# Sukhveer Singh & Ors v. The State of U.P. & Anr. 62 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 3 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** U/S 482/378/407 No. 7336 of 2019
- **Bench:** Vikas Kuvar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukhveer-singh-ors-v-the-state-of-u-p-anr-62-indian-law-reports-allahabad-series-44870
- **Pages:** 10

## Headnote

Law-Criminal
Procedure
Code,
1973
-Section
190
Cr.P.C.-
Cognizance - Defence of the accused-
Involvement of the person and not of his
innocence or any version in defence of
the accused is not to be seen.

At that stage, the application of judicial mind
is confined to the allegations in the complaint
or those averred in the FIR and to the material
collected by the investigating officer as
submitted along with the charge sheet, that
the offence alleged has been committed -
Defence of the accused-At the stage of
cognizance, court is concerned with the
involvement of the person and not of his
innocence therefore any version in defence of
the accused is not to be seen. (Para
10,11,19,22)

B.
Criminal
Law-Criminal
Procedure
Code,
1973
-Section
190
Cr.P.C.-
Cognizance - Plea of Collusion - is a
defence against the accusation made. It
can be proved by adducing cogent and
material evidence at the Trial, but not at
the stage of cognizance. (Para 12,13,14)

C.
Criminal
Law-Criminal
Procedure
Code, 1973 -Section 190 r/w Sections
173 and 204 Cr.P.C.- Summoning Order-
Accused not to be heard. No violation of
the principles of natural justice.

There is no provision to grant any opportunity
of hearing to the accused at the precognizance stage, under the Cr.P.C - Section
173 Cr.P.C. does not require to provide a copy
of the charge sheet to the accused, prior to
the application of mind by the Magistrate to
take judicial notice of the materials available in
the charge-sheet - Issuance of Summoning
order - Virtually amounts to providing an
opportunity to the accused to appear before
the court so as to enable him to put his
defence
against
the
allegations
in
complaint/FIR and the charge-sheet submitted
by the police. No prima facie case is made out
with regard to abuse of process on the part of
informant or the police. (Para 17,18,21,25,32)

Application u/s 482 Cr,Pc rejected (E-3)

List of Cases cited :-

## Text

3 All. Sukhveer Singh & Ors. Vs. The State of U.P.& Anr.
61
would be justified in preventing injustice
by invoking inherent powers in absence of
specific provisions in the statute."

17. Hon'ble Apex Court has further
in State of Haryana & Ors. Vs. Bhajan
Lal & Ors. reported in 1992 Supp (1)
SCC
335
illustrated
certain
circumstances, wherein such power can
be used and now repeatedly the said
illustrations
are
relied
in
various
judgment of Hon'ble Apex Court and
those are treated as guidelines and reads
as under:-

"102.(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 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;

(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."

18. On the basis of above discussion
from the material placed on record of the
case no prima facie case is made out for
relief of quashing the charge-sheet and
summoning order against the accused,
hence, application is liable to be rejected.

Accordingly,
application
is
dismissed as rejected.
----------
(2019)11ILR A61

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR SRIVASTAVA , J.

U/S 482/378/407 No. 7336 of 2019

Sukhveer Singh & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties
62 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicants:
Sri Mohmmad Aslam Beg

Counsel for the Opposite Parties:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,
1973
-Section
190
Cr.P.C.-
Cognizance - Defence of the accused-
Involvement of the person and not of his
innocence or any version in defence of
the accused is not to be seen.

At that stage, the application of judicial mind
is confined to the allegations in the complaint
or those averred in the FIR and to the material
collected by the investigating officer as
submitted along with the charge sheet, that
the offence alleged has been committed -
Defence of the accused-At the stage of
cognizance, court is concerned with the
involvement of the person and not of his
innocence therefore any version in defence of
the accused is not to be seen. (Para
10,11,19,22)

B.
Criminal
Law-Criminal
Procedure
Code,
1973
-Section
190
Cr.P.C.-
Cognizance - Plea of Collusion - is a
defence against the accusation made. It
can be proved by adducing cogent and
material evidence at the Trial, but not at
the stage of cognizance. (Para 12,13,14)

C.
Criminal
Law-Criminal
Procedure
Code, 1973 -Section 190 r/w Sections
173 and 204 Cr.P.C.- Summoning Order-
Accused not to be heard. No violation of
the principles of natural justice.

There is no provision to grant any opportunity
of hearing to the accused at the precognizance stage, under the Cr.P.C - Section
173 Cr.P.C. does not require to provide a copy
of the charge sheet to the accused, prior to
the application of mind by the Magistrate to
take judicial notice of the materials available in
the charge-sheet - Issuance of Summoning
order - Virtually amounts to providing an
opportunity to the accused to appear before
the court so as to enable him to put his
defence
against
the
allegations
in
complaint/FIR and the charge-sheet submitted
by the police. No prima facie case is made out
with regard to abuse of process on the part of
informant or the police. (Para 17,18,21,25,32)

Application u/s 482 Cr,Pc rejected (E-3)

List of Cases cited :-

1. Inder Mohan Goswami Vs St. of U.P., (2012)
SCC 1

2. Sanjay Singh Ram Rao Chavan Vs Dattatray
Gulab Rao Phalke, (2015) 3 SCC 126

3. Md. Alauddin Khan Vs St. of Bih & ors. AIR
(2019) SC 1910

4. Devendra Prasad Singh Vs St. of Bih & ors.
,(2019) 4 SCC 351

5. St. of Har. & ors. Vs Bhajan Lal & ors. AIR
(1992) SC 604

6. Umesh Kumar Vs St. of A. P, AIR (2014) SC
1106
(Delivered by Hon'ble Vikas Kuvar
Srivastava, J. )

1. The application in hand is moved
under section 482 of Criminal procedure
code,
1973
by
learned
counsel
Sri
Mohammad Aslam Beg on behalf of
applicants accused involved in Case crime
no.867/2016 under Sections 147, 323 I.P.C. &
Section 3(1)(10) SC/ST Act, Police Station -
Kakori, District Lucknow. The applicant
seeks relief, praying to,

"quash impugned summoning order
dated 17.01.2017, and charge sheet
dated 06.12.2016 bearing charge sheet
No.90 of 2016 in S.T No.22 of 2017 case
crime No.867 of 2016 Under Section 147,
323 IPC and Section 3(1)(X) SC/ST Act
Police Station Kakori District Lucknow
State of U.P. Versus Sukhveer Singh and
others passed by Special Judge (SC/ST
3 All. Sukhveer Singh & Ors. Vs. The State of U.P.& Anr.
63
Act)
District-Lucknow
contained
in
Annexure No.1 and 2 to this petition
respectively."

2. Briefly stating, the prosecution
story as revealed from the FIR is that the
informants, Chandrika, Jitendra, Mahesh,
Chandrani and Kiran belonging to the
class
of
people
falling
under
the
scheduled castes allege that an old Naala
(water channel) was passing nearby their
agricultural field becomes blocked while
making the Agra Expressway.

3. The fact of obstruction in the
water channel was complained by the
informants to the higher officials. After
the local inspection on the direction of
officers, the Nala was dig open and
obstruction
in
flow of
water
was
removed. After two days angered there by
Sukhveer Singh (present applicant), Ram
Singh and Rajkumar, Shivbaran, Alok,
Satish Kumar Singh came along with
their companions and began to ran beat
the informant in their field and made
them badly injured.

4. 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.

5. The scope and circumstances for
exercising the extraordinary power by the
court under Section 482 Cr.P.C. is
explained in para 23 and 24 of judgment
of Hon'ble Apex Court in the case of
Inder Mohan Goswami Vs. State of U.P.
reported in 2012 SCC 1, which reads as
under:-

"23. 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.

24.
Inherent
powers
under
section 482 Cr.P.C. though wide have to
be exercised sparingly, carefully and with
great caution and only when such
exercise
is
justified
by
the
tests
specifically laid down in this section
itself. Authority of the court exists for the
advancement of justice. If any abuse of
the process leading to injustice is brought
to the notice of the court, then the Court
would be justified in preventing injustice
by invoking inherent powers in absence of
specific provisions in the statute."

6. The grounds set forth in
application, upon which the relief to
quash the charge-sheet and summoning
order issued by Magistrate as pleaded by
the applicants are:-

(a)
because
impugned
summoning order dated 17.01.2017 is
illegal and arbitrary and against provision
of law.

(b)
because
impugned
summoning
order
dated
17.01.2017
64 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by learned court below is not only
against provisions of law but also against
the principle of natural justice.

(c) Because on 17.01.2017
learned court below passed summoning
order in illegal and arbitrary manner
without
considering
facts
and
circumstances of the case and without
considering evidence on record.

(d)
because
police
with
collusion of the opposite party no.2
submitted
charge
sheet
against
the
petitioners without collecting any material
and evidence, in case crime No.867 of
2016 under Section 147, 323 IPC and
Section 3(1)(10) SC/ST Act, Police
Station Kakori, District Lucknow.

7. The offences are registered on the
basis of allegations made in the FIR
against the applicant under Sections 147
and 323 I.P.C. along with Section 3(1)(X)
SC/ST
Act
(as
applicable
after
amendment with effect from 26.1.2016)
on bare reading of the aforesaid section of
the Scheduled Casts & Scheduled Tribes
(Prevention of Atrocities) Act provides
that, "whoever not being the member of
SC/ST castes corrupts or fouls the water
of any spring reservoir or any other
source ordinarily used by members of
scheduled caste and schedule tribes SC or
ST so as to render it less fit for the
purpose of which it is ordinarily used.
From the allegations in the FIR, it is very
clear that the allegations made therein if
on face value they are taken to be true in
their
intracity,
they
disclose
the
commission of offence from which the
accused applicant is slapped.

8. This is pertinent to mention here
that charge sheet after due investigation
has been filed in the court, the court has
taken
cognizance
and
consequent
thereupon
issued
summons
to
the
applicant accused vide order dated
17.1.2017.

9. T he first issue with regard to the
relief as prayed under Section 482 Cr.P.C. to
quash the charge sheet and summoning
order, is whether they are illegal, being
arbitrary and against provisions of Law. On
bare reading of the allegations made in the
FIR the allegations of maar-peet having been
beaten up by the accused applicant who are
members of upper caste with victim
(informants) belonging to a caste falling
under Scheduled Caste are sufficient to
constitute the offence prima facie, as the
applicant accused jointly attacked with lathi,
danda in their field, annoyed by their success
in getting the obstruction in the watter
channel's flow removed.

10. From the materials placed before
the Court it is sufficiently clear that the
charge sheet submitted after investigation by
the Investigating Officer in aforesaid
provisions before the Court and the court has
taken cognizance of the offences labelled
therein against the accused persons. Law
requires the magistrate while when charge
sheet is submitted before the court it has to
satisfy itself, from the allegations in FIR and
the evidence collected by the Investigating
Officer during investigation, the allegations
in FIR and evidence supporting the
allegation are fulfilling the ingredients of the
offences slapped against the accused. On the
basis of those he has reason to believe that
accused might have commited such offences
triable by the court.

11. After its prima facie satisfaction,
the court proceeds further and when the
court intends to proceed further for trial
3 All. Sukhveer Singh & Ors. Vs. The State of U.P.& Anr.
65
of the accused as to the commission of
offence, this is called 'cognizance' taken
by the court of the offences. Consequent
thereupon the court issue summons to the
applicant accused for trial.

12. In putting the case that it attracts
the exercise of the extra ordinary power
under section 482 Cr.P.C. for the reason
of abuse of the process by the informant
and the police, the investigating officer is
alleged to have been in collusion with the
informants. It is further alleged that the
Investigation officer, without collecting
material evidences he submitted the
charge sheet, falsely implicating the
applicant and other accused persons.
Though the vehemence of argument is
upon non collection of evidence by the
police during investigation but the learned
counsel could neither carved out from the
materials placed on record by him nor
from the contents of charge sheet, which
evidence apart from the evidence of
injured witnesses in an incident of beating
is needed. Materials with regard to
injuries sustained by them is available in
charge sheet. Facts of obstruction in the
flow of water channel complained to the
high
officials
and
police
officers,
redressal of the grievance by the officers
by removing the obstruction to restore the
water channel to the field and ultimately
annoyed thereby incident of beating to the
informants by the accused, all are placed
in charge sheet with supporting evidence.
The police during investigation has to be
collect material which it found sufficient
to emanate them to believe that if they
even on their face value if taken without
proof, prima facie sufficient to believe
that accused has committed the offence
from which he is charged in the First
Information Report. In support of the
ground assailing the validity and legality
of the charge-sheet the applicant has
neither pleaded nor argued carving out
from the materials on record, the
illustration as to the irregularity or
illegality if any committed by the
investigating officer, due to which the
charge sheet would become illegal
document.

13. Another ground pleaded to hold
the illegality of charge-sheet is the alleged
'collusion'. 'Collusion' literally means and
is said to be a "secret argument especially
to do something dishonest" in order to
deceive or cheat some one else. The plea
of Collusion is a defence against the
offence, the accused is charged with and
it can be proved adducing cogent and
material evidence in trial.

14. Apart the bald statement of the
fact of Collusion it is also not explained
in pleading how it can be inferred from
the attending circumstances that the
charge sheet is arbitrary and illegally filed
due to collision with informant. In
absence of pleading to this effect it
seemed to have been alleged loosely
without any substance.

15. Seeking the relief of quashing of
the summoning order dated 17.1.2019,
applicant has assailed the 'cognizance' of
the offences taken by the court on
perusual of charge-sheet blaming that it is
against provisions of law and principle of
natural justice, therefore is illegal and
arbitrary. Though, 'the law', which is said
to be violated in taking cognizance is
neither pleaded nor referred in the
argument.

16. The next challenge to the
cognizance of offence dated 17.1.2019 is
that the order of summoning to the
66 INDIAN LAW REPORTS ALLAHABAD SERIES
accused is violative of 'principal of
natural justice'. Impliedly by referring the
principal of natural justice the applicant
accused opposes the summoning order on
the ground that prior to issuance of
summons he is not given opportunity to
be heard. This seems to be suffering from
a misconception of law. The Code of
Criminal Procedure prescribes that after
due investigation without committing any
unnecessary delay, investigating officer is
to submit report before the court under
Section 173 before the court competent to
take cognizance of the offence on a police
report stating there in-

(a) the names of the parties;

(b)
the
nature
of
the
information;

(c) the names of the persons
who appear to be acquainted with the
circumstances of the case;

(d) whether any offence appears
to have been committed and, if so, by
whom;

(e) whether the accused has
been arrested;

(f) whether he has been released
on his bond and, if so, weather with or
without sureties;

(g)
whether
he
has
been
forwarded in custody under section 170.

(ii) The officer shall also
communicate, In such manner as may be
prescribed by the State Government, the
action taken by him, to the person, if any,
by whom the information relating to the
commission of the offence was first
given."

17. The manner and procedure
prescribed for submission of charge-sheet
before the court under Section 173
Cr.P.C. does not requires to provide copy
of the charge sheet to the accused, prior to
the application of mind by the magistrate
to take judicial notice of the materials
available in the charge-sheet whether or
not there are reason to believe on the
basis their of that any offence is
committed by the accused. This is
established
principle
of
law
and
procedure

18. The law is settled by the courts
from time and against that no violence
can be done with the language of the
provisions of procedural law, either by
subtracting any word included by the
legislative body in the statute nor to add
any word which does not exist in the
provision. Therefore question of violation
of principle of natural justice on the
ground that prior to issuance of summon
or taking cognizance of offence the
accused was not heard, does not stand
before the law as prescribed there in the
criminal procedure code.

19. It would not be out of context to
have a discussion upon the word
'Cognizance'. The word 'cognizance' is
not defined anywhere in the code.
Virtually taking cognizance does not
involve any formal action of any kind. It
occurs as soon as the magistrate applies
his mind to the suspected commission of
an
offence.
It
is
prior
to
the
commencement of preceding and is an
indispensable requisite for holding a valid
trial. Cognizance is taken of an offence
and not of an accused. Section 190 of the
Cr.P.C. provides about the application of
judicial mind to the allegations in the
complaints or those averred in the FIR
3 All. Sukhveer Singh & Ors. Vs. The State of U.P.& Anr.
67
and materials collected by investigating
officer submitted in the charge sheet that
offence
is
constituted.
In
Taking
cognizance
the
magistrate
considers
wheather there is sufficient ground for
proceeding further for trial. Therefore
cognizance is a consideration over the
fact running into the mind of magistrate
so as to form opinion within a spur of
moment to proceed further for trial.

20. Hon'ble Supreme Court has
explained the word 'cognizance' in the
case of Sanjay Singh Ram Rao Chavan
Vs Dattatray Gulab Rao Phalke reported
in (2015) 3 SCC 126, the relevant portion
is quoted hereunder:-

"The expression ''cognizance'
has not been defined in the code. But the
word ''cognizance' is of indefinite import.
It has no esoteric or mystic significance
in criminal law. It merely means ''become
aware of' and when used with reference
to a court or a Judge, it connotes ''to take
notice of judicially."

21. So far as the issuance of
summoning order dated is concerned,
virtually this amounts, providing an
opportunity to the accused to appear
before the court so as to enable him to put
his defence against the allegations in
complaint/FIR
and
the
charge-sheet
submitted by the police. If there is
sufficient grounds for proceeding on the
chargesheet/complaint then the magistrate
can issued a process under section 204
Cr.P.C.
pusuant
to
taking
such
cognizance.

22. The Magistrate has discretion to
be exercised judicially in determining
whether there is prima facie case to take
cognizance. At this stage of cognizance,
court is concerned with the involvement
of the person and not of his innocence
therefore any version in defence of the
accused is not to be seen. Question of
affording
opportunity
while
taking
cognizance for the accused to put his
defence does not arise. Thus, the
allegation as to the summoning order
dated
17.1.2019
being
violative
of
principle of natural justice is of no force
and cannot be taken into consideration for
quashing the same the reason of it's being
illegal.

23. In a recent case decided by
Hon'ble Apex Court in the case of Md.
Alauddin Khan Vs. State of Bihar &
Ors. reported in AIR 2019 SC 1910
where the accused were labelled with the
allegation of having committed offence
punishable under Sections 323, 379 read
with section 34 IPC. On submission of
charge-sheet the magistrate by holding
that a prima facie case was made out
against accused on the basis of allegations
made in the complaint. The question was
raised there that whether a judicial
magistrate was right in holding that a
prima facie case is made out against the
accused person for commission of offence
punishable under Sections 323, 379 read
with section 34 IPC, so as to call upon
them to face a trial on merit. In the
circumstances the High Court held that no
prima facie case has been made out
against the accused. Hon'ble Supreme
Court in its para 15, 17 and 19 has held as
under:-

"15. The High Court should
have seen that when a specific grievance
of the appellant in his complaint was that
respondent Nos. 2 and 3 have committed
the offences punishable under Sections
323, 379 read with Section 34 IPC, then
68 INDIAN LAW REPORTS ALLAHABAD SERIES
the question to be examined is as to
whether
there
are
allegations
of
commission of these two offences in the
complaint or not. In other words, in order
to see whether any prima facie case
against the accused for taking its
cognizable is made out or not, the Court
is only required to see the allegations
made in the complaint. In the absence of
any finding recorded by the High Court
on this material question, the impugned
order is legally unsustainable.

17. In our view, the High Court
had no jurisdiction to appreciate the
evidence of the proceedings under Section
482 of the Code Of Criminal Procedure,
1973 (for short "Cr.P.C.") because
whether there are contradictions or/and
inconsistencies in the statements of the
witnesses is essentially an issue relating
to appreciation of evidence and the same
can be gone into by the Judicial
Magistrate during trial when the entire
evidence is adduced by the parties. That
stage is yet to come in this case.

19. In view of the foregoing
discussion, the appeal succeeds and is
accordingly allowed. The impugned order
is set aside and the order of the Judicial
Magistrate dated 13.02.2013 is restored
because it records a finding that a prima
facie case for taking cognizance of the
complaint is made out."

24. In another case before The
Hon'ble
Supreme
Court,
Devendra
Prasad Singh Vs. State of Bihar and
Others decided recently on 2.4.2019
reported in 2019 4 SCC 351, the facts
were that the High Court allowed the
application filed by accused under section
482 of the criminal Procedure Code 1973
and quashed the order dated 21.1.2014
passed by the Judicial Magistrate first
class in complaint case by which the
Magistrate had taken cognizance of the
offence coming out from the allegations
made in the complaint against the accused
for commission of offence under Sections
323, 341, 379 and 504 IPC. The question
was again before the Honorable Supreme
Court that whether the High Court was
justified in quashing the complaint
holding that there was no prima facie case
made out against the accused for issuance
of process of summon to him for
commission of offence punishable under
Sections 323, 341, 379 and 504 IPC. In
para 11 and 12, Hon'ble Supreme Court
has held as under:

"11. In our view, in order to
attract the rigor of Section 197 of the
Cr.P.C., it is necessary that the offence
alleged against a Government Officer
must have some nexus or/and relation
with the discharge of his official duties as
a Government Officer. In this case, we do
not find it to be so.

12. So far as the second ground
is concerned, we are of the view that the
High Court while hearing the application
under Section 482 of the Cr.P.C. had no
jurisdiction to appreciate the statement of
the witnesses and record a finding that
there
were
inconsistencies
in
their
statements and, therefore, there was no
prima facie case made out against
respondent No.2. In our view, this could
be done only in the trial while deciding
the issues on the merits or/and by the
Appellate Court while deciding the
appeal arising out of the final order
passed by the Trial Court but not in
Section 482 Cr.P.C. proceedings."

25. In view of the aforesaid
discussions, considering all the facts and
3 All. Sukhveer Singh & Ors. Vs. The State of U.P.& Anr.
69
materials placed on record by the
applicant accused no prima facie case is
made out with regard to abuse of process
on the part of informant or the police.
Further, it is also not convincing from the
facts that quashing of charge sheet and
summons is merely an effort by the
applicant
to
stiffle
a
legitimate
prosecution against him.

26. In para 102 of the State of
Haryana & Ors. Vs. Bhajan Lal & Ors.
reported in AIR 1992 SC 604, Hon'ble
Supreme Court has illustrated several
circumstances wherein the extraordinary
power under section 482 Cr.P.C. maybe
exercised for the purpose of preventing an
abuse of process or to secure the ends of
Justice or to enforce the order of the
court. Illustrations given in para 102
quoted hereunder are treated as guidelines
for the purpose of exercising of powers
under section 482 CRPC:-

"102.(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 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;

(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."

27. The applicants-accused have no
case falling under any of the categories of
cases given as illustrative guidelines for
the exercise of jurisdiction under Section
482 Cr.P.C. by Hon'ble Apex Court in the
above cited judgement State of Haryana
Vs. Bhajan Lal (supra).
70 INDIAN LAW REPORTS ALLAHABAD SERIES

28. In para 27 of the Inder Mohan
Goswami (Supra), Hon'ble Supreme
Court has held as under:-

"The powers possessed by the High
Court under section 482 of the Code are very
wide and the very plenitude of the power
requires great caution in its exercise. The
court must be careful to see that its decision in
exercise of this power is based on sound
principles. The inherent power should not be
exercised to stifle a legitimate prosecution.
The High Court should normally refrain from
giving a prima facie decision in a case where
all the facts are incomplete and hazy; more
so, when the evidence has not been collected
and produced before the court and the issues
involved, whether factual or legal, are of such
magnitude that they cannot be seen in their
true perspective without sufficient material.
Of course, no hard and fast rule can be laid
down in regard to cases in which the High
Court
will
exercise
its
extraordinary
jurisdiction of quashing the proceedings at
any stage."

29. In Umesh Kumar Vs. State of
Andhra Pradesh reported in AIR 2014
SC 1106, Hon'ble the Apex Court has
held
that
criminal
prosecution
if
otherwise justifiable and possess upon
adequate evidence does not become
vitiated on account of malafide aur
political mandata of First Information
Report or complaint. In para 12 of the
aforesaid judgement the Hon'ble Supreme
Court has held that once criminal law is
put in motion and after investigation the
charge sheet is filed, it requires scrutiny
in the court of law only.

30. The applicant accused has itself
placed the order sheet of the court below
from the date of summoning order dated
17.01.2017 to 18.07.2019 in Sessions
Trial No.22/2017 running before the
Special Judge, SC/ST Act, Lucknow. The
order sheet on reading cumulatively
reveals that since date of summoning the
process is being repeated for compliance
and still the accused applicant instead of
appearing
before
the
court
despite
knowledge of the summoning order
preferred
to
come
to
invoke
the
extraordinary power of the High Court for
quashing of the charge sheet and
summoning order.

31. The extraordinary power of the
court should be exercised sparingly where
the applicant has established prima facie
case with regard to abuse of process. The
materials placed by him do not impulse
necessity to quash the charge sheet and
summoning order.

32. Therefore, the application under
section 482 Cr.P.C. moved with the relief
sought
therein
for
quashment
of
summoning order dated 17.1.2017 and
charges sheet arisen out of case crime
No.867 of 2016 Under Section 147, 323
IPC and Section 3(1)(X) SC/ST Act
Police Station Kakori District Lucknow,
for the reasons having no merit and is
liable to be rejected and accordingly
dismissed.
----------
(2019)11ILR A70

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR SRIVASTAVA , J.

U/S 482/378/407 No. 7348 of 2019

Surendra Tiwari @ Surendra Prasad
Tiwari & Anr. ...Applicants
Versus