# Suresh Chandra Rastogi v. State of U.P

- **Citation:** (2024) 1 ILRA 152
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Application U/S 482 No. 776 of 1987
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chandra-rastogi-v-state-of-u-p-51060
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 195, 195(1)(b)(i), 340 &
482 - Indian Penal Code, 1860 - Sections
193, 193(2), 195, 196, 199, 200, 205, 211,
380 & 411- Constitution of India,1950 -
Article 21 - Application u/s 482 - for quashing
the charge-sheet as well as summoning order -
FIR - Charge-sheet - plea taken that, the
impugned charge-sheet was filled on a printed
proforma and summoning order was passed
without applying judicial mind, as required by
law - Court finds that, - merit in this claim, citing
precedents including Lalankumar Singh v. St. of
Mah. and various rulings from coordinate
benches, all emphasizing that issuing process
must
reflect
a
Magistrate's
prima
facie
satisfaction based on the material on record -
Court held that, merely filing up printed
proforma and then signing the same will not be
a cognizance at all because this is completely
non-application of mind on the part of concern
Magistrate for taking such mechanical orders
which also violate constitutional safeguards
under Article 21 - hence, directed to issue
well-reasoned
cognizance
orders
afresh,
within one month - consequently, applicant is
allowed
and
the
impugned
orders
are
quashed.
(Para - 9, 10, 11)

Application Allowed. (E-11)

List of Cases cited:

## Text

152 INDIAN LAW REPORTS ALLAHABAD SERIES

10. On executing the sureties and
personal bond as directed above, the
applicant shall be released on bail.

11. With the above observations, the
present application is disposed of.
----------
(2024) 1 ILRA 152
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 776 of 1987

Suresh Chandra Rastogi ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Daya Shankar Mishra, Karuna Shanker
Rastogi, Ram Kishor

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 195, 195(1)(b)(i), 340 &
482 - Indian Penal Code, 1860 - Sections
193, 193(2), 195, 196, 199, 200, 205, 211,
380 & 411- Constitution of India,1950 -
Article 21 - Application u/s 482 - for quashing
the charge-sheet as well as summoning order -
FIR - Charge-sheet - plea taken that, the
impugned charge-sheet was filled on a printed
proforma and summoning order was passed
without applying judicial mind, as required by
law - Court finds that, - merit in this claim, citing
precedents including Lalankumar Singh v. St. of
Mah. and various rulings from coordinate
benches, all emphasizing that issuing process
must
reflect
a
Magistrate's
prima
facie
satisfaction based on the material on record -
Court held that, merely filing up printed
proforma and then signing the same will not be
a cognizance at all because this is completely
non-application of mind on the part of concern
Magistrate for taking such mechanical orders
which also violate constitutional safeguards
under Article 21 - hence, directed to issue
well-reasoned
cognizance
orders
afresh,
within one month - consequently, applicant is
allowed
and
the
impugned
orders
are
quashed.
(Para - 9, 10, 11)

Application Allowed. (E-11)

List of Cases cited:

1. Lalankumar Singh Vs St. of Mah.; 2022 SCC
OnLine SC 1383,

2. Surendra Kumar & ors. Vs St. of U.P. & anr.-
2021 (7) ADJ 61,

3. Dhanesh Kumar @ Dhanesh Kumar Mishra
Vs St. of U.P. Thru. Prin. Secy. (Home) Lko. &
anr. passed in Application u/s 482 No.9892 of
2022 dated 04.01.2023,

4. Amit Kumar Dwivedi & anr. Vs St. of U.P. &
anr. - Application u/s 482 No. 35443/2023 -
order dated 05.10.2023.

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

1. Heard Sri Karuna Shankar Rastogi
Advocate, the learned counsel for the
applicant and Sri Shaunak Singh, the
learned AGA-I for the State.

2. By means of the instant
application filed under Section 482
Cr.P.C. the applicant has sought quashing
of the order dated 24.12.1985 passed by
the learned Chief Judicial Magistrate,
Lakhimpur Kheri in a complaint filed
under Section 193/211 IPC, which has
been registered as a Criminal Case
No.1191 of 1987: State Vs. Suresh Chandra
Rastogi as well as the order dated
12.01.1987,
passed
by
the
1 All. Suresh Chandra Rastogi Vs. State of U.P.
153
aforesaid Court whereby charges have been
framed against the applicant.

3. Briefly stated, facts of the case are
that the applicant had filed an FIR bearing
Case No. 86 of 1980 under Sections 380
and 411 IPC, Police Station Muhammadi,
District Lakhimpur Kheri on 07.03.1980
stating that Ishtiyaq Ali and Hamid were
keeping potatoes for storage in a room of
the applicant. There was a wooden almirah
in the wall of the room, in which some
jewelery was kept. The applicant had gone
to his shop in a haste while leaving the
almirah unlocked and when he checked the
almirah after coming back, the jewelery
was not there and Ishtiyaq and Hanif had
gone away. The applicant had expressed a
suspicion that aforesaid persons had stolen
his jewelery. Some jewelery is said to have
been recovered from named accused
persons, Ishtiyaq and Hanif and another
article was recovered from one Imtiyaz,
who was also made an accused.

4. After investigation, a charge-sheet
was submitted. Trial court took cognizance
of the case and registered a Case No.196 of
1983, which was decided by means of a
judgment and order dated 23.03.1985
passed by the learned Munsif Magistrate,
Mohammadi, Lakhimpur Kheri, acquitting
all the three accused persons of the charges.
It was observed in the judgment that it
appears that the applicant had concocted
the story in connivance with the police
persons and a case was set up against the
accused persons by showing fake recovery,
which could not be proved in the trial.

5. On 23.10.1985 the aforesaid three
persons filed an application under Section
340/195 Cr.P.C. stating that from the
observations made by the trial court while
acquitting them, it is manifest that the
applicant has committed offences under
Sections 193, 195, 211 IPC and he should
be punished for the same.

6. The aforesaid application was
allowed by means of an order dated
07.11.1985
passed
by
the
Munsif
Magistrate, Mohammadi and a complaint
was ordered to be filed against the
application under Section 193(2) IPC.
Accordingly,
the
Munsif
Magistrate,
Mohammadi filed a complaint under
Section 195/340 Cr.P.C. for prosecution of
the applicant under Section 193/211 IPC.
The complaint has been registered as
Criminal Case No.1191 of 1987

7. The applicant filed his objection
dated 15.05.1986 against the complaint.
However, the learned Judicial Magistrate
Mohammadi, Kheri passed an order dated
19.12.1987 framing charges against the
applicant and ordered him to face trial.

8. The applicant has filed the
application under Section 482 Cr.P.C. on
27.11.1987 and on the same day, this Court
had passed an interim order staying the
proceedings of Criminal Case No.1191 of
1987 pending in the Court of Chief Judicial
Magistrate, Lahimpur Kheri.

9. Although the application remained
pending for more than 36 years, and the
proceedings of the complaint are lying
stayed since then, a counter affidavit was
filed by the State only on 14.03.2023,
which is formal in nature. The applicant has
filed a rejoinder affidavit.

10. The learned counsel for the
applicant Sri. Karuna Shankar Rastogi has
submitted that the FIR in question was
lodged in the year 1980, judgment of
acquittal was passed on 23.03.1985 while
154 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicant was merely 28 years of age.
The order to file a complaint was passed on
07.11.1985 and the charges were framed on
12.01.1987. Proceedings of the complaint
are lying stayed since 27.11.1987 and
presently the applicant has attained 72
years of age. Relying upon the judgments
in the cases of Vakil Prasad Singh v. State
of Bihar, (2009) 3 SCC 355, the learned
Counsel for the applicant has submitted
that the delay in disposal of the proceedings
violates the applicant's fundamental right to
life and liberty guaranteed under Article 21
of the Constitution of India.

11. The learned counsel for the
applicant has next submitted that the
applicant had lodged the FIR merely stating
that he suspected that the accused persons
had committed a theft in his house and
during investigation some stolen articles
were recovered from the accused persons.
However,
trial
court
disbelieved
the
prosecution version, acquitted the accused
persons and observed that the applicant had
concocted the story in connivance with the
police persons. The learned Counsel for the
applicant has submitted that in the entire
judgment of the trial Court, there is no
mention of any statement given by the
applicant,
which
may
amount
of
commission of offence by the applicant and
that the applicant has been made the sole
accused on the ground that he had acted in
connivance with the police persons but
there is no charge of criminal conspiracy
between the applicant and the police
persons and witnesses.

12. Per contra, Sri. Shaunak Singh,
the learned A.G.A.-I has opposed the
application and he has submitted that it is
apparent from the findings recorded by the
trial
Court
in
the
judgment
dated
23.03.1985, that the applicant had made
false
allegations
against
the
persons
accused in that case and, therefore, he is
liable to be prosecuted for the offences
under Section 193/211 IPC.

13. I have perused the record and
considered the submissions advanced by
the learned Counsel for the parties.

14. The applicant had lodged the FIR
in question in the year 1980 when the
applicant was merely 28 years of age. The
trial Court had acquitted the accused vide
judgment passed on 23.03.1985. The trial
Court had passed an order for filing a
complaint under Section 340 Cr.P.C. on
07.11.1985. Thereafter the complaint was
filed and the charges were framed on
12.01.1987. Proceedings of the complaint
were stayed by this Court on 27.11.1987,
the State filed a counter affidavit only on
14.03.2023 and presently the applicant has
attained 72 years of age.

15. In Vakil Prasad Singh (2009) 3
SCC 355, after considering the precedents
on the point, it was held that: -

"24. It is, therefore, well settled
that the right to speedy trial in all criminal
persecutions (sic prosecutions) is an
inalienable right under Article 21 of the
Constitution. This right is applicable not
only to the actual proceedings in court but
also includes within its sweep the preceding
police investigations as well. The right to
speedy trial extends equally to all criminal
prosecutions and is not confined to any
particular category of cases. In every case,
where the right to speedy trial is alleged to
have been infringed, the court has to
perform the balancing act upon taking into
consideration
all
the
attendant
circumstances, enumerated above, and
determine in each case whether the right to
1 All. Suresh Chandra Rastogi Vs. State of U.P.
155
speedy trial has been denied in a given
case.

25. Where the court comes to the
conclusion that the right to speedy trial of
an accused has been infringed, the charges
or the conviction, as the case may be, may
be quashed unless the court feels that
having regard to the nature of offence and
other relevant circumstances, quashing of
proceedings may not be in the interest of
justice. In such a situation, it is open to the
court to make an appropriate order as it
may deem just and equitable including
fixation of time-frame for conclusion of
trial."

16. Therefore, although the entire
facts and circumstances of the case have to
be taken into consideration, the factum of
delay in conclusion of trial weighs heavily
in favour of the applicant.

17. The applicant had lodged the FIR
on 07.03.1980 stating that he suspected that
the accused persons had committed a theft
in his house. During investigation, SubInspector Dwarika Prasad Mishra and Deep
Singh had made recovery of stolen articles
from Hanif on 08.03.1980 in presence of
witnesses Ramdeen and Krishnadeen. A
gold chain, a ring and a nose ring are said
to have been recovered by the S.O. Gyan
Chandra from the accused Imtiyaz on
05.06.1980 in the presence of witnesses,
Ramesh Chandra and Chhotey Lal.

18.

However,
the
trial
court
disbelieved the prosecution version by
observing that the applicant had stated in
his statement that he had a double storied
house, he lived on the upper floor and
potatoes were being stored in a room on the
ground floor in which some useless
household items are kept. It does not
appear to be natural that jewelery was kept
in such a place. The trial court further held
that the applicant or any other witness had
not seen the accused Ishtiyaq committing
theft and no evidence was adduced against
him and he deserved to be acquitted. So far
as other accused persons, Hanif and
Imtiyaz are concerned, the trial Court held
that
although
Sub-Inspector
Dwarika
Prasad Mishra and Deep Singh had made
recovery of stolen articles from Hanif on
08.03.1980 in presence of witnesses
Ramdeen and Krishnadeen and a gold
chain, a ring and a nose ring are said to
have been recovered by the S.O. Gyan
Chandra from the accused Imtiyaz on
05.06.1980 in the presence of witnesses,
Ramesh Chandra and Chhotey Lal, as no
person had seen the aforesaid accused
persons committing the theft they could not
be convicted for the offence under Section
380 IPC.

19. The complaint filed by Munsif
Magistrate, Mohammadi merely reproduces
the contents of the FIR that the applicant
had suspected that the accused personsIshtiyaq and Hanif had stolen some
jewelery from his house and thereafter
observed that while acquitting the accused
persons, the trial court had held that the
applicant had lodged a false report and
showed a fake recovery in connivance with
the police persons and that the applicant
gave a false statement on oath.

20. The offence of giving false
evidence is defined in Section 191 I.P.C. as
follows: -

"191. Giving false evidence.-
Whoever, being legally bound by an oath or
by an express provision of law to state the
truth, or being bound by law to make a
declaration upon any subject, makes any
statement which is false, and which he
156 INDIAN LAW REPORTS ALLAHABAD SERIES
either knows or believes to be false or does
not believe to be true, is said to give false
evidence."

21. Section 195 (1) (b) (i) of Cr.P.C.
provides that no Court shall take cognizance
of any offence punishable under any of the
following sections of the Penal Code, 1860
(45 of 1860), namely, sections 193 to 196
(both inclusive), 199, 200, 205 to 211 (both
inclusive) and 228, when such offence is
alleged to have been committed in, or in
relation to, any proceeding in any court,
except on the complaint in writing of that
Court, or by such officer of the Court as that
Court may authorize in writing in this
behalf, or of some other Court to which that
Court is subordinate.

22. Section 211 I.P.C. provides as
follows: -

"211. False charge of offence
made with intent to injure.-Whoever, with
intent to cause injury to any person,
institutes or causes to be instituted any
criminal proceeding against that person, or
falsely charges any person with having
committed an offence, knowing that there is
no just or lawful ground for such proceeding
or charge against that person, shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both;

and if such criminal proceeding be
instituted on a false charge of an offence
punishable with death, imprisonment for
life, or imprisonment for seven years or
upwards,
shall
be
punishable
with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine."

23. The applicant had merely
expressed a suspicion that the accused
persons had committed theft in his house
and the suspicion was fortified by the
recovery of stolen articles made by the
police officers in presence of independent
witnesses. There is nothing on record to
establish that the applicant had falsely
charged the accused persons with intent to
cause injury to the accused persons and that
the applicant knew that there was no just or
lawful ground for lodging the F.I.R. against
the accused persons.

24. Section 340 Cr.P.C. provides that
"When upon an application made to it in
this behalf or otherwise, any Court is of
opinion that it is expedient in the interest of
justice that an inquiry should be made into
any offence referred to in clause (b) of subsection (1) of section 195, which appears to
have been committed in or in relation to a
proceeding in that Court or, as the case may
be, in respect of a document produced or
given in evidence in a proceeding in that
Court,
such
Court
may,
after
such
preliminary inquiry, if any, as it thinks
necessary, make a complaint thereof in
writing".

25. Thus from the above, it follows
that there are two conditions, on fullfilment
of which a complaint can be filed against a
person who has given a false affidavit or
evidence in a proceeding before a court.
The first condition being that a person has
given a false affidavit in a proceeding
before the court and, secondly, in the
opinion of the court it is expedient in the
interest of justice to make an inquiry
against such a person in relation to the
offence committed by him.

26. For initiating proceedings under
Section 340 Cr.P.C., the person should have
consciously made a deliberate statement,
which is found to be false on the basis of
1 All. Suresh Chandra Rastogi Vs. State of U.P.
157
unimpeachable evidence. Further, the court
concerned has to consider whether it would
be expedient in the interest of justice to
sanction such prosecution. The court has to
see whether there is evidence in support of
the allegation to justify the initiation of
proceedings against the applicant. The
court should be satisfied that there is
reasonable foundation for the charge.

27. In Iqbal Singh Marwah v.
Meenakshi Marwah, (2005) 4 SCC 370,
the Hon'ble Supreme Court had held that: -

"23. In view of the language used
in Section 340 CrPC the court is not bound
to make a complaint regarding commission
of an offence referred to in Section
195(1)(b), as the section is conditioned by
the words "court is of opinion that it is
expedient in the interests of justice". This
shows that such a course will be adopted
only if the interest of justice requires and
not in every case. Before filing of the
complaint,
the
court
may
hold
a
preliminary enquiry and record a finding to
the effect that it is expedient in the interests
of justice that enquiry should be made into
any of the offences referred to in Section
195(1)(b). This expediency will normally be
judged by the court by weighing not the
magnitude of injury suffered by the person
affected
by
such
forgery
or
forged
document, but having regard to the effect or
impact, such commission of offence has
upon administration of justice. It is possible
that such forged document or forgery may
cause a very serious or substantial injury to
a person in the sense that it may deprive
him of a very valuable property or status or
the like, but such document may be just a
piece of evidence produced or given in
evidence in court, where voluminous
evidence may have been adduced and the
effect of such piece of evidence on the
broad concept of administration of justice
may be minimal. In such circumstances, the
court may not consider it expedient in the
interest of justice to make a complaint."

28. In the F.I.R., the applicant had
merely expressed a suspicion that the two
named accused persons had committed a
theft in his house and he had not made a
categorical assertion against the accused
persons. The complaint does not refer to
any other statement made by the applicant
on oath, alleging commission of the offence
by the accused persons. Therefore, there is
no material to establish that the applicant
had given any statement on oath, which has
been found to be false.

29. The police claimed to have
recovered the stolen articles from the
accused persons and the recoveries had
been witnesses by some independent
persons. The trial Court disbelieved the
recovery made by police and witnessed by
independent persons, but the police persons
who had made the recovery or the persons
who had witnessed the recovery, have not
been made accused in the complaint. The
applicant had been made the sole accused
on the ground that he had acted in
connivance with the police persons but
there is no charge of criminal conspiracy
between the applicant and the police
persons and witnesses.

30. In the aforesaid circumstances, I
am of the considered view that the mere
expression of a suspicion of commission of
theft by the accused persons does not
amount to commit an offence by the
applicant. The other evidence, which has
been disbelieved by the trial court, was not
of the applicant and the persons who had
given the evidence have not been made an
accused. Therefore, there is no material
158 INDIAN LAW REPORTS ALLAHABAD SERIES
warranting prosecution of the applicant for
offences under Section 193/211 I.P.C. The
learned
Chief
Judicial
Magistrate,
Lakhimpur
Kheri
appears
to
have
committed a patent error in framing charges
against the applicant and directing him to
face trial for the charges.

31. Accordingly, the present application
under Section 482 Cr.P.C. is allowed. The
impugned order dated 24.12.1985, passed by
the
learned
Chief
Judicial
Magistrate,
Lakhimpur Kheri in Criminal Case No.1191
of 1987 as well as the order dated
12.01.1987, passed in the aforesaid case
whereby charges have been framed against
the applicant, are hereby quashed.
----------
(2024) 1 ILRA 158
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.01.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 2413 of 2016

Ram Kewal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Angre
Nath
Shukla,
Deo
Prakash
Srivastava, Naveen Kumar Pandey

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Indian Penal Code,
1860 - Sections 419 & 420 - Constitution of
India,1950 - Article 21 - Application u/s 482 -
for quashing the charge-sheet as well as
summoning order - FIR - Charge-sheet - plea
taken that, the impugned charge-sheet was filled
on a printed proforma and summoning order was
passed without applying judicial mind, as required
by law - Court finds that, - merit in this claim,
citing precedents including Lalankumar Singh v. St.
of Mah. and various rulings from coordinate
benches, all emphasizing that issuing process must
reflect a Magistrate's prima facie satisfaction based
on the material on record - Court held that, merely
filing up printed proforma and then signing the
same will not be a cognizance at all because this is
completely non-application of mind on the part of
concern Magistrate for taking such mechanical
orders which also violate constitutional safeguards
under Article 21 - hence, directed to issue wellreasoned cognizance orders afresh, within one
month - consequently, applicant is allowed and the
impugned orders are quashed. (Para - 9, 10, 11)

Application Allowed. (E-11)

List of Cases cited:

1. Lalankumar Singh Vs St. of Mah.; 2022 SCC
OnLine SC 1383,

2. Surendra Kumar & ors. Vs St. of U.P. & anr.-
2021 (7) ADJ 61,

3. Dhanesh Kumar @ Dhanesh Kumar Mishra Vs
St. of U.P. Thru. Prin. Secy. (Home) Lko. & anr.
passed in Application u/s 482 No.9892 of 2022
dated 04.01.2023,

4. Amit Kumar Dwivedi & anr. Vs St. of U.P. &
anr. - Application u/s 482 No. 35443/2023 -
order dated 05.10.2023.

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Learned counsel for the applicant is
permitted to correct the prayer clause,
during the course of the day.

2. Despite service of notice, no one
appears on behalf of opposite party no.2.

3. Heard learned counsel for the
applicant and Sri Arvind Kumar Tripathi,
learned
AGA
for
the
State.