# Sumit Agarwal & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 1 ILRA 1305
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-30
- **Case number:** Application u/s 482 No. 27577 of 2022
- **Bench:** Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumit-agarwal-ors-v-state-of-u-p-anr-opp-parties-49118
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 498A, 304-B, 323, 506 & 313 -
Section 3/4 of Dowry Prohibition Act
,1961 - SC directs CBI to investigate and
Asides his bails - The C.B.I. submitted a closure
report
asserting
the
allegations
were
unsubstantiated - Magistrate had already taken
cognizance before - Applicant moved to court
U/S 482 Cr.P.C - Asked for interim bail by
applicants counsel as per findings of CBI -
Oppose, as incident and ,report is of 17 months
later - court acknowledged that both reports
must be considered cumulatively to determine if
grounds exist to presume guilt - court declined
to quash summoning order- applicants given the
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
option to raise their concerns -Application
disposed - interim orders discharged. (E-9)
List of Cases cited:

## Text

1 All. Sumit Agarwal & Ors. Vs. State of U.P. & Anr.
1305
in the presence of the accused or if his
personal attendance is dispensed with, in
the presence of his pleader. That statutory
prescription may not be avoided. Besides,
this is not a case where the frequent
adjournments have been sought from the
side of the present applicant, rather it was
the first application for adjournment filed
on 17.11.2022 when the chief-examination
of PW-11 has been recorded and on the
same date, such opportunity has been
closed
without
giving
any
short
adjournment, therefore, the same may not
be considered as a proper exercise being
carried out by the learned trial court.
Learned counsel might have been busy in
another court at particular point of time and
if such application was filed before the
learned court below, that application should
have been considered properly in the light
of statutory prescription of Section 273
Cr.P.C. vis-a-vis in the light of the fact that
the cross-examination of a witness is a right
of the other side. Such right may be denied
only in exceptional circumstances or in
such circumstances where the order sheet
reveals that the other side/ party is habitual
in seeking adjournments for one reason or
another.

9. Therefore, in view of the facts and
circumstances, considered above, I am of
the considered opinion that the impugned
orders dated 17.11.2022 and 25.11.2022
have not been passed properly, therefore,
both the orders are set aside.

10. Learned trial court is directed to
provide one opportunity to the present
applicant/ his counsel to cross-examine
PW-11 fixing a single date, may be a short
date, and if on that date, said prosecution
witness could not be examined for any
lapse on the part of the present applicant,
any appropriate orders may be passed
indicating the reason. Since the trial in
question
is
of
2015,
therefore,
the
precaution to that effect, which has been
taken by the learned trial court, is
appreciated, but in the light of such
precaution, a single opportunity to crossexamine PW-11 may not be denied.

11. Accordingly, the application is
allowed.
----------
(2023) 1 ILRA 1305
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2022

BEFORE

THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Application u/s 482 No. 27577 of 2022

Sumit Agarwal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Sheshadri Trivedi, Sri Ashish Dutt Dubey, Sri
Satish Trivedi (Sr. Advocate), Sri Gopal S.
Chaturvedi (Sr. Advocate)

Counsel for the Opp. Parties:
G.A., Sri Deepak Dubey, Sri Rajesh Pachauri, Sri
Shiv Bahadur Singh
Criminal Law - Indian Penal Code, 1860 -
Sections 498A, 304-B, 323, 506 & 313 -
Section 3/4 of Dowry Prohibition Act
,1961 - SC directs CBI to investigate and
Asides his bails - The C.B.I. submitted a closure
report
asserting
the
allegations
were
unsubstantiated - Magistrate had already taken
cognizance before - Applicant moved to court
U/S 482 Cr.P.C - Asked for interim bail by
applicants counsel as per findings of CBI -
Oppose, as incident and ,report is of 17 months
later - court acknowledged that both reports
must be considered cumulatively to determine if
grounds exist to presume guilt - court declined
to quash summoning order- applicants given the
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
option to raise their concerns -Application
disposed - interim orders discharged. (E-9)
List of Cases cited:
1. Vinay Tyagi Vs Irshad Ali @ Deepak reported
in 2012 SCC 903
(Delivered by Hon'ble Dr. Gautam
Chowdhary, J.)

1. The facts giving rise to the instant
application are that a first information
report dated 07.08.2020 was lodged with
regard to the incident dated 03.08.2020 in
Case Crime No. 623 of 2020 under Section
498A, 304-B, 323, 506, 313 I.P.C. and
Section 3/4 of Dowry Prohibition Act,
Police Station Tajganj, District Agra with
the averments that marriage of the daughter
of the opposite party no.2 namely, Deepti
was solemnised with the applicant no.1 in
which more than Rs. 1.5 crores were spent,
inspite of the same, the applicants were not
happy with the marriage and they started
making demand of dowry and due to nonfulfilment of the same, she was tormented.
It is also averred that in the year 2017, the
applicants assaulted her, due to which she
sustained
injuries
and
her
medical
examination was done in the Government
Hospital, Vrindawan. Again on 03.08.2020,
the applicant no.2, who is the father in law
of
deceased
telephonically
demanded
dowry and she was brutally assaulted and
to save their skin, the deceased was
admitted in Sarvodaya Hospital, Faridabad,
where she died on 06.08.2020. Thereafter
inquest report and post mortem was
conducted on 06.08.2020 and the doctor
opined the cause of death was shock and
septicaemia and the matter was entrusted
for investigation. The statements of the first
informant/opposite party no.2 as well as
maid and caretaker of the daughter of the
applicant no.1 and deceased were recorded
under
Section
161
Cr.P.C..
In
the
meantime, the applicant no. 2 filed a
Criminal
Misc.
Anticipatory
Bail
Application No. 5457 of 2020 (Smt. Anita
Agarwal and two others Vs. State of U.P.
and another) whereas the applicant nos. 3, 4
and 5 filed a separate anticipatory bail
application
no.
5460
of
20220
(S.C.Agarwal Vs. State of U.P. and
another) and both the anticipatory bail
applications were decided by a common
order dated 29.09.2020, whereby the
applicant nos. 2, 3, 4, 5 were granted
anticipatory bail, till conclusion of the trial.
Against the order dated 29.09.2020 passed
by the co-ordinate Bench of this Court, the
opposite party no.2 approached the Hon'ble
Supreme Court by way of Criminal Appeal
No.872-873 of 2020 arising out of S.L.P.
(Cri) Nos. 4935-4936 (Dr. Naresh Kumar
Mangla Vs. Smt. Anita Agarwal and
others) which was allowed vide Judgement
and order dated 17.12.2020, setting aside
the
order
dated
29.09.2020,
further
directing the C.B.I. to conduct further
investigation of the case arising out of Case
Crime No. 0623 of 2020 registered as
Police Station Tajganj, District Agra.
Pursuant to the order passed by Hon'ble
Apex Court, the C.B.I. registered F.I.R. No.
RCO5320215001 at Police Station SCB,
Lucknow. The applicant no.1, who happens
to be the husband of the deceased, filed
Criminal Misc. Bail Application No. 39500
of 2022 (Sumit Agarwal Vs. State of U.P.)
before this Court, which came up for
consideration
before
this
Court
on
07.04.2021 and the co-ordinate Bench of
this Court vide order dated 07.04.2021 had
rejected the bail prayer of the applicant
no.1,
however,
the
applicant
no.1
approached the Hon'ble Apex Court by way
of filing Special Leave to Appeal No. 3975
of 2021 (Sumit Agarwal Vs. State of Uttar
Pradesh and another) and the Hon'ble Apex
1 All. Sumit Agarwal & Ors. Vs. State of U.P. & Anr.
1307
Court considering the fact that three year
old daughter of the applicant no.1 suffering
from acute bacillary Dysentery granted
interim bail to the applicant no.1 for a
period of six weeks. Later on, the interim
bail of the applicant was confirmed, vide
order dated 18.07.2022, copy of which
order has been produced before this Court
and taken on record. In the meantime, the
investigating
officer
conducted
investigation and after investigation, charge
sheet was submitted against the applicants
vide charge sheet no. 705 of 2020 dated
24.10.2020 arising out of Case Crime No.
623 of 2020 under Sections 498A, 304B,
323, 506 I.P.C. and Section 3/4 of Dowry
Prohibition Act, Police Station Tajganj,
District
Agra
upon
which
cognizance/summoning order was passed
vide order dated 05.11.2020 by the learned
Chief Judicial Magistrate, Agra and the
case was registered as Criminal Case No.
37339 of 2020 (State Vs. Sumit Agarwal
and others). It is this summoning order as
well as proceedings of criminal case which
is under challenge before this Court.

2. Sri Satish Trivedi learned Senior
Advocate
along
with
Sri
Gopal
S.
Chaturvedi,
learned
Senior
Advocate,
assisted by Sri Sheshadri Trivedi, learned
counsel for the applicants argued that
pursuant to the order dated 17.12.2020
passed by Hon'ble Apex Court, the
investigation by the C.B.I. was carried out,
which culminated in closure report dated
28.06.2022 with the observations that the
allegations against the accused persons
have not been substantiated, copy of which
is annexed as Annexure-27 to the affidavit
accompanying the instant 482 Cr.P.C.
application. He further submits that even
Hon'ble Apex Court while confirming the
interim bail of the applicant no.1 had
observed that the C.B.I., after investigation,
submitted final closure report under Section
173 (8) Cr.P.C. Learned counsel further
submits while passing the order dated
17.12.2020, the Hon'ble Apex Court had
observed to entrust the investigation of the
case to the C.B.I. as the conduct of
Investigating authorities from the stage of
arriving at the scene of occurrence till filing
of charge sheet had not inspired confidence
in the robustness of the process with
respect to the veracity of the suicide note,
medical examination of injuries and the
post miscarriages of the deceased, therefore
the Hon'ble Apex Court had directed for
further investigation by the C.B.I.and the
C.B.I. after investigation submitted closure
report and that once the closure report
submitted by C.B.I., the charge sheet under
Section 173 (2) Cr.P.C. lost its significance
and effect, thus the learned Magistrate,
prior to proceeding with the case must have
gone through the closure report, whereas in
the instant case, the learned Magistrate in a
routine manner took the cognizance and
proceeded
with
the
case
without
considering the closure report as well as
other material available on the face of
record and had the Magistrate gone through
the report, instead of proceedings against
the applicants, would have dropped the
proceedings against the applicants but by
not doing so, the learned Magistrate has
committed an illegality thus, the impugned
cognizance/summoning order as well as
proceedings are liable to be quashed by this
Court.

3. On the other hand, Sri S.B.Singh
and Sri Rajesh Pachauri, learned counsel
for the opposite party no.2 submits that in
the instant case, cognizance was taken on
05.11.2020, whereas C.B.I. submitted the
closure report on 28.06.2022 i.e. after a
lapse of more than 19 months and therefore
there is no illegality or perversity in the
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
summoning order. He next submits that
Hon'ble Apex Court while passing the
order for further investigation to be
conducted by the C.B.I., has not annulled
the earlier investigation conducted by the
U.P.Police. He next submits that after
cognizance, the applicants applied for
anticipatory bail which was allowed by this
co-ordinate Bench of Court but that order
has been set aside by Hon'ble Apex Court
directing
the
matter
to
be
further
investigated by the C.B.I. and thus the
Hon'ble Apex Court was fully conscious
and instead of annulling the earlier
investigation,
ordered
for
further
investigation to be conducted by the C.B.I.
and that the C.B.I. was confined only to
further investigate the matter and submit its
report and the CB.I. was not entrusted to
lodge the F.I.R. He next submits that the
learned Magistrate has not committed any
illegality in passing the order impugned
and therefore the impugned order calls for
no interference by this Court in exercise of
powers conferred under 482 Cr.P.C.
jurisdiction.

4. Per contra, learned A.G.A. too has
opposed the application and argued that
there is no illegality or impropriety in the
order impugned and thus the the same is
liable to be affirmed by this Court and the
instant 482 Cr.P.C. is liable to be
dismissed.

5. Heard learned counsel for the
parties and perused the material on record.

6. The Hon'ble Apex Court in a
decision of Vinay Tyagi Vs. Irshad Ali @
Deepak reported in 2012 SCC 903 has
observed in paragraph no. 32 as under:-

"32 Both these reports have to be read
conjointly and it is the cumulative effect of
the reports and the documents annexed
thereto to which the Court would be
expected to apply its mind to determine
whether there exist grounds to presume that
the accused has committed the offence. If
the answer is in the negative, on the basis
of these reports, the Court shall discharge
an accused in compliance with the
provisions of Section 227 of the Code."

7. In the instant case, cognizance was
taken on 05.11.2020, whereas the closure
report was filed on 28.06.2022 which
makes abundantly clear that the learned
Magistrate has taken cognizance long back.
It goes without saying that the Hon'ble
Apex Court while passing the order for
further investigation to be conducted by the
C.B.I. has not set aside the investigation
already
conducted
by
the
police.
Significant
feature
of
the
further
investigation is that it does not have effect
of wiping out directly or impliedly the
initial investigation conducted by the
investigating agency, it is a kind of
continuation of the previous investigation.
It is necessary for the Magistrate to have
due regard to both the reports- the initial
report which was submitted under Section
173 (2) as well as the report under Section
173 (8) Cr.P.C. but where there is a
contradictory reports, then the Magistrate
has to read both the reports conjointly and
if it reaches a conclusion that the accused
has not committed offence, the Court shall
discharge the applicants in view of
provisions of Section 227 of the Code.

8. After considering arguments raised
by the learned counsel for parties, as well
considering
the
entire
facts
and
circumstances of the case and the material
placed before this Court, this Court does
not find it to be a fit case to exercise its
jurisdiction under Section 482 Cr.P.C. for
1 All. Sanni @ Nitish @ Nitish Agrahari & Ors. Vs. State of U.P. & Ors.
1309
quashing of the impugned summoning
order as well as proceedings of the
impugned case.

9. Accordingly, the reliefs sought by
the applicants is refused.

10. However, it is open for the
applicants to raise their grievance in view
of provisions under Section 227 of the
Code, at appropriate stage.

11.

Application
is
accordingly
disposed of.

12. Interim order, if any, stands
discharged.
----------
(2023) 1 ILRA 1309
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.01.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 24 of 2023

Sanni @ Nitish @ Nitish Agrahari & Ors.
 ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Raghvendra Singh, Anil Kumar Tiwari

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code -
Sections 323 & 307 - Arms Act, 1959 -
Section 30-Application for quashing of charge
sheet - Charged under sec 323 and 307 of ipc
and sec 30 of arms act -Act involved firing gun
shots in broad day light hitting two persons -
offence was treated as crime against society
and was heinous and serious offence -
Proceeding cannot be quashed by compromise.
Application dismissed. (E-9)

List of Cases cited:

1. Gian Singh Vs St. of Pun., (2012) 10 SCC 303

2. Narinder Singh & ors. Vs St. of Pun. & anr.,
(2014) 6 SCC 466,

3. Gold Quest International (P) Ltd. v. St. of
T.N., (2014) 15 SCC 235,

4. St. of M. P. Vs Laxmi Narayan & ors. (2019) 5
SCC 688

5. Arun Singh Vs St. of U. P. Through its
Secretary & ors. (2020) 3 SCC 736

6. Daxaben VsThe St. of Gujarat & ors. 2022
SCC OnLine SC 936

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Raghvendra Singh,
learned counsel for the applicants, Sri Tilak
Raj Singh, learned AGA-I on behalf of the
State and Sri Ramendra Kumar, learned
counsel for the opposite parties no. 2 to 4.

2. By means of the instant application
the applicants are seeking quashing of the
charge sheet dated 26.03.2015 filed in
respect of Case Crime No. 511/2014, under
Sections 307, 323 IPC, Police Station
Kotwali Akbarpur,
District Ambedkar
Nagar and proceedings of Session Trial No.
111/2015 titled State v. Sunni @ Nitish &
Ors. pending in the Court of IIIrd
Additional District and Session Judge,
Ambedkar Nagar arising out of the
aforesaid charge sheet on the ground that
on 09.12.2022 a compromise has been
entered into between the parties settling the
dispute and now the opposite parties no. 2
to 4 do not want to pursue the matter.

3. The aforesaid case was initiated on
the basis of an FIR bearing Case Crime No.