# Subhas & Ors v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-27
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 5165 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhas-ors-v-state-of-u-p-anr-44970
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure - Section 482 - Cross cases -
Investigation of subsequent case crime
number - Final report was submitted
repeatedly - Protested by complainant
wherein statement of Complainant was
got recorded under Section 200 and his
witnesses were examined under Section
202 of Cr.P.C. whereupon, impugned
summoning
order was
passed
-The
occurrence is one and common- One
case is running for offence of murder as
well as attempt to murder and this
second offence for the same occurrence
has been initiated by way of summoning,
for which apparently prima facie, there
was sufficient evidence on record and
the impugned order was passed on the
basis of it. There was no abuse of
process of Court or frustration of end of
justice.
This
Court,
in
exercise
of
inherent power under Section 482 of
Cr.P.C. is not expected to embark upon
the aspects of factual evidence, which is
a question of trial. (Para 4, 5 & 6)
4 All. Subhash & Ors. Vs. State of U.P. & Anr.
97
Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

## Text

96 INDIAN LAW REPORTS ALLAHABAD SERIES
examination of all the witnesses by the
complainant
would
not
vitiate
the
proceedings. With a view to clarify legal
position on the subject, we deem it
proper to observe that even though in
terms of the proviso to Section 202 (2),
the Magistrate is required to direct the
complainant to produce all his witnesses
and examine them on oath, failure or
inability of the complainant or omission
on his part to examine one or some of
the witnesses cited in the complaint or
whose
names
are
furnished
in
compliance with the direction issued by
the Magistrate, will not preclude the
latter from taking cognizance and
issuing process or passing committal
order if he is satisfied that there exists
sufficient ground for doing so. Such an
order passed by the Magistrate cannot be
nullified only on the ground of noncompliance with the proviso to Section
202 (2). (emphasis added)

31. Similar view has been taken in Vijay
Dhanuka Etc vs Najima Mamtaj Etc,
2014 (14) SCC 638 which has been
followed in Abhijit Pawar Vs. Hemant
Maudhukar Nimbalkar and Another,
2017 (3) SCC 528.

32. In view of above discussions, I
am clearly of the view that even though in
the complaint several persons were named
but only two persons were examined
under Section 202 Cr. P. C. and thereafter
process was issued, the procedure adopted
by Court below cannot be said to be
vitiated in law and submission to that
effect is clearly erroneous and contrary to
above discussions, hence, rejected.

33. Application has no merit.
Dismissed accordingly.

34. Interim order, if any, stands
discharged.
----------
(2019)12 ILR A96

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
5165 of 2019

Subhas & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Mahesh Prasad Yadav, Sri D.P. Singh

Counsel for the Opposite Parties:
A.G.A., Sri Vikas Tiwari

A. Criminal Law - Code of Criminal
Procedure - Section 482 - Cross cases -
Investigation of subsequent case crime
number - Final report was submitted
repeatedly - Protested by complainant
wherein statement of Complainant was
got recorded under Section 200 and his
witnesses were examined under Section
202 of Cr.P.C. whereupon, impugned
summoning
order was
passed
-The
occurrence is one and common- One
case is running for offence of murder as
well as attempt to murder and this
second offence for the same occurrence
has been initiated by way of summoning,
for which apparently prima facie, there
was sufficient evidence on record and
the impugned order was passed on the
basis of it. There was no abuse of
process of Court or frustration of end of
justice.
This
Court,
in
exercise
of
inherent power under Section 482 of
Cr.P.C. is not expected to embark upon
the aspects of factual evidence, which is
a question of trial. (Para 4, 5 & 6)
4 All. Subhash & Ors. Vs. State of U.P. & Anr.
97
Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

1. St. of A.P Vs. Gaurishetty Mahesh, JT 2010
(6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844

2. Hamida v. Rashid, (2008) 1 SCC 474

3. Monica Kumar Vs. St. of U.P, (2008) 8 SCC
781
4. Popular Muthiah Vs. State, Rep. by Insp. of
Police, (2006) 7 SCC 296

5. Dhanlakshmi Vs. R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494

6. St.of Bih. Vs. Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This application under Section
482 of Cr.P.C. has been filed by
applicants Subhas, Deewan Singh, Rahul,
Virendra Singh and Satya Kishore against
State of U.P. and Balbeer Singh, with a
prayer for quashing the summoning order
dated 24.12.2018, passed in Criminal
Complaint Case No. 305 of 2018 (Balbeer
Singh Vs. Ram Singh and others), under
Sections 147, 148, 149, 307 I.P.C., Police
Station Kotwali Auraiya, District Auraiya,
pending the court of Additional Chief
Judicial Magistrate/F.T.C., Auraiya.

2. Learned counsel for the applicants
argued that Case Crime No. 403 of 2016,
was got registered under Sections 147,
148, 149, 307, 302 of I.P.C., at Police
Station Kotwali Auraiya, District Auraiya,
on 9.6.2016 at about 22:15 hours, upon
the report of Smt. Gyanwati against
Badan Singh, Murari, Sahveer @ Sanju,
Yaduveer, Deenu and Rinku, with this
contention that informant's son Ram
Singh, aged about 25 years, along with his
nephew Ashish, aged about 15 years, was
at their way to home from market and at
about 3:30 P.M., when they reached near
Jaruhuliya ki madaiya, those named
accused
persons,
who
were
hiding
themselves thereat, came and they with
intention to kill, did assault over Ram
Singh and Ashish. This was by lathidanda. Firearm shot too, was extended,
resulting in grievous hurt to Ram Singh
and Ashish, who under threat ran from
spot for saving his life. Informant and
others rushed on spot, took injured Ram
Singh at Government Hospital, Auraiya,
from where he was referred to PGI Saifai.
At PGI Saifai, he was reported to be dead.
His dead body was lying thereat and this
report was got lodged. Subsequently, case
crime number for the same occurrence
was got registered upon the report of Sri
Balbeer Singh on 12.6.2016 at 22:00
hours, under Sections 147, 148, 149, 307
IPC, against Ram Singh, who is dead in
previously
instituted
case,
Subhas,
Deewan Singh, Rahul, Virendra Singh
and Satya Kishore, with this contention
that on same date 9.6.2016, while
informant was on his way to Auraiya and
reached near Jaruhuliya ki madaiya
tiraha,
at
about
3:20
P.M.,
two
motorcycle ridden miscreants Ram Singh
and his brother-in-law Subhas, Diwan
Singh, Rahul, Virendra Singh and Satya
Kishore did intercept. These motorcycle
riders, under joint mensrea, under threat
of death, did assault regarding their
dispute regarding field. Ram Singh caught
hold informant and Diwan Singh did
firearm shot over him, resulting its injury
over abdomen. He was severely injured.
Many persons rushed thereat wherein
Sahveer @ Sanju and Yaduveer, was
there, who took injured at Government
Hospital
Chichauli,
Auraiya.
Those
persons who were shepherd and rushed
98 INDIAN LAW REPORTS ALLAHABAD SERIES
thereat, chased assailants. This injured
was referred to Kanpur where he was
admitted in Chandni Nursing Home,
Kanpur. This report was got submitted. In
the investigation of this case crime
number, a final report was submitted. This
was referred back and for repeated times,
final report was submitted. Even opinion
of Joint Director of Prosecution was taken
wherein submission of final report was
said to be on the basis of evidence on
record. It was a material fact that at the
time of admission at Chandni Nursing
Home, injury was said to be caused by
Ram Singh, who had died and it was
never said to be caused by Diwan Singh.
Hence, this final report was protested by
complainant-informant Balbeer Singh,
wherein, statement of Balbeer Singh was
got recorded under Section 200 and his
witnesses were examined under Section
202 of Cr.P.C. Whereupon, impugned
summoning order was passed but no
discussion of reason for this summoning
was there. Because final report was
submitted, after investigation of above
case crime number, and it was based on
the evidence collected by I.O. wherein the
mention of Chandni Nursing Home, was
there that the firearm shot was given by
Ram Singh, resulting injury to Balbeer
Singh, for which he was admitted thereat
and this Ram Singh had died. But in a
mechanical way, without application of
judicial mind, impugned summoning
order was passed by Magistrate and it was
misuse of process of Court. Hence, this
proceeding under Section 482 of Cr.P.C.
for quashing impugned summoning order
with entire proceeding of above case, for
ensuring end of justice.

3. Learned AGA, as well as learned
counsel
for
the
complainant,
has
vehemently
opposed
the
argument
advanced by learned counsel for the
applicants with this contention that the
sole basis of submission of final report
was the mention at Chandni Nursing
Home. But this was not by injured
Balbeer, who is complainant in this case.
Admittedly, Balbeer Singh was having
injury over abdomen by firearm shot, for
which instant medico legal report is there
on record. Death of Ram Singh was
owing to assault made by lathi-danda, for
which explanation was given in the FIR,
got lodged by the Balbeer Singh, that it
was shepherd persons, present on spot,
who chased those assailants Ram Singh
and Ashish and who assaulted them. But
for Balbeer Singh, it was categorically
said by him that assault of firearm shot
was extended by Badan Singh wherein
Ram Singh had caught hold. This facts
was reiterated by statement of Akhilesh
Singh, under Section 202 of Cr.P.C. as
well as other witnesses, who were present
on spot and who took injured at District
Hospital Auraiya, from there to Chandni
Nursing Home, Kanpur. They all narrated
the same sequence as was said by injured
complainant and in this case he was the
best witness who has narrated the same
fact and on the basis of this evidence
collected by Magistrate, under its own
inquiry made under Section 200 and 202
of Cr.P.C., impugned summoning order
was passed, which was well founded and
the previous order of rejection of final
report, thereby, registration of complaint
case was not challenged by applicants at
any stage. This too, was a confirm order
and once Magistrate took cognizance as a
complaint case, decided to make inquiry
by itself. Then after, passed impugned
summoning order and then the basis of
summoning is the inquiry made by
Magistrate and it never requires that
previous evidence collected by I.O. For
4 All. Subhash & Ors. Vs. State of U.P. & Anr.
99
submission of final report is to be
discussed by Magistrate. Moreso, there
are repeated precedents of this Court as
well as Apex Court that at the time of
passing of summoning order application
of judicial mind is to be there but need not
be elaborate analytical discussion. Rather
a prima facie is to be seen and this was
very well there. Hence, this application be
rejected.

4. Having heard learned counsels for
both sides and gone through the material
placed on record, it is apparent that the
mention at Chandni Nursing Home, was
not by injured, rather it was said to be by
family members and had apprised that it
was firearm shot given by Ram Singh i.e.
a vague mention was there and purpose of
this mention was just to inform police for
taking criminal law in motion. it was not a
decision making mention nor it was made
by injured Balbeer. But after gaining
sense and being settled at Chandni
Nursing Home, this Balbeer got First
Information Report lodged as case crime
number wherein narration was made by
him with the same contention as was said
by him in his statement recorded under
Section 161 of Cr.P.C. as well as under
Section 200 of Cr.P.C. in inquiry made by
Magistrate. Hence, injured Balbeer Singh
complainant-informant is fully intact in
his
statement
recorded
during
investigation by I.O. in case crime
number as well as inquiry made by
Magistrate wherein, the contention of this
report as well as protest petition was fully
intact.

5. In First Information Report got
lodged by Smt. Gyanwati Devi, the
presence of two witnesses on spot was
said. She herself was not eye-witness
account and as per her statement recorded
under Section 161 of Cr.P.C., it was only
two persons present on spot when they
were assaulted by those accused persons.
They were Ram Singh and Ashish
whereas Ashish ran from spot for saving
his life. Hence, statement of Ashish was
relevant wherein, he has said about this
occurrence with this contention that none
other than accused persons and deceased
Ram Singh and injured Ashish was there.
It was upon the rescue call, many other
shepherd has rushed on spot. Hence, the
informant was not eye-witness account
and was of no avail to narrate the
occurrence. But what was heard by her,
was narrated. But, no recital regarding
injury of firearm shot over Balbeer Singh
nor Balbeer was made as an accused in it,
though, name of Badan Singh is there and
Balbeer Sigh is Balbeer Singh @ Badan
Singh. But the injured witness on record
was Balbeer Singh-complainant, who in
his statement has narrated the occurrence.
Hence, the mention made at Chandni
Nursing Home was not by Balbeer Singh.
Balbeer Singh was instantly taken to
hospital where he was having firearm
injury over his abdomen. He was instantly
taken to Chandni Nursing Home. The
occurrence is one and common. One case
is running for offence of murder as well
as attempt to murder and this second
offence for the same occurrence has been
initiated by way of summoning as above,
for which apparently prima facie, there
was sufficient evidence on record and the
impugned order was passed on the basis
of it, there was no abuse of process of
Court or frustration of end of justice. This
Court, in exercise of inherent power under
Section 482 of Cr.P.C., is not expected to
embark upon the aspects of factual
evidence, which is a question of trial.
Apex Court in State of Andhra Pradesh
v. Gaurishetty Mahesh, JT 2010 (6) SC
100 INDIAN LAW REPORTS ALLAHABAD SERIES
588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844
has
propounded
that
"While
exercising jurisdiction under section 482
of the Code, the High Court would not
ordinarily embark upon an enquiry
whether the evidence in question is
reliable or not or 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".

6. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded
as above. Hence, this application merits is
dismissal.

7. Accordingly, dismissed.

8. Interim order, if any, stands
vacated.

9. However, in view of the entirety
of facts and circumstances of the case, it
is directed that in case the applicants
appear and surrender before the court
below within 30 days and no more from
today and apply for bail, their prayer for
bail shall be considered and decided in
view of the settled law laid by this Court
in the case of Amrawati and another Vs.
State of U.P. reported in 2004 (57) ALR
290 as well as judgement passed by
4 All. Dr. M.C. Sharma Vs. Central Bureau of Investigation
101
Hon'ble Supreme Court reported in 2009
(3) ADJ 322 (SC) Lal Kamlendra
Pratap Singh Vs. State of U.P. Till then
no coercive measures shall be taken
against the applicants.

10. With the aforesaid directions,
this application is finally disposed of.
----------

(2019)12 ILR A101

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
7234 of 2019
connected with
 Crl. Misc. Application (U/S 482 Cr. P.C.) No.
7220 of 2019

Dr. M.C. Sharma ...Applicant
Versus
Central Bureau of Investigation
 ...Opposite Party

Counsel for the Applicant:
Priyanka Midha, Sri Ram M. Kaushik, Sri
Tanveer Ahmad

Counsel for the Opposite Party:
Sri Gyan Praksh, Sri Sanjay Kumar Yadav
A. Criminal Law - Code of Criminal
Procedure, 1973 - Discharge - Any error
in the charge framed by the trial Court
can be amended and altered at any stage
of the trial considering prosecution
evidence led during the course of the
trial- It would not be proper for this
Court to interfere in the present 482
Cr.P.C. application as the allegations
made in the FIR and the evidence
collected
during
the
course
of
investigation by the C.B.I. against the
applicant, the prosecution has to be
given full opportunity to prove its case
by
adducing
evidence
against
the
applicant and co-accused persons- A
prima facie case would naturally depend
upon the facts of each case and it is
difficult to lay down role of universal
application where material placed before
the Court discloses grave suspicion
against the accused which has not been
properly explained, the Court would be
fully justified in framing charge and
proceeding with the trial.

For
applicant
Smt.
Aparna
Saxena-Not
disputed by CBI that she is the wife of coaccused and sleeping director - No evidence
against the applicant Smt. Aparna Saxena
collected during the course of investigation
showing that she conspired with her husband
along with other co-accused putting the State
Exchequer to a loss. The case of the applicant
Smt. Aparna Saxena is squarely covered by
paragraph nos.11 and 12 of the judgement of
Shreya Jha Vs. CBI, ILR (2007) Supp. (2) Delhi
19.

Application u/s 482 of Cr.Pc of Dr.
M.C.Sharma rejected.

Criminal Application u/s 482 Cr.Pc of
Smt. Aparna Saxena allowed. (E-3)

List of cases cited: -

1. U.O.I Vs. Prafulla Kumar Samal & Anr,
(1979) 3 SCC 4,

2. Yogesh Vs. St.of Maha. (2008) 3 SCC 394,

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

4. C.B.I, Hyderabad Vs. K.Narayana Rao
(2012) 9 SCC 512

5. Naresh Vs. St. of U. P (2012) 1 All LJ 202.

6. T. Baray Vs. Nenry A.H. Hoe- (1983) 1 SCC
177
7. Nemi Chand Vs. St. of Raj.-11(2016) CCR
15 (SC), MANU/SC/0506/2016

8. Ratan Lal Vs. St. of Punj.-AIR (1965) SC
444