran
Ibrahim, Sri Manas Bhargava

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

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 190(1)(b) -
Protest petition allowed on basis of affidavits
filed by witnesses which are extraneous to the