# Syed Nadeem Tariq v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** Application U/S 482 No. 6411 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/syed-nadeem-tariq-v-state-of-u-p-anr-45391
- **Pages:** 4

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 482- Order
passed by a coordinate Bench of this
Court-It is apparent that the proceeding,
arising out of this very case crime number,
was challenged in that very Application,
with a prayer for quashing of chargesheet
and cognizance taking order, passed
therein, and this Court, while entertaining
that Application, has held that it cannot be
said
that
there
is
no
ground
for
proceeding or taking of cognizance.

Once a co-ordinate declines to quash the
criminal proceedings, the same cannot be reagitated
through
a
subsequent
criminal
application.

Code of Criminal Procedure, 1973- Section
482- Section 227- At this juncture, this
Court may not analyse factual aspect
because the same falls within the domain
of the Trial court, concerned, but, prima
facie, there is sufficient evidence for
framing of charge, , because as per the
law laid down by the Apex Court, in the
case of Palwinder Singh vs. Malwinder
Singh, reported in (2008) 14 Supreme
Court Cases 504, for framing of charge
even a strong suspicion may be sufficient
ground.

In the exercise of its inherent jurisdiction, the
high court cannot analyse the factual aspects of
the case as the same are to be decided by the
trial court. It is settled law that Charge can be
framed even on the basis of strong suspicion.

Criminal Application rejected.(Para 5, 6) (E-3)

Case law/ Judgements relied upon:-

Palwinder Singh Vs Malwinder Singh, (2008) 14
SCC 504

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) No finding could be recorded
that the counsel appointed by the accused
were incompetent particularly at back of
such counsel;

(iiii)
Expeditious
trial
in
a
heinous offence as is alleged in the present
case is in the interests of justice;

(iv) The trial Court as well as the
High Court rejected the reasons for recall
of the witnesses;

(v) The Court has to keep in mind
not
only
the
need
for
giving
fair
opportunity to the accused but also the
need for ensuring that the victim of the
crime is not unduly harassed;

(vi) Mere fact that the accused
was in custody and that he will suffer by the
delay could be no consideration for
allowing recall of witnesses, particularly at
the fag end of the trial;

(vii) Mere change of counsel
cannot be ground to recall the witnesses;

viii) There is no basis for holding
that any prejudice will be caused to the
accused unless the witnesses are recalled;

(ix) The High Court has not
rejected the reasons given by the trial court
nor given any justification for permitting
recall of the witnesses except for making
general observations that recall was
necessary for ensuring fair trial. This
observation is contrary to the reasoning of
the High Court in dealing with the grounds
for recall, i.e., denial of fair opportunity on
account of incompetence of earlier counsel
or on account of expeditious proceedings;

(x) There is neither any patent
error in the approach adopted by the trial
court rejecting the prayer for recall nor any
clear injustice if such prayer is not
granted."

6.

Considering
the
facts
and
circumstances of the case, arguments
advanced and after going through the entire
judgment, this court is of the view that the
arguments advanced by the counsel is not
sustainable and that the plea can not be
taken by the revisionist's counsel that he
has been subsequently engaged, therefore,
one more opportunity may be given to him.
It is within the rights of the litigant to
engage any counsel at any stage but the
engagement of the new counsel and the
dawn of fresh wisdom upon the first
informant cannot be allowed to further
delay the matter. The circumstances under
which the application was rejected out are
sufficiently shown in the impugned order.
The impugned order does not reflect any
element of inconsistency or any abuse of
court's process which may persuade this
Court to interfere in the same.

7. The prayer for summoning the P.W.
1 for cross examination is therefore
refused.

8. Accordingly, this application lacks
merit and is hereby dismissed.
----------

(2020)11ILR A26
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 6411 of 2020

Syed Nadeem Tariq ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Kumar Srivastava

Counsel for the Opposite Parties:
A.G.A.
11 All. Syed Nadeem Tariq Vs. State of U.P. & Anr.
27
Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 482- Order
passed by a coordinate Bench of this
Court-It is apparent that the proceeding,
arising out of this very case crime number,
was challenged in that very Application,
with a prayer for quashing of chargesheet
and cognizance taking order, passed
therein, and this Court, while entertaining
that Application, has held that it cannot be
said
that
there
is
no
ground
for
proceeding or taking of cognizance.

Once a co-ordinate declines to quash the
criminal proceedings, the same cannot be reagitated
through
a
subsequent
criminal
application.

Code of Criminal Procedure, 1973- Section
482- Section 227- At this juncture, this
Court may not analyse factual aspect
because the same falls within the domain
of the Trial court, concerned, but, prima
facie, there is sufficient evidence for
framing of charge, , because as per the
law laid down by the Apex Court, in the
case of Palwinder Singh vs. Malwinder
Singh, reported in (2008) 14 Supreme
Court Cases 504, for framing of charge
even a strong suspicion may be sufficient
ground.

In the exercise of its inherent jurisdiction, the
high court cannot analyse the factual aspects of
the case as the same are to be decided by the
trial court. It is settled law that Charge can be
framed even on the basis of strong suspicion.

Criminal Application rejected.(Para 5, 6) (E-3)

Case law/ Judgements relied upon:-

Palwinder Singh Vs Malwinder Singh, (2008) 14
SCC 504

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

1. This Application, under Section
482 of Code of Criminal Procedure, 1973,
has been filed by the Applicant, Syed
Nadeem Tariq, with a prayer for setting
aside impugned order, dated 22.1.2020,
passed by the Additional Sessions Judge
(Offences Against Women), Rampur, in
Session Trial No.106 of 2019, State vs.
Nadeem Tariq, arising out of Case Crime
No.49 2014, under Sections 498A, 323,
315, 504 and 506 of IPC, read with
Sections 3/4 of Dowry Prohibition Act,
Police Station-Ganj, District-Rampur.

2. Learned counsel for applicant
argued that a Discharge Application was
moved before the Trial court, under Section
227 of Cr.P.C., wherein, it was specifically
mentioned that there is no medical report,
annexed with the case diary, nor any
evidence of offence, punishable, under
Section 315 of IPC, was there, except
statement of the Medical Officer, alleged to
have been recorded, under Section 161 of
Cr.P.C., which, too, was much delayed,
whereas, concerned Medical Officer was
not
competent
to
make
mechanical
termination of pregnancy because as per
the
Act,
related
with
Mechanical
Termination of Pregnancy Act, 1971 (Act
No.34 of 1971) and the Rules framed
thereunder, mechanical
termination of
pregnancy is to be conducted by a Panel of
two Doctors. Hence, the statement of
concerned Doctor was of no concern and
this fact was not considered by the Trial
court, while rejecting Application, under
Section 227 of Cr.P.C. The grievance is not
related with other offences, i.e., offences,
punishable under Sections 498A, 323, 504
and 506 of IPC, read with Sections 3/4 of
Dowry Prohibition Act, except framing of
charge, for offence, punishable, under
Section 315 of IPC, which is an abuse of
process of law. Hence, this Application,
under Section 482 of Cr.P.C, with above
prayer, for avoiding abuse of process of law
and for securing ends of justice, has been
filed before this Court.
28 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Learned counsel, appearing for
other side, while vehemently opposing this
Application, has contended that there was
evidence, constituting offence, punishable,
under Section 315 of IPC, and this Court is
not to analyse fact, in exercise of
jurisdiction, under Section 482 of Cr.P.C.,
particularly, when offences, punishable,
under other Sections of IPC and Dowry
Prohibition Act, were admitted to be there
for framing of charges and the grievance of
applicant
is
confined
with
offence,
punishable, under Section 315 of IPC only.

4. Learned AGA, representing State
of U.P., has also vehemently opposed this
Application.

5. From very perusal of the order
passed by a coordinate Bench of this
Court, in Application U/S 482 No.39235
of 2016, Nadeem Tarik and 2 others vs.
State of U.P. and another, it is apparent
that the proceeding, arising out of this
very case crime number, was challenged
in that very Application, with a prayer for
quashing of chargesheet and cognizance
taking order, passed therein, and this
Court,
while
entertaining
that
Application,
vide
order,
dated
19.12.2016, has held that it cannot be
said
that
there
is
no
ground
for
proceeding or taking of cognizance.
Meaning thereby, grounds were held to be
present, prima facie, at that juncture,
though an opportunity for moving a
Discharge Application, at appropriate
stage was given and, in exercise of that
very option, an application was moved.

6. The statement of victim and other
witnesses of fact are there, wherein, it has
been specifically alleged that owing to
injury caused by the present applicant to
the victim-applicant, who was pregnant,
she suffered death of her ovum, wherefor,
she has to seek medical assistance for
termination of fetus. This fact has been
corroborated by the Medical Officer, who
had conducted above surgery. Hence, at
this juncture, this Court may not analyse
above factual aspect because the same
falls within the domain of the Trial court,
concerned, but, prima facie, there is
sufficient evidence for framing of charge,
for offence, punishable, under Section
315 of IPC, because as per the law laid
down by the Apex Court, in the case of
Palwinder Singh vs. Malwinder Singh,
reported in (2008) 14 Supreme Court
Cases 504, for framing of charge even a
strong
suspicion
may
be
sufficient
ground.

7. Competence of Medical Officer
for conducting mechanical termination of
pregnancy etc. etc. are to be seen by the
Trial court, but apparently, the fetus was
dead, and thenafter, it was terminated, by
way of getting it out by the concerned
Medical Officer. It was not an mechanical
termination of pregnancy, rather, it was
conducted after death of fetus because of
alleged injury, caused by the husband,
applicant herein.

8. Hence, under all above facts and
circumstances, there appears to be no
abuse of process of law. Accordingly, in
view of what has been discussed,
hereinabove,
this Application,
under
Section
482 of
Cr.P.C.,
merits
its
dismissal and it stands dismissed as such.
However, the Trial court, is not to be
influenced by any of the finding or
observations, made hereinabove, in this
order, rather, it ha to make judicial
making decision on the basis of evidence
and materials available before it.
----------
11 All. Brijesh Kumar & Ors. Vs. State of U.P. & Anr.
29
(2020)11ILR A29
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 7478 of 2020

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

Counsel for the Applicants:
Sri Nipun Singh, Sri Upendra Kumar

Counsel for the Opposite Parties:
A.G.A.

Criminal law - Code of Criminal Procedure,
1973-
Section
227-
Section
228-
Discharge- Stage of framing the Charge-
Considerations- The object of Sections
227 and 228 of Cr.P.C. is to ensure that,
the Court is satisfied that the accusation
made
against
the
accused
are
not
frivolous and that there are some material
for
proceeding
against
them.
The
following principles emerge that (i) the
Judge while considering the question of
framing the charges under Section 228 of
the Code, has the undoubted power to sift
and weigh the evidence for the limited
purpose of finding out whether or not a
prima facie case against the accused has
been made out, (ii) Where the materials
placed before the Court disclose grave
suspicion against the accused which has
not been properly explained the Court will
be fully justified in framing a charge and
proceeding with the trial, (iii) The test to
determine a prima facie case would
naturally depend upon the facts of each
case and it is difficult to lay down a rule of
universal
application.
By
and
large
however if two views are equally possible
and the Judge is satisfied that the
evidence
produced
before
him
while
giving rise to some suspicion but not
grave suspicion against the accused, he
will be fully within his right to discharge
the accused, (iv) That in exercising his
jurisdiction under Section 227 of the Code
the Judge which under the present Code is
a senior and experienced court cannot act
merely as a Post Office or a mouthpiece of
the prosecution, but has to consider the
broad probabilities of the case, the total
effect of the evidence and the documents
produced before the Court. This however
does not mean that the Judge should
make a roving enquiry into the pros and
cons of the matter and weigh the evidence
as if he is conducting a trial.

At the stage of framing the charge, after sifting
and weighing the evidence, the court has only
to see whether there is some material making
out a prima facie case or the same discloses
grave suspicion for proceeding against the
accused, the court will proceed with the framing
of the Charge but where the said material raises
only some suspicion instead of grave suspicion
then the accused may be entitled to be
discharged.

Code of Criminal Procedure, 1973- Section
91- Summons to produce a document or a
thing- If the investigator is not fair and
the material of "sterling quality" are left
out from the records of the case, the law
courts are not powerless to summon those
material/documents which touches the
core issue in exercise of power under
section 91 of Cr.P.C. To exercise power
under section 91 of Cr.P.C., the Court is to
be satisfied that the material available
were either accidentally or mischievously
are not made part of the case diary or
charge sheet by the Investigator but have
a crucial bearing on the issue while
framing the 'charge'.

If the court is satisfied that material of sterling
quality which has a crucial bearing on the core
issue has been omitted during the course of the
investigation, then the court can summon the
same at the stage of framing the Charge u/s 91
of the Cr.Pc.

The documents if placed on record and
taken into consideration, clearly reject
and
overrule
the
veracity
of
the