# Vivek Singh @ Monu & Anr v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 2034
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Application U/S 482 No. 2705 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-singh-monu-anr-v-state-of-u-p-anr-52041
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 304 IPC - Code of Criminal
Procedure, 1973-Section 482-Allegation-some
persons were demolishing a boundary wall of the
Old Employment Office-a peepal tree consequently
fell over a passerby -got injured and diedApplicants not named in the FIR-arrayed as
accused upon the St.ment u/s 161 Cr.P.C. of the
deceased's daughter-not eye witness-it is a case of
accident not u/s 304 IPC-no intention -Police were
present when the accused were demolishing the
wall-not prevented them if there was any illegal
activity-summoning order and cognizance orderimpugned-not examined the nature of allegations
in the FIR and evidences-impugned orders
quashed
5 All. Vivek Singh @ Monu & Anr. Vs. State of U.P. & Anr.
2035
Application allowed. (E-9)

List of Cases cited:

## Text

2034 INDIAN LAW REPORTS ALLAHABAD SERIES
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning the accused. Magistrate
had to carefully scrutinize the evidence
brought on record and may even himself put
questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused."

53. In the instant case, there is nothing
in the summoning order to show that the
Magistrate concerned perused the material
available
on
record
before
passing
summoning order. Hence the summoning
order is bad in the eyes of law and
resultantly it is not sustainable.

54. Thus, in view of the law laid down
by the Hon'ble Apex Court and the facts and
circumstances, as narrated above and also
with the assistance of the aforesaid
guidelines and keeping in view the nature
and gravity and the severity of the offence
which more particularly is a private dispute
and differences, it deems proper and meet
to the ends of justice that the proceeding of
the aforementioned case are liable to be
quashed.

55. Accordingly in view of the above
discussions and observations made, the
instant application under Section 482
Cr.P.C.
is
allowed.
The
impugned
summoning as well as cognizance order
dated 29.05.2009 passed by learned Special
Judge, C.B.I., Lucknow, whereby the
applicant has been summoned in Criminal
Case No.897 of 2008 (Gola Vs. Ambar
Singh and Others), under Sections 323,
505, 506, 420 I.P.C. and Section 3(2)(v) of
The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989,
Police Station Banthra, District Lucknow
as well as the criminal proceedings of the
aforesaid case are hereby quashed so far as
it relates to the present applicant.

56. No order as to the costs.

57. Office is directed to transmit a
copy of this order to the learned trial court
concerned immediately for necessary
compliance and information.
----------
(2024) 5 ILRA 2034
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 2705 of 2019

Vivek Singh @ Monu & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Ishan Baghel, Mohd. Khalid

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 304 IPC - Code of Criminal
Procedure, 1973-Section 482-Allegation-some
persons were demolishing a boundary wall of the
Old Employment Office-a peepal tree consequently
fell over a passerby -got injured and diedApplicants not named in the FIR-arrayed as
accused upon the St.ment u/s 161 Cr.P.C. of the
deceased's daughter-not eye witness-it is a case of
accident not u/s 304 IPC-no intention -Police were
present when the accused were demolishing the
wall-not prevented them if there was any illegal
activity-summoning order and cognizance orderimpugned-not examined the nature of allegations
in the FIR and evidences-impugned orders
quashed
5 All. Vivek Singh @ Monu & Anr. Vs. State of U.P. & Anr.
2035
Application allowed. (E-9)

List of Cases cited:

1. Inder Mohan Goswami Vs St. of Uttaranchal
(2007)12 SCC 1

2. Lalankumar Singh & ors. Vs St. of Mah.
reported in 2022 SCC Online SC 1383

3. Pepsi Foods Ltd. Vs Judicial Magistrate
reported in (1998) 5 SCC 749

4. Mehmood UL Rehman Vs Khazir Mohammad
Tunda & ors. ,(2015) 12 SCC 420

5. Mahendra Singh Dhoni Vs Yerraguntla
Shyamsundar reported in (2017) 7 SCC 760

6. St. of Haryana Vs Bhajan Lal reported in 1992
Supp (1) SCC 335

7. R.P. Kapoor Vs St. of Pun., AIR 1960 S.C. 866

8. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

9. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283

10. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918.

11. S.W. Palankattkar & ors. Vs St. of Bihar, 2002
(44) ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Ishan Baghel, learned
Counsel for the applicants, Shri Ashok
Kumar Singh, learned A.G.A-I for the
State-opposite party No.1.

2. As per the office report dated
12.01.2022 notice upon opposite party
No.2 has been served personally but till
date neither any counter affidavit has been
filed nor any counsel is present today to
represent opposite party No.2, the case was
taken up in the revised call for final
arguments.

3. The present application under
Section 482 Cr.P.C. has been filed on behalf
of the applicants, namely-Vivek Singh @
Monu and Mohd. Danish @ Mohd. Danish
Azad seeking quashing of the impugned
summoning and cognizance order dated
30.03.2016 and consequential orders dated
11.01.2018 and 11.07.2018 passed by
learned
Chief
Judicial
Magistrate,
Lucknow
and
charge
sheet
dated
13.07.2015 and the entire proceeding in
Criminal Case No.16768 of 2016; State vs.
Prabhat Agarwal & Others arising out of
Case Crime No.224 of 2014 under Section
304 I.P.C. and Section 3 of Prevention of
Damage of Public Property Act pending
before learned trial court.

4. Learned Counsel for the applicants
submitted that in the present case an FIR
dated 02.12.2014 was lodged by Constable
Govind
Narain,
P.S.
Naka
Hindola,
Lucknow against Prabhat Agawal and 5-6
unknown persons under section 304 IPC
and 3 of Prevention of Damage to Public
Property Act and in the FIR it has been
alleged that on 02.12.2014 at around 02:00
PM, the complainant alongwith another
constable were present on the place of
occurrence wherein one Prabhat Agarwal
alongwith 5 to 6 other persons were
demolishing a boundary wall of the Old
Employment Office, Charbagh. It is also
alleged in the FIR that a peepal tree was
standing on the foundation of the said
boundary wall, which consequently fell
over
a passerby namely Harinand
Jaiswal S/o Late Satya Narain, who
alongwith his wife was passing from the
place of occurrence, got injured and was
taken to Balrampur Hospital, where he
died.
2036 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned Counsel for the applicants
further submitted that the post-mortem of
the deceased Harinand Jaiswal was done on
03.12.2014 at KGMU, Lucknow in which
cause of death was shown due to antemortem head injury and apart from the
deceased Harinand Jaiswal no other person
including her wife who was going with
him, has sustained any single injury due to
the alleged incident as mentioned in the
FIR.

6. Learned Counsel for the applicants
further submitted that the applicants are not
named in the FIR. However, in order to
falsely implicate the applicants they were
arrayed as an accused, upon the statement
under Section 161 Cr.P.C. dated 23.01.2015
of the daughter of the deceased namely
Renu Jaiswal but as per the FIR, only the
wife of the deceased namely Rani Jaiswal
was going alongwith her husband at the
place of occurrence and therefore, she is
said to be an eye-witness of the incident and
the wife of the deceased in her statement
under 161 Cr.P.C. dated 22.12.2014, did not
mention names of the applicants as an
accused. However, for the first time she
mentioned the name of her daughter Renu
Jaiswal stating that she was also going with
them on the date of occurrence i.e. on
02.12.2014 only with the intention to give
gravity to the offence and falsely implicate
the applicants.

7. Learned Counsel for the applicants
further submitted that as per the FIR Renu
Jaiswal is not the eye-witness to the
aforesaid incident and the statement of
Renu Jaiswal being taken after one month
of the alleged incident and that too after the
statement of her mother shows that names
of the applicants have been dragged into the
case with an afterthought and in order to
falsely implicate the applicants.

8. Learned Counsel for the applicants
further submitted that the story set up by the
police in the FIR cannot be believed
inasmuch as it does not appeal to reason and
when the police personnel saw some illegal
activity i.e. demolition of the wall done by
the accused, as is mentioned in the FIR, no
preventive measures have been taken
against them, and notwithstanding, the
accused persons have committed the
alleged incident mentioned in the FIR the
police
personnel
remained
there
as
spectators.

9. Learned Counsel for the applicant
further submitted that the applicants were
not named as an accused in the aforesaid
FIR and for the very first time the
applicants got the knowledge of their
implication in the aforementioned crime as
an accused, when the police personnel have
approached their native place in pursuance
of Non-Bailable Warrant and proceeding
U/s 83 Cr.P.C. initiated by Learned Chief
Judicial Magistrate, Lucknow.

10. Learned Counsel for the
applicants further submitted that the
applicants
on
the
information
of
aforementioned case, inquired about the
case through counsel and got to know that
their names have been dragged in the case
after one month of the registration of the
FIR, moreover, the summons were also
been issued on some wrong addresses. He
further submitted that Non-bailable warrant
and proceeding under section 83 Cr.P.C.
have been initiated against the applicants,
the applicants for the first time came to
know about the present case when the
police personnel visited their native place
for their arrest.

11. Learned Counsel for the
applicants further submitted that the named
5 All. Vivek Singh @ Monu & Anr. Vs. State of U.P. & Anr.
2037
accused in the FIR namely Prabht Agarwal
has already been granted bail by the
Coordinate Bench of this Court vide order
dated 12.12.2018 passed in Criminal Misc.
Case No. 7177 (B) of 2018 (Prabhat
Agarwal versus State of U.P.).

12. Learned Counsel for the
applicants further submitted that the bare
perusal of FIR will show that the applicants
have not committed any crime and no
offence under section 304 IPC and Section
3 of Prevention of Damage to Public
Property Act is made out against them nor
any ingredients of the above sections are
attracted in the case of the present
applicants.

13. Learned Counsel for the
applicants further submits that the perusal
of the FIR would show that the FIR was
lodged against the Prabhat Agarwal and 56 unknown persons, however, neither the
FIR was lodged under section 34 or 149
IPC nor the Investigating Officer has filed
the chargesheet under section 34 or 149
IPC, which shows that applicants have been
falsely implicated as an accused due to
enmity and rivalry.

14. Learned Counsel for the
applicants further submitted that on
inquiring the background of the alleged FIR
the applicants have learnt from the sources
that there was a Civil Suit going between
one Raja Gopal Singh S/o Late Kunwar
Jagdish Singh, who is owner and in
possession of the land bearing Khasra No.
579 and 580, Mohalla Charbagh Station,
Ganeshganj, Lucknow, of which a Regular
Suit No. 1508 of 2014, Gopal Singh versus
Vice Chairmand, Lucknow Development
Authority & others is pending in the court
of Civil Judge (S.D.), Malihabad, Lucknow
and upon the land of Khasra No. 579, plot
no. 64/C-1 which is ancestral property of
Raja Gopal Singh, the illegal Auto and
Tempo stand is made with collusion of
police persons and strangers and illegal
recovery is made from them and upon
objection of co-accused Prabhat Agarwal,
the police on duty warned for dire
consequences to the co-accused Prabhat
Agarwal and to send him behind the bars in
forged cases. The co- accused Prabhat
Agarwal made several applications through
registered posts to the higher authority for
lodging the FIR against the police and
strangers but no action was taken on the
said applications.

15. Leaned Counsel for the applicants
further submitted that prior to the lodging
of the FIR on dated 22.11.2014 the police
of Police Station Naka Hindola, Lucknow
stopped the work of cleaning of the plot in
question, therefore, the co-accused Prabhat
Agarwal made an application dated
22.11.2014
to
the
City
Magistrate,
Lucknow but no heed was paid on the said
application by the concerned authorities.

16. Learned Counsel for the
applicants further submitted that if the
statement of the deceased's daughter is
taken to be true, it is hard to believe that she
is a resident of Kushinagar and there cannot
be any acquaintance with the applicants to
name them as an accused of the alleged
incident and as per the version of the FIR,
the wife of the deceased was the eye
witness and no one else was accompanying
them at the time of alleged incident, thus,
the story of the prosecution fails on this
ground also.

17. Learned Counsel for the
applicants further submitted that in the
aforesaid case chargesheet has been filed
against the applicants and one Mr. Prabhat
2038 INDIAN LAW REPORTS ALLAHABAD SERIES
Agarwal, however, the applicants have no
concern with the co-accused namely
Prabhat Agarwal nor they knew him
personally, the applicant No.1 was a
Research Scholar of Lucknow University
and pursuing Ph.D. from there, while,
applicant No. 2 was a student. The charge
sheet was filed against the applicants totally
ignoring the evidence on record and the
same was filed in a mechanical manner.

18. Learned Counsel for the
applicants further submitted that the
learned
Chief
Judicial
Magistrate,
Lucknow has passed the cognizance and
summoning order dated 30.03.2016 against
the applicants without application of
judicial mind and in a most mechanical and
routine manner, thus, in light of the facts
and circumstances of the case, the
impugned order dated 30.03.2016, order
dated 11.01.2018 & 11.07.2018 and charge
sheet dated 13.07.2015 and the entire
proceeding of the Criminal case No. 16768
of 2016, pending in the Court of Learned
Chief Judicial Magistrate, Lucknow, is
liable to be quashed and the present
application may be allowed as prima facie
no case is made out against the applicants.

19. Shri Ashok Kumar Singh, learned
A.G.A-I for the State-opposite party No.1
has opposed the argument advanced by
learned Counsel for the applicants and
submitted that the summoning order dated
30.03.2016 and consequential orders dated
11.01.2018 and 11.07.2018 are rightly
passed as prima facie offence is made out
against the applicants and the trial court has
rightly passed impugned summoning order
as well as the consequential orders after
considering the material placed on record,
thus, the applicants are not entitled for any
relief by this Court and the present
application may be rejected.

20. After considering the arguments
advanced by learned counsel for the
applicant and learned A.G.A-I for the Stateopposite party No.1 and after perusal of the
record, materials and arguments presented,
this Court finds that the summoning order
dated 30.03.2016 and consequential orders
dated 11.01.2018 and 11.07.2018, lacks
necessary legal and factual foundation.
There appears force in the argument of
learned Counsel for the applicants that Rani
Jaiwal, wife of the deceased, who was
accompanying the deceased at the time of
the alleged incident, has not taken the
names of the applicants in her statement
under
Section
161
Cr.P.C.
dated
22.12.2014. The applicants have reliably
learnt that a Regular Suit No.1508 of 2014
(Gopal Singh vs. Vice Chairman, Lucknow
Development Authority and others) is
pending in the Court of Civil Judge, Senior
Division,
Malihabad,
Lucknow.
The
disputed land is upon Khasra No. 579, Plot
No. 64/C-1 which is an ancestral property
of Raja Gopal Singh and an illegal auto
and tempo stand is made in collusion with
the police is being run on that land and
illegal recovery is made by the police
along with other persons. The name of the
applicants have been dragged in after one
month of the incident in the statement of
the daughter of the deceased, while the
daughter of the deceased is not the eyewitness of the alleged incident nor she was
accompanying the deceased and resides in
a different town i.e. Kushinagar, Uttar
Pradesh.

21. Further, the applicants contend
that the incident in question, involving the
demolition of a wall which led to a tree
falling and subsequently causing the death
of an individual, should be classified as an
accident and not as culpable homicide
amounting to murder.
5 All. Vivek Singh @ Monu & Anr. Vs. State of U.P. & Anr.
2039

22. Further, it is relevant to discuss
Section 299 of the I.P.C. which defines the
term 'culpable homicide' in the following
manner:-

"Whoever causes death by doing
an act with the intention of causing death,
or with the intention of causing such bodily
injury as is likely to cause death, or with the
knowledge that he is likely by such act to
cause death, commits the offence of
culpable homicide.

Explanation 1.--

A person who causes bodily
injury to another who is labouring under a
disorder, disease or bodily infirmity, and
thereby accelerates the death of that other,
shall be deemed to have caused his death.

Explanation 2.--

Where death is caused by bodily
injury, the person who causes such bodily
injury shall be deemed to have caused the
death, although by resorting to proper
remedies and skilful treatment the death
might have been prevented.

Explanation 3.--

The causing of the death of child
in the mother's womb is not homicide. But
it may amount to culpable homicide to
cause the death of a living child, if any part
of that child has been brought forth, though
the child may not have breathed or been
completely bom.

'Culpable homicide' according to
section 299, I.P.C. has the following
ingredients:

1. Causing of death of a human
being;

2. Such death must have been
caused by doing an act;

3. The act must have been done:

(i) with the intention of causing
death;

(ii) with the intention of causing
such bodily injury as is likely to cause
death; or

(iii) with the knowledge that the
doer is likely by such act to cause death."

23. It is further observed here that
Section 304 IPC deals with culpable
homicide not amounting to murder, which
requires either the intention to cause death
or knowledge that the act is likely to cause
death. For a conviction under this section,
it must be established that the accused had
either of these mental states. Section 304
I.P.C. read as under:-

"Section 304 Indian Penal
Code, 1860

Whoever
commits
culpable
homicide not amounting to murder shall be
punished with imprisonment for life, or
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine, if the act by
which the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death;

Or with imprisonment of either
description for a term which may extend to
ten years, or with fine, or with both, if the
act is done with the knowledge that it is
likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause death."

24. Thus, upon reviewing the facts
and circumstances of the present case, the
following points are considered:-

(i)
There
is
no
evidence
indicating that the applicants intended to
cause death or had knowledge that their
actions were likely to result in death. The
demolition of a wall, does not inherently
2040 INDIAN LAW REPORTS ALLAHABAD SERIES
suggest an intention or knowledge of
causing death.

Foreseeability: The falling of the
tree was an unforeseen consequence of the
demolition. There is no indication that the
applicants
could
have
reasonably
anticipated this specific outcome. In fact,
they were not present on the spot at the time
of the alleged incident.

(ii) The sequence of events
leading to the death appears to be
accidental. The demolition work was
conducted without any apparent negligence
directly linked to the fatal outcome.
Accidents, by their nature, are unforeseen
and unintentional.

(iii)
Given
the
absence
of
intention or knowledge to cause death, and
considering
the
unforeseeable
and
accidental nature of the incident, it is
determined that the incident qualifies as an
accident. The criteria for culpable homicide
under Section 304 IPC are not met.

25. After a thorough examination of
the facts and circumstances presented in the
petition, the following conclusions are
drawn:

(i)Absence
of
Direct
Involvement and Malafide Intent:

(a) The applicants were not
named
in
the
original
FIR
dated
02.12.2014,
which
was
lodged
by
Constable Govind Narain against Prabhat
Agarwal and 5-6 unknown individuals. The
FIR does not implicate the applicants
directly.
Their
names
surfaced
subsequently through a statement made by
the deceased's daughter, Renu Jaiswal, on
23.01.2015, which was recorded nearly
after a month of the incident. This delay and
the
circumstances
surrounding
her
statement
raise
questions
about
the
credibility and timing of their implication
and it is also observed here that in the
original version of the FIR it has been
alleged that the deceased was only
accompanied by his wife no one else was
with him at the time of alleged incident,
even though, she was not the eye witness of
the alleged incident.

(b) The primary eyewitness, Rani
Jaiswal (wife of the deceased), in her
statement under Section 161 Cr.P.C. dated
22.12.2014, did not mention the name of
the applicants as being involved in the
incident. It was only later that her daughter
Renu Jaiswal introduced new names,
creating
a
contradiction.
Such
contradictions, coupled with the delayed
recording
of
statements,
suggest
an
afterthought
rather
than
a
genuine
identification of the accused.

(c) For a charge under Section
304 IPC (culpable homicide not amounting
to murder), there must be evidence that the
accused had the intention or knowledge that
their actions were likely to cause death. In
this case, there is no evidence to indicate
that the applicants had any such intent or
knowledge. The demolition of the wall,
which resulted in the falling of the peepal
tree and the consequent death of Harinand
Jaiswal who was passing the place of
alleged incident with his wife, appears to be
an
unforeseen
and
unintended
consequence.

(d)
The
incident
is
best
characterized as an accident. The falling of
the tree was not a foreseeable outcome of
the demolition activity. There is no
indication that the applicants could have
reasonably
anticipated
this
specific
consequence. Accidents, by their nature,
are unforeseen and unintentional, and the
sequence of events leading to the death of
Harinand
Jaiswal
aligns
with
this
characterization.
5 All. Vivek Singh @ Monu & Anr. Vs. State of U.P. & Anr.
2041

(e) The applicants became aware
of their implication in the case only after the
issuance of non-bailable warrants and
proceedings under Section 83 Cr.P.C.
initiated by the Learned Chief Judicial
Magistrate, Lucknow. The summons were
issued to incorrect addresses, causing
further
procedural
irregularities.
The
applicants' lack of prior knowledge and
involvement in the incident, coupled with
these anomalies, underscores the necessity
of a detailed judicial review, both of them
were students and were unaware about the
alleged incdient.

(ii) Misapplication of Legal
Provisions:

(a) The FIR and subsequent
chargesheet do not invoke Section 34 (Acts
done by several persons in furtherance of
common intention) or Section 149 IPC
(Every member of unlawful assembly
guilty of offense committed in prosecution
of common object), which would typically
be relevant in cases involving multiple
accused. This omission indicates that the
prosecution's case lacks the necessary legal
foundation to substantiate the aplicants'
involvement under the claimed sections.

26. Thus, given these considerations,
it is clear that the applicants have been
wrongfully implicated. The evidence does
not support their involvement in any crime
under Section 304 IPC or Section 3 of the
Prevention of Damage to Public Property
Act. The circumstances point towards an
accidental death rather than a culpable
homicide, and the applicants' names appear
to have been added without substantial
evidence or just cause.

27. Further, learned Chief Judicial
Magistrate, Lucknow has failed to make an
enquiry on fact which is mandatory before
issuing a summoning order. On this ground
alone
the
proceedings
as
also
the
summoning order dated 30.03.2016 as well
as the orders dated 11.01.2018 and
11.07.2018 against the applicants appear to
be against the settled prepositions of law.

28. Further, while passing the
summoning order dated 30.03.2016; no
reason has been assigned by learned Chief
Judicial Magistrate, Lucknow. The said
order does not even mention the content of
the FIR and nature of allegation and thus, it
reflects
that
learned
Chief
Judicial
Magistrate, Lucknow has not applied its
mind while summoning the applicants to
face trial and he has failed to enquire even
briefly the question as to whether any
culpability be imputed to the applicants or
other accused persons.

29. Further, the Hon'ble Supreme
Court in the case Inder Mohan Goswami v.
State of Uttaranchal (2007)12 SCC 1 has
been pleased to hold that it would be
relevant to keep into mind the scope and
ambit
of
section
482
Cr.PC
and
circumstances under which the extra
ordinary power of the court inherent therein
as provisioned in the said section of the
Cr.P.C. can be exercised, para 23 is being
quoted here 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
2042 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) to otherwise secure the ends
of justice."

30. Further, the Hon'ble the Supreme
Court in the case of Lalankumar Singh
and Others vs. State of Maharashtra
reported in 2022 SCC Online SC 1383 has
specifically held in paragraph No.38 that
the order of issuance of process is not an
empty formality. The Magistrate is required
to apply his mind as to whether sufficient
ground for proceeding exists in the case or
not. Paragraph No.38 of Lalankumar
Singh and Others (supra) is being quoted
hereunder:-

"38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this Court
in the case of Sunil Bharti Mittal v. Central
Bureau of Investigation, which reads thus:

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he shall
issue process against the accused.

52. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he thinks
that it is unlikely to result in a conviction.

53.
However,
the
words
"sufficient
ground
for
proceeding"
appearing in Section 204 are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case
against the accused, though the order need
not contain detailed reasons. A fortiori, the
order would be bad in law if the reason
given turns out to be ex facie incorrect.""

31. Further, the Hon'ble Supreme
Court in the case of Pepsi Foods Ltd. v.
Judicial Magistrate reported in (1998) 5
SCC 749 has been pleased to observe in
paragraph No.28, which is reproduced
hereinunder:-

"28. Summoning of an accused in
a criminal case is a serious matter.
Criminal law cannot be set into motion as
a matter of course. It is not that the
complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate
summoning the accused must reflect that he
5 All. Vivek Singh @ Monu & Anr. Vs. State of U.P. & Anr.
2043
has applied his mind to the facts of the case
and the law applicable thereto. He has to
examine the nature of allegations made in
the complaint and the evidence both oral
and documentary in support thereof and
would
that
be
sufficient
for
the
complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."

32. Further, the Hon'ble Supreme
Court in the case of Mehmood UL Rehman
v. Khazir Mohammad Tunda and Others
reported in (2015) 12 SCC 420 has been
pleased to observe in paragraph No.20,
which is reproduced hereinunder:-

"20. The extensive reference to
the case law would clearly show that
cognizance of an offence on complaint is
taken for the purpose of issuing process to
the accused. Since it is a process of taking
judicial notice of certain facts which
constitute an offence, there has to be
application of mind as to whether the
allegations
in
the
complaint,
when
considered along with the statements
recorded or the inquiry conducted thereon,
would constitute violation of law so as to
call a person to appear before the criminal
court. It is not a mechanical process or
matter of course. As held by this Court in
Pepsi Foods Ltd. [Pepsi Foods Ltd. v.
Judicial Magistrate, (1998) 5 SCC 749 :
1998 SCC (Cri) 1400] to set in motion the
process of criminal law against a person is
a serious matter."

33. Further, the Hon'ble Supreme
Court in the case of Mahendra Singh
Dhoni
v.
Yerraguntla
Shyamsundar
reported in (2017) 7 SCC 760 has been
pleased to observe in paragraph No.13,
which reads as under:-

13. Before parting with the case,
we would like to sound a word of caution
that the Magistrates who have been
conferred with the power of taking
cognizance and issuing summons are
required to carefully scrutinize whether the
allegations
made
in
the
complaint
proceeding meet the basic ingredients of the
offence; whether the concept of territorial
jurisdiction is satisfied; and further
whether the accused is really required to be
summoned. This has to be treated as the
primary judicial responsibility of the court
issuing process.

34. Further, Hon'ble the Supreme
Court has provided guidelines in case of
State of Haryana Vs. Bhajan Lal reported
in 1992 Supp (1) SCC 335 for the exercise
of power under Section 482 Cr.P.C. which
is extraordinary power and used separately
in following conditions:-

"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
2044 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

35. Further the Hon'ble Supreme
Court has also laid down the guidelines
where the criminal proceedings could be
interfered and quashed in exercise of its
power by the High Court in the following
cases:- (i) R.P. Kapoor Vs. State of Punjab,
AIR 1960 S.C. 866, (ii) State of Bihar Vs.
P.P. Sharma, 1992 SCC (Crl.)192, (iii)
Zandu Pharmaceutical Works Ltd. Vs.
Mohd. Saraful Haq and another, (Para10) 2005 SCC (Cri.) 283 and (iv)
Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra, AIR 2021 SC 1918.

36. In S.W. Palankattkar & others Vs.
State of Bihar, 2002 (44) ACC 168, it has
been held by the Hon'ble Apex Court that
quashing of the criminal proceedings is an
exception than a rule. The inherent powers
of the High Court itself envisages three
circumstances under which the inherent
jurisdiction may be exercised:-(i) to give
effect an order under the Code, (ii) to
prevent abuse of the process of the court ;
(iii) to otherwise secure the ends of justice.
The power of High Court is very wide but
should be exercised very cautiously to do
real and substantial justice for which the
court alone exists.

37. Thus, in view of the law laid down
by the Hon'ble Supreme Court and in light
of the observations and discussions made
above and keeping in view the facts and
circumstances of the case, and from the
perusal of the record, the impugned
summoning and cognizance order dated
30.03.2016 and consequential orders dated
11.01.2018 and 11.07.2018 passed by
learned
Chief
Judicial
Magistrate,
Lucknow
and
charge
sheet
dated
13.07.2015 and the entire proceeding in
Criminal Case No.16768 of 2016; State vs.
Prabhat Agarwal & Others, Case Crime
No.224 of 2014 under Section 304 I.P.C.
and Section 3 of Prevention of Damage to
Public Property Act are liable to be quashed
as the story set up by the police in the FIR
cannot be believed inasmuch as it does not
appeal to reason. When the police
personnel saw some illegal activity i.e.
5 All. Waris Ali Vs. The State of U.P. & Anr.
2045
demolition of wall is done by the accused,
no one prevented them, instead it appears
that they remained there as spectators and a
20 years old peepal tree would not fall
down if an adjacent wall is being
demolished. Further, there was no intention
on the part of the accused-applicants to
cause any danger to anybody and even if it
is believed that a tree falls down on the road
and one passer by sustains injury(ies), it
would be an accident and cannot be a case
under Section 304 IPC. and also taking into
account the role of the police, allegations in
the FIR and the death of the deceased
occurred because of falling of peepal tree
on the deceased demonstrates that no
knowledge can be attributed to the accused
that the tree would fall on a particular
direction where a passer-by would be
passing through the road at that particular
time. The police were present when the
accused were demolishing the wall. It was
incumbent upon them to prevent the
accused if there was any illegal activity.
From the perusal of the FIR, it appears that
the police did not take any action to prevent
demolition of the wall.

38. Further, in the present case learned
Chief Judicial Magistrate, Lucknow has
failed to apply his judicial mind to the facts
of the case and the law applicable thereto
while summoning the applicants and
issuing Non-bailable warrants, the Chief
Judicial Magistrate has not examined the
nature of allegations made in the FIR and
the evidences both oral and documentary in
support thereof.

39. Accordingly, the the impugned
summoning and cognizance order dated
30.03.2016 and consequential orders dated
11.01.2018 and 11.07.2018 passed by
learned
Chief
Judicial
Magistrate,
Lucknow
and
charge
sheet
dated
13.07.2015 and the entire proceeding in
Criminal Case No.16768 of 2016; State
vs. Prabhat Agarwal & Others arising out
of Case Crime No.224 of 2014 under
Section 304 I.P.C. and Section 3 of
Prevention of Damage to Public Property
Act pending in the court of Chief Judicial
Magistrate,
Lucknow
are
hereby
quashed.

40. For the reasons discussed above,
the instant application under Section 482
Cr.P.C. filed by the applicants is allowed
in respect of the instant applicant,
namely-Vivek Singh @ Monu and Mohd.
Danish @ Mohd. Danish Azad.

41. Office is directed to transmit a
copy of this order to the trial court
concerned for its necessary compliance.

42. No order as to cost(s).
---------
(2024) 5 ILRA 2045
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 2828 of 2013

Waris Ali ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Neeraj Kumar, Ambrish Singh Yadav, Amit
Jaiswal Ojus Law, Gaurav Saxena, Juhi
Saxena, Lalla Chauhan, Rajni Saxena, Rishi
Saxena, Sheena Saxena, Tanveer Ahmad
Siddiqu

Counsel for the Opposite Parties:
G.A., Ratnesh Chandra