# Sohan @ Radheshyam Ram & Anr v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Criminal Misc. Application U/S 482 No. 11244 of 2022
- **Bench:** Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohan-radheshyam-ram-anr-v-state-of-u-p-anr-48753
- **Pages:** 3

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Scope of
interference - Abuse of process of law -
Charge-sheet - Quashing of - Noncognizable offence u/s 323 & 504 IPC -
Proceeding as the St. case - Permissibility
- Held, instead of treating as complaint,
cognizance
has
been
taken
by
the
Magistrate as the St. case, which is not
permissible under law - High Court found
the case as a fit case to exercise the
inherent power for being abuse of process
of law. (Para 7 and 8)
Application allowed. (E-1)
List of Cases cited:-
254 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

8 All. Sohan @ Radheshyam Ram & Anr. Vs. State of U.P. & Anr.
253

(3) where the discretion exercised
by the Magistrate in issuing process is
capricious and arbitrary having been based
either on no evidence or on materials
which
are
wholly
irrelevant
or
inadmissible; and

(4) where the complaint suffers
from fundamental legal defects, such as,
want of sanction, or absence of a complaint
by legally competent authority and the like.

The cases mentioned by us are
purely illustrative and provide sufficient
guidelines to indicate contingencies where
the High Court can quash proceedings."

10. It is, therefore, manifestly
clear that proceedings against an accused
in the initial stages can be quashed only if
on the face of the complaint or the papers
accompanying the same, no offence is
constituted. In other words, the test is that
taking the allegations and the complaint
as they are, without adding or subtracting
anything, if no offence is made out then
the High Court will be justified in
quashing the proceedings in exercise of its
powers under Section 482 of the present
Code. (emphasis supplied)

17. It is not in dispute that the
impugned
summoning
order
dated
01.07.2022 has come to be passed
against the applicant. The proceeding of
Complaint Case No.58823 of 2022 is at
initial stage. At this stage, the learned
Magistrate has to be satisfied whether
there is sufficient ground for proceeding
and not whether there is sufficient
ground for conviction. Moreover, the
impugned order dated 01.07.2022 being
revisable, the statutory remedy of filing
a criminal revision is available to the
applicant. Therefore, to invoke the
jurisdiction of this Court under Section
482 Cr.P.C., at this initial stage by
circumventing the statutory remedy of
filing criminal revision against the
impugned order, appears by itself to be
abuse of process of this Court by the
applicant.

18. In view of aforesaid discussion,
the instant application under Section 482
Cr.P.C. filed by the applicant lacks merit,
which is accordingly dismissed.
----------
(2022) 8 ILRA 253
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Misc. Application U/S 482 No. 11244 of
2022

Sohan @ Radheshyam Ram & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Pushkar Kushwaha

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 482 - Scope of
interference - Abuse of process of law -
Charge-sheet - Quashing of - Noncognizable offence u/s 323 & 504 IPC -
Proceeding as the St. case - Permissibility
- Held, instead of treating as complaint,
cognizance
has
been
taken
by
the
Magistrate as the St. case, which is not
permissible under law - High Court found
the case as a fit case to exercise the
inherent power for being abuse of process
of law. (Para 7 and 8)
Application allowed. (E-1)
List of Cases cited:-
254 INDIAN LAW REPORTS ALLAHABAD SERIES
1. U.O.I. Vs Prakash P. Hinduja & anr.; AIR
2003 SC 2612
(Delivered by Hon'ble Om Prakash
Tripathi, J.)

1. Heard learned counsel for the
applicants, learned A.G.A for the State and
also perused the record.

2. This application under Section 482
Cr.P.C. has been filed by the applicants
with a prayer to quash the charge sheet
dated
12.09.2019
and
cognizance
&
summoning order dated 07.11.2019 as well
as entire proceedings of Case No.2282 of
2019 (State vs. Sohan @ Radheyshyam
Ram and others) arising out of NCR
No.156 of 2018, under Sections 323, 504
IPC,
Police
Station
Baburi,
District
Chandauli, pending in the Court of Judicial
Magistrate, Chakiya, District Chandauli.

3. Brief facts which are requisite to be
stated for adjudication of this application
are that complainant Santosh Kumar had
moved a written complaint on 25.10.2018
before SO, Baburi, Chandauli with the
allegations that on 25.10.2018 at about
05:00-06:00 pm, when the complainant was
going towards his field, the accused
persons Chandan and Sohan came and
stopped the complainant and started using
filthy language against him, when the
complainant objected to do the same, they
started beating him by stick, kick and fist.
When the sister of the complainant, Gaytri
tried to save, then all the accused persons
also beaten her due to which she has also
sustained injuries. On this application,
NCR No.156 of 2018, under Section 323 &
504 IPC has been registered and after
taking
permission
for
investigation,
Investigating
Officer
recorded
the
statement of the injured witnesses and
submitted charge sheet no. NIL of 2019 in
NCR No.156 of 2018 against the applicants
under Sections 323, 504 IPC. On chargesheet, Magistrate has taken cognizance on
07.11.2019 and issued summons to the
applicants.

4. Feeling aggrieved, this application
has been moved before this Court.

5. It is submitted by learned counsel
for the applicants that matter relates to noncognizance offence only and in such
matters cognizance by the Magistrate
should not be taken. The case should be
treated as a complaint case, it should not be
treated as a State case. The impugned order
of the court below is an abuse of process of
law and the same is liable to be quashed by
this Court. Section 2-D Cr.P.C. lays down
that :

"complaint" means any allegation
made orally or in writing to a Magistrate,
with a view to his taking action under the
Code, that some person, whether known or
unknown, has committed an offence, but
does not include a police report.

Explanation: A report made by a
police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police officer by
whom such report is made shall be deemed
to be the complainant.

6. The scope and ambit of power
under section 482 Cr.P.C. has been
examined by Hon'ble Apex Court in Union
of India vs. Prakash P. Hinduja and
another, AIR 2003 SC 2612 and observed
as follows:

"The grounds on which power
under Section 482 Cr.P.C. can be exercised
to quash the criminal proceedings basically
8 All. Shivam Singh Vs. State of U.P. & Anr.
255
are (1) where the allegations made in the
FIR or 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 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, (3) where there is an express legal
bar engrafted in any of the provisions of
Code of Criminal Procedure or the
concerned Act to the institution and
continuance of the proceedings. But this
power has to be exercised in a rare case and
with great circumspection".

7. On perusal of material brought on
record, it transpires that charge sheet
submitted by the IO under Sections 323 &
504 IPC only with regard to noncognizable case. Instead of treating as
complaint, cognizance has been taken by
the Magistrate as State case, which is not
permissible
under
law.
Although,
Magistrate has not specifically mentioned
in the impugned order that the case should
be proceeded under which manner State or
complaint, but in absence of such specific
mention on the charge sheet, it may be
presumed that the case shall be proceeded
as State case, which is not permissible
under law.

8. In view of above discussion,
application has substance and is liable to be
allowed in part. This is a fit case in which
inherent power should be exercised and
there appears abuse of process of law.
Application under Section 482 Cr.P.C. is
allowed in part and impugned order dated
07.11.2019 by which, the cognizance was
taken is hereby quashed with a direction to
proceed with the matter as complaint case.
The Magistrate shall proceed with the
matter as complaint case as laid down in
Explanation of Section-2(d) Cr.P.C. Rest
prayer is refused.

9. It is made clear that in such
situation, statement of the complainant
under Section 200 and 202 Cr.P.C. is not
required. No need to pass separate
cognizance/summoning order but learned
Magistrate should specify that said charge
sheet shall be proceeded like a complaint
case. Such principle is applicable in all
cases relating to non-cognizance cases.

10. The Registrar General is directed
to circulate this order throughout the State
for effective compliance by all concerned.
----------
(2022) 8 ILRA 255
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Application U/S 482 No. 19621 of
2021

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

Counsel for the Applicant:
Sri Jata Shankar Pandey

Counsel for the Opposite Parties:
G.A., Sri Ashish Pandey

A.
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Sections 52 (1) &
63 - Vehicle seized during commission of
crime - Release of vehicle sought for -
Remedy - Held, proper remedy available is
to move application u/s 63 of N.D.P.S. Act
before the trial court - The applicant