# Smt. Malti Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2019) 2 ILRA 644
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** U/S 482/378/407 No. 7313 of 2019
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-malti-singh-v-state-of-u-p-anr-opp-parties-44721
- **Pages:** 10

## Headnote

A. Criminal Law Amendment Act, 1908 -
Section 7 - Quashing of Charge-sheet and
Summoning Order - On the basis of
allegations prima facie case made out-
Alibi-is a matter of evidence-Impermissible
to consider defence of accused at this
stage- Criminal Procedure Code, 1973Purpose of coercive processes- to procure
the attendance of accused before the
Court in trial-Issuance of process like
summons then bailable warrant or nonbailable warrant as and when required
under
the
alternating
circumstances
before the court is not punitive-Interest of
Justice and Bonafides-Requirement of
balance-Application
for
bail
by
the
applicant to be considered on the same
day
by
the
court
concerned.
(Para
12,14,18,21,22,23,25,26,34 & 35)

The allegations in the FIR are disclosing the
commission of offence as the allegations made
therein on being taken on their face value as
correct, in their entirety, the allegations do not
seem impossible or improbable. Defences
cannot be looked into at this stage and the
Court has to see into the FIR allegations and
the materials placed before the Court in the
chargesheet only. The question whether the
accused-applicant was present in the assembly
or not is of evidence which can be seen only in
the trial.

In the present case when accused are alleged,
blocking the national highway obstructing the
movement of passengers on the road by using
criminal
force
making
inflammatory,
derogatory and abusing speeches, causing
apprehension in the mind of people, are
undoubtedly fulfilling the ingredients of such
offence with which the accused persons are
slapped.

Making prima facie findings by this Court as to
the correctness, falsity of allegations in the FIR
or the materials included in the chargesheet
would be premature at this stage. It is
sufficient to see that whether the FIR
allegations along with the materials placed on
record are fulfilling the ingredients of the
offence alleged against the accused. There is
no prima facie case as to the quashing of FIR
found in the application, therefore, it deserves
to be rejected.

It is clear that after chargesheet, summoning
was made first by the Court and ultimately
after the lapse of eight years, presently nonbailable warrant is running against the
accused-applicant.Therefore, there is no skip
in the procedure and no abuse of process on
the part of complainant or the Court reflecting
from the application. In view of the procedure
provisioned in Criminal Procedure Code, 1973
to procure the attendance of accused before
the Court in proceeding of trial the issuance of
process like summons then bailable warrant or
non-bailable warrant as and when required
under the alternating circumstances before the
court is not punitive.

Simply by reason of defaulting the process of
the Court issued to procure her appearance in
the trial her arrest can cause irreparable loss
to her present reputation.

Interest of justice t

## Text

644 INDIAN LAW REPORTS ALLAHABAD SERIES
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".

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".

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

9. In view of what has been
discussed above, this Application, being
devoid of merits, stands dismissed.
----------

(2019)10ILR A 644

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE

THE HON'BLE VIKAS KUNVAR
SRIVASTAV, J.

U/S 482/378/407 No. 7313 of 2019

Smt. Malti Singh ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Jai Narayan Singh, Lav Singh, Vishal
Singh

Counsel for the Opposite Parties:
G.A.
2 All. Smt. Malti Singh Vs State of U.P. & Anr.
645
A. Criminal Law Amendment Act, 1908 -
Section 7 - Quashing of Charge-sheet and
Summoning Order - On the basis of
allegations prima facie case made out-
Alibi-is a matter of evidence-Impermissible
to consider defence of accused at this
stage- Criminal Procedure Code, 1973Purpose of coercive processes- to procure
the attendance of accused before the
Court in trial-Issuance of process like
summons then bailable warrant or nonbailable warrant as and when required
under
the
alternating
circumstances
before the court is not punitive-Interest of
Justice and Bonafides-Requirement of
balance-Application
for
bail
by
the
applicant to be considered on the same
day
by
the
court
concerned.
(Para
12,14,18,21,22,23,25,26,34 & 35)

The allegations in the FIR are disclosing the
commission of offence as the allegations made
therein on being taken on their face value as
correct, in their entirety, the allegations do not
seem impossible or improbable. Defences
cannot be looked into at this stage and the
Court has to see into the FIR allegations and
the materials placed before the Court in the
chargesheet only. The question whether the
accused-applicant was present in the assembly
or not is of evidence which can be seen only in
the trial.

In the present case when accused are alleged,
blocking the national highway obstructing the
movement of passengers on the road by using
criminal
force
making
inflammatory,
derogatory and abusing speeches, causing
apprehension in the mind of people, are
undoubtedly fulfilling the ingredients of such
offence with which the accused persons are
slapped.

Making prima facie findings by this Court as to
the correctness, falsity of allegations in the FIR
or the materials included in the chargesheet
would be premature at this stage. It is
sufficient to see that whether the FIR
allegations along with the materials placed on
record are fulfilling the ingredients of the
offence alleged against the accused. There is
no prima facie case as to the quashing of FIR
found in the application, therefore, it deserves
to be rejected.

It is clear that after chargesheet, summoning
was made first by the Court and ultimately
after the lapse of eight years, presently nonbailable warrant is running against the
accused-applicant.Therefore, there is no skip
in the procedure and no abuse of process on
the part of complainant or the Court reflecting
from the application. In view of the procedure
provisioned in Criminal Procedure Code, 1973
to procure the attendance of accused before
the Court in proceeding of trial the issuance of
process like summons then bailable warrant or
non-bailable warrant as and when required
under the alternating circumstances before the
court is not punitive.

Simply by reason of defaulting the process of
the Court issued to procure her appearance in
the trial her arrest can cause irreparable loss
to her present reputation.

Interest of justice to make balance between the
apprehension of the feared applicant from the
non-bailable warrant running against her with
regard to irreparable loss of her reputation and in
convenience of her presence being lady of 68
years old age and the proceeding of a legitimate
trial running against her.

7. The accused-applicant to appear and apply
for bail, the Court concerned is to entertain
the same, if possible, on the same date
keeping in mind that the accused-applicant is
a 68 years old lady and is willing to participate
in the proceedings. Application under Section
482 Cr.P.C. disposed of accordingly.

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

Case law relied upon/discussed: -

1. Inder Mohan Goswami Vs St. of U.K.
(2007)12 SCC 1
2. Ramchandran Vs St. of Ker. reported in AIR
(2011) SCC 3581
3. Mahesh Chaudhary Vs St. of Raj. & anr.
(2009) 4 SCC 439
4. Kamaladevi Agarwal Vs St. of W.B. & ors.
646 INDIAN LAW REPORTS ALLAHABAD SERIES
[(2002) 1 SCC 555]
5. St. of Har. & ors. Vs Bhajan Lal & ors.
reported in MANU/SC/0012/1992
6. Joginder Kumar Vs St. of U.P. (1994) 4SCC
260
7. Amravati Vs St. of U.P. reported in (2005)
CRLJ 755 (Allahabad)
8. Lal Kamlendra Pratap Singh Vs St. of U.P. &
anr. reported in 2009 (3) ADJ 322
(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The application in hand is moved
under section 482 of Criminal procedure
code,1973 by learned counsel on behalf of
applicant-accused involved in case crime
no.1147 registered under Sections 147,
149, 341, 332, 352, 336, 506 of IPC and
Section 7 of Criminal Law Amendment
Act in Police Station Gazipur, District
Lucknow. The applicant seeks following
reliefs-

"To quash/set aside the chargesheet
submitted by police after investigation
and
the
order
dated
22.07.2011
summoning the accused in the case."

2. Heard the learned counsel for the
applicant and the Learned AGA appearing
on behalf of the state opposite parties.
Perused the materials available on record.

3. Learned counsel has moved this
application with grounds for the relief of
quashing the chargesheet no.125 of
20111,
submitted
by
police
after
investigation of case crime no.1147 of
2008 under Sections 147, 149, 341, 332,
352, 336, 506 of IPC and Section 7 of
Criminal Law Amendment Act. The
grounds as pleased are:-

"First information report was lodged by
the Station Officer of Police Station Gazipur,
District Lucknow dated 01.10.2008 reporting
the incident that an Ex-MLA, 'Rajendra
Singh Yadav' alongwith corporator, 'Smt.
Malti Singh' and companions, more than two
hundred in number, blocked the national
highway near Surendra Nagar turning and
thus obstructed the traffic. They were raising
slogans using inflammatory and filthy words
against government and the administration,
they were delivering inflammatory speeches.
When they were requested to remove the
blockade from the road for the sake of public
convenience, irritated thereby they jointly
assaulted and made the police party,
threatened and began to pelt the bricks and
stones."

4. Learned counsel in the above
context submits that the MLA and the
corporator are members of well reputed
family and elected representative of
public. They individually have not used
any filthy or derogatory word. Since at the
time of incident the applicant was in
power being leader of ruling party, in her
connivance the police falsely implicated
her.

5. Learned counsel further submits
that none of the offence under Sections
147, 149, 341, 334, 352, 336, 506 of IPC
and
Section
7
of
Criminal
Law
Amendment Act is made out from the
allegations in F.I.R. then also the
Investigating Officer, under the pressure
of leaders of the ruling party, submitted
the chargesheet without any materials to
support
the
constitution
of
offence
thereunder.

6. Before entering into merit of the
present application under Section 482
Cr.P.C., it would be relevant to keep into
2 All. Smt. Malti Singh Vs State of U.P. & Anr.
647
mind the scope and ambit of the said
section and circumstances under which
the extra ordinary power of the court
inherent therein can be exercised. It is
explained in a plethora of judgements of
the Honorable the Apex Court. One of
those judgements is, Inder Mohan
Goswami v. State of Uttaranchal
(2007)12 SCC 1, para 23 is quoted here
under:

"This court in a number of cases has
laid down the scope and ambit of courts
powers under section 482 Cr.P.C. Every
High Court has inherent power to act ex
debito justitiae to do real and substantial
justice, for the administration of which
alone it exists, or to prevent abuse of the
process of the court. Inherent power
under section 482 Cr.P.C. can be
exercised:

(i) to give effect to an order under the
Code;

(ii) to prevent abuse of the process of
court, and

(iii) to otherwise secure the ends of
justice."

7. In the light of materials placed on
record as well as ingredients of the
concerned Sections of IPC and Criminal
Law
Amendment
Act
wherein
the
applicant is charged, Sections 147 and
149 from the offence falling under
Chapter VIII of the IPC relate to, "offence
against the tranquility", Section 146 of the
IPC defines the 'rioting', ingredients to
constitute offence are given under Section
146 IPC. It is constituted, when force or
violence is used by an unlawful assembly
or by any member thereof, in prosecution
of the criminal object of such assembly,
every member of such assembly is guilty
of the offence of rioting.

8. Section 147 of the IPC provides
punishment
of
imprisonment
of
description for a term which may extend
to two years or with fine or with both, the
offence is cognizable and bailable.

9. Section 149 of the IPC is relating to
common object wherein every member of
unlawful assembly is guilty of offence
committed in prosecution of common object.

10. "Unlawful Assembly" is
defined in Chapter VIII of IPC in Section
141 as an assembly of five or more
persons and is designated "Unlawful
Assembly." If the common object of the
persons comprising the assembly is:

"(First) -- To overawe by criminal
force, or show of criminal force, 1[the
Central or any State Government or
Parliament or the Legislature of any
State], or any public servant in the
exercise of the lawful power of such
public servant; or

(Second) -- To resist the execution of
any law, or of any legal process; or

(Third) -- To commit any mischief or
criminal trespass, or other offence; or

(Fourth) -- By means of criminal
force, or show of criminal force, to any
person, to take or obtain possession of
any property, or to deprive any person of
the enjoyment of a right of way, or of the
use of water or other incorporeal right of
which he is in possession or enjoyment, or
to enforce any right or supposed right; or

(Fifth) -- By means of criminal force,
or show of criminal force, to compel any
person to do what he is not legally bound
to do, or to omit to do what he is legally
entitled to do. Explanation.--An assembly
which
was
not
unlawful
when
it
assembled, may subsequently become an
unlawful assembly."
648 INDIAN LAW REPORTS ALLAHABAD SERIES

11. To determine the existence of
common object, the Court is required to
see the circumstances in which the
incident had taken place and conduct of
the members of unlawful assembly
including the weapon of offence though
carried or used on the spot. This can be
find out from circumstances and facts
proved in trial on the basis of legally
adduced evidence.

12. Further, in the case of
Ramchandran Vs. State of Kerala
reported in AIR (2011) SCC 3581, it is
alleged that common object may be
formed in spur of the moment. "Prior
concern in the sense of meeting of
unlawful assembly of members is not
necessary" whether or not the common
object of the unlawful assembly was
possessed by him or her at the time of
incident is immaterial. The question
whether
the
accused-applicant
was
present in the assembly or not is of
evidence which can be seen only in the
trial.

13. Further, Section 341 of the IPC
falls in Chapter XVI, "offence effecting
the human body". One of such offence is
'wrongful restraint', defined under Section
339 of IPC, when a person voluntarily
obstructs another person so as to prevent
that person from proceeding in any
direction in which that person has have a
right to proceed, is said to wrongfully
restrain that person. Section 341 is
punishment for wrongful restraint.

14. In the present matter, it is
alleged in the FIR that national highway
was blocked by the accused-applicant
alongwith the accused MLA and their
companions more than two hundred in
person. The public at large were stood
obstructed on the highway, restrained to
move on the road in the direction where
they were proceeding and had right to
proceed. As such these allegations even if
their face value taken in their entirety,
they constitute fulfilling their ingredients.

15. Section 332 and Section 336 of
IPC are also the offence "affecting the
human body" and relate with the offence
of hurt. Both the above offences are
related to voluntarily causing hurt to
detect public servant from his duty and at
endangering life or personal safety of
others respectively.

16. In the present case, the
allegation is to the effect that the police
officials when forbidden and requested
the unlawful assembly to remove the
blockade and let the public free to move
on the road, they became irritated and
began to attack the police party throwing
bricks and stones upon them. They were
making slogans in absurd and derogatory
words thus offence of Section 506 of IPC
is slapped thereon.

17. So far as Section 352 of IPC is
concerned, it falls within Chapter XVI,
"offence affecting the life". Criminal
force is defined in Section 350 of the IPC.
It
is
constituted
when
a
person
intentionally uses force without that
person's consent in order to commit any
offence or intending by the use of such
force to cause, or nothing it to be likely
that by the use of such force he will cause
injury, fear or annoyance to the person to
whom the force is used, is said to use
criminal force to others. Further, assault is
defined under Section 351 of IPC and this
offence is constituted when a person
makes any gesture, or any preparation
intending or nothing it to be likely the
2 All. Smt. Malti Singh Vs State of U.P. & Anr.
649
such gesture or preparation will cause any
person to apprehend that he who makes
gesture or makes the preparation is about
to use criminal force to that person.
Section 352 of IPC is the punishment for
assault or criminal force otherwise on
grave provocation.

18. In the present case when accused
are alleged, blocking the national highway
obstructing the movement of passengers on
the road by using criminal force making
inflammatory,
derogatory
and
abusing
speeches, causing apprehension in the mind
of people, are undoubtedly fulfilling the
ingredients of such offence with which the
accused persons are slapped. Further, on
being forbidden by the police personnel
having been requested to remove the
blockade, the unlawful assembly led by the
applicant attacked the police party, began
stone pelting and throwing bricks on the
police party are reported in unambiguous
explicit words in the first information report.

19. Hon'ble the Supreme Court in
Mahesh
Chaudhary
Vs.
State
of
Rajasthan and Another reported in
(2009) 4 SCC 439 in para 11, 12, 14 and
17 has held as under:

"11. The principle providing for
exercise of the power by a High Court
under Section 482 of the Code of
Criminal Procedure to quash a criminal
proceeding is well known. The court shall
ordinarily exercise the said jurisdiction,
inter alia, in the event the allegations
contained in the FIR or the Complaint
Petition even if on face value are taken to
be correct in their entirety, does not
disclose commission of an offence.

12. It is also well settled that save
and
except
very
exceptional
circumstances, the court would not look
to any document relied upon by the
accused in support of his defence.
Although allegations contained in the
complaint petition may disclose a civil
dispute, the same by itself may not be a
ground
to
hold
that
the
criminal
proceedings should not be allowed to
continue. For the purpose of exercising its
jurisdiction, the superior courts are also
required to consider as to whether the
allegations made in the FIR or Complaint
Petition fulfill the ingredients of the
offences alleged against the accused.

14. While saying so, we are not
unmindful of the limitations of the court's
power under Section 482 of the Code of
Criminal Procedure which is primarily
for one either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice. The court at
that stage would not embark upon
appreciation of evidence. The Court shall
moreover consider the materials on
record as a whole.

In Kamaladevi Agarwal vs. State of
W.B. & ors. [(2002) 1 SCC 555], this
Court opined:

"7. This Court has consistently held
that the revisional or inherent powers of
quashing the proceedings at the initial
stage should be exercised sparingly and
only where the allegations made in the
complaint or the FIR, even if taken it at
the face value and accepted in entirety, do
not prima facie disclose the commission
of an offence. Disputed and controversial
facts cannot be made the basis for the
exercise of the jurisdiction."

It was furthermore observed that the
High Court should be slow in interfering
with the proceedings at the initial stage
and that merely because the nature of the
dispute is primarily of a civil nature, the
criminal prosecution cannot be quashed
because in cases of forgery and fraud
650 INDIAN LAW REPORTS ALLAHABAD SERIES
there would always be some element of
civil nature.
17. The charge-sheet, in our opinion, prima
facie discloses commission of offences. A fair
investigation was carried out by the
Investigating Officer. The charge-sheet is a
detailed one. If an order of cognizance has
been passed relying on or on the basis
thereof by the learned Magistrate, in our
opinion, no exception thereto can be taken.
We, therefore, do not find any legal infirmity
in the impugned orders. We, however, must
place on record that before us Mr. Dhankar
stated that the appellant is ready and willing
to get the disputes and differences between
the parties settled.

20. As such power under Section
482 Cr.P.C. is to be exercised to prevent
abuse of process of Court or to secure
ends of justice as repeatedly have been
held and guided by the Hon'ble the Apex
Court in present case where the relief of
chargesheet on the basis of facts and
materials placed before the Court and
discussed hereinabove, relief of quashing
the chargesheet is sought.

21. Here the allegations in the FIR
under Sections 147, 149, 341, 332, 352,
336, 506 of IPC and Section 7 of Criminal
Law Amendment Act in Police Station
Gazipur, District Lucknow are disclosing
the commission of offence as the
allegations made therein on being taken
on their face value as correct, in their
entity the allegations do not seem
impossible
or
improbable.
Further,
Hon'ble the Apex Court held that while
considering the materials placed before
the Court for quashing the chargesheet
should
not
to
embark
upon
the
appreciation of evidence, and should
consider only materials on record as a
whole.

22. In the present case, the allegations
in the FIR and materials placed before the
Court as collected by the Investigating
Officer in chargesheet submitted before the
Magistrate are fulfilling the ingredients of
the offence alleged against the accused. So
far as the defences as to the malafide of
leaders of ruling party, connivance with the
police of such leaders for false implication
or to be gathered from the evidence legally
adduced before the Court during trial. Such
defences can not be looked into at this stage
and the Court has to see into the FIR
allegations and the materials placed before
the Court in the chargesheet only.

23. Making prima facie findings by
this Court as to the correctness, falsity of
allegations in the FIR or the materials
included in the chargesheet would be
premature, at this stage. It is sufficient to
see that whether the FIR allegations
alongwith with the materials placed on
record are fulfilling the ingredients of the
offence alleged against the accused.

24. In the case of State of Haryana
and Ors. Vs. Bhajan Lal and Ors.
reported in MANU/SC/0012/1992, the
following seven guidelines are given:

"(1) 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.

(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR 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.
2 All. Smt. Malti Singh Vs State of U.P. & Anr.
651

(3)
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.

(4) 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.

(5) Where the allegations made in the
FIR or complaint are so absurd and
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.

(6) 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.

(7) Where a criminal proceeding is
manifestly attended with mala fide 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."

25. In view of the aforesaid
guidelines of Hon'be Supreme Court, it is
clear from the materials placed before the
Court in the application that there is no
prima facie case to interfere in the lower
court's proceeding or to quash the
chargesheet after such long lapse of time
of eight years or to set aside the nonbailable warrant running against the
accused-applicant. The purpose of Section
482 Cr.P.C. and the power given therein
is not to exercise the same for stifling the
bonafide proceeding of the Court unless
some abuse of process is sufficiently
shown. The power is to be used sparingly.

26. There is no prima facie case as
to the quashing of FIR found in the
application, therefore, it deserves to be
rejected.

27. Since in criminal proceeding
submission of charge sheet by the
Investigating Officer, the Court takes
cognizance of offence on the basis of
material placed in chargesheet. Thereafter
it issues summon. In the present case,
admittedly it is issued. If the summons are
avoided then issuance of bailable warrant
and ultimately when that is too avoided,
non-bailable warrant is issued. If nonbailable warrant is also defied then the
procedure under Sections 82 and 83
Cr.P.C is to be started. From the
allegation made in the application, it is
clear that after chargesheet, summoning
was made first by the Court and
ultimately after the lapse of eight years,
presently non-bailable warrant is running
against the accused-applicant. Therefore,
there is no skip in the procedure and no
abuse
of
process
on
the part
of
complainant or the Court reflecting from
the application.

28. In view of the procedure
provisioned in Criminal Procedure Code,
1973 to procure the attendance of accused
before the Court in proceeding of trial the
issuance of process like summons then
bailable warrant or non-bailable warrant
as
and
when
required
under
the
652 INDIAN LAW REPORTS ALLAHABAD SERIES
alternating circumstances before the court
is not punitive. The case on the part of
court is not to skip the proceeding
prescribed for issuing them. In the present
case such skipping of proceeding is
neither pleaded nor shown by the
materials on record.

29. However, hearing the learned
counsel for the parties, it becomes
apparently clear that the applicant is
afraid of process against her however the
purpose of the process is only to ensure
the presence before the Court for the
participation in the trial.

30. Learned counsel conceded that
the accused-applicant would like to
participate if her personal liberty is
secured. If it is so then it is bonafide on
the part of accused-applicant to have
intent of participating in the proceeding. It
is just and proper to secure the liberty of
the accused-applicant keeping in view her
bonafide intention.

In Kamaladevi Agarwal vs. State of
W.B. & ors. [(2002) 1 SCC 555], this
Court opined:

18. In that view of the matter and
keeping in view the peculiar facts and
circumstances of this case and with a
view to do complete justice to the parties,
we, in exercise of our jurisdiction under
Article 142 of the Constitution of India,
direct that in the event the appellant
appears before the learned Magistrate
within a period of four weeks from date
and files an application for grant of bail,
he shall be released on bail on such terms
and conditions as the learned Magistrate
may seem fit and proper. In the event, the
appellant
files
an
application
for
exemption from his personal appearance,
the same may also be considered on its
own merits. It would be open to the
complainant to consider the offer of the
appellant."

31. Further, this is important to refer
here that in case of Joginder Kumar Vs.
State of UP (1994) 4SCC 260, it is held
that arrest is not a must when FIR is
lodged in a cognizable offence. Further,
Hon'ble the Apex Court held that arrest of
person can cause irreparable loss to the
person's reputation.

32. In the application, the applicant
has averred the status of applicant as 68
years old lady of political carrier,
therefore, simply by reason of defaulting
the process of the Court issued to procure
her appearance in the trial her arrest can
cause irreparable loss to her present
reputation.

 33. Keeping in view in the full bench
decision
of
Hon'ble
High
Court,
Allahabad in Amravati Vs. State of UP
reported
in
(2005)
CRLJ
755
(Allahabad)
approved
by
Hon'ble
Supreme Court (Supra) in Joginder
Kumar Vs. State of UP and Anothers
reported in 1994 AIR 1349 held that the
Court if it deems fit in the facts and
circumstances of the case, may grant
interim bail pending final decision of the
bail applications though in the present
case, Section 438 Cr.P.C. is made
applicable in the State of UP also but so
far as the principles propounded in the
case of Amravati (Supra) by the full
Bench of our own High Court as
approved by Hon'ble Supreme Court in
the case of Lal Kamlendra Pratap Singh
Vs. State of U.P and Anothers reported
in 2009 (3) ADJ 322 are fully applicable
in the circumstances and facts of the case
in hand where the non-bailable warrant
2 All. Jai Narain Tiwari Vs U.O.I. & Ors.
653
for the reason of skipping the process
issued to procure the presence of
applicant in trial running against her.

34. This would be in the interest of
justice to make balance between the
apprehension of the feared applicant from
the non-bailable warrant running against
her with regard to irreparable loss of her
reputation and in convenience of her
presence being lady of 68 years old age
and the proceeding of a legitimate trial
running against her by issuing certain
directions in exercise of power under
Section 482 Cr.P.C. as follows.

35. In view of the aforesaid
observation, the accused-applicant if
appears within three weeks from the date
of order and applies for bail, the Court
concerned is directed to entertain the
same promptly as soon as practicable, if
possible, on the same date keeping in
mind that the accused-applicant is a 68
years old lady and she is willing to
participate in proceeding, moreover, the
purpose of issuance of process is only to
ensure the participation in the trial, the
same be disposed of.

36. Till the aforesaid three weeks or
till the applicant appears/surrenders and
applies for bail on non-bailable warrant
running against the accused-applicant, no
coercive action shall be taken pursuant to
the non-bailable warrant.

37. Accordingly the application
under Section 482 Cr.P.C. is disposed of.
----------

(2019)10ILR A 653

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.09.2019
BEFORE

THE HON'BLE PANKAJ BHATIA, J.

U/S 482/378/407 No. 4553 of 2019

Jai Narain Tiwari ...Applicant
Versus
U.O.I. & Ors. ...Opp. Parties

Counsel for the Applicant:
Bal Keshwar Srivastava, Jai Prakash Narain

Counsel for the Opposite Parties:
Shiv P. Shukla

A. Railway Property (Unlawful Possession)
Act, 1966 - Section 3 - Essential that the
allegations of theft of Railway property or
dishonest
misappropriation
should
be
alleged to prosecute anyone under Section
3 of the Act - Only averment against the
applicant is that he was the Supervisor and
was negligent - No case made out for
prosecuting the applicant under Section 3
of the Act. (Para 5,6,7,12,13 & 14)

It is essential that the allegations of theft of
Railway property or dishonest misappropriation
should be alleged to prosecute anyone under
Section 3 of the ''Act, 1966'. Even in the
allegations levelled in the complaint, there is
no averment or whisper with regard to any
theft or misappropriation of any Railway
property as against the applicant. The only
allegation is that the applicant being a
Supervisor was negligent in supervising. It is
clear that the negligence will not constitute an
offence which can be tried under Section 3 of
the ''Act, 1966'.

On the basis of law laid down by the Apex
Court as well as the plain reading of the
complaint, no case is made out for prosecuting
the applicant under Section 3 of the ''Act,
1966'. The learned Magistrate has further
erred in summoning the accused without any
application of mind.

The proceedings in Criminal Case under
Section 3 of Railway Property (Unlawful