BADE LAL VISHWAKARMA AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 482 No. - 27748 of 2024

Bade Lal Vishwakarma And 3 Others
                                                            .....Applicant(s)
                                  Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                   :   Om Prakash Shukla
Counsel for Opposite Party(s)              :   G.A., Vikas Srivastava

Court No. - 80
                  HON'BLE CHAWAN PRAKASH, J.

1. Heard Sri Om Prakash Shukla, learned counsel for the applicants, Sri
Vikas Srivastava, learned counsel for opposite party No.2, learned A.G.A.
for the State.

2. The present application under Section 482 Cr.P.C. has been filed for
quashing/setting aside the entire proceedings of Complaint Case
No.2731/2022 (Priay Dwivedi Vs. Bade Lal Vishwakarma and others)
under Sections 354, 323, 504, 506 I.P.C., Police Station Naini, District
Prayagraj, pending in the Court of Judicial Magistrate, Court No.4,
Prayagraj.

3. Learned counsel for the applicants submits that applicant No.1 is an
advocate practising in taxation and earns his livelihood by filing income
tax returns and doing accounting work for small business entities.
Applicant No.2 is a housewife. Applicant No.3, namely Manjari
Vishwakarma, is a student of Class 12th and his date of birth is
09.11.2007, while applicant No.4, namely Harsh Vishwakarma, is a
student of Class 10th and his date of birth is 21.03.2010. Thus, applicant
Nos.3 and 4 were minors on the date of the alleged incident. It is further
submitted that opposite party No.2 is a neighbour of the applicants and
there is enmity between the parties. According to the applicants, The
opposite party No.2 is a quarrel some lady and not having a good
reputation in the locality and, with an ulterior motive, has falsely
implicated the applicants in the present complaint case as a counterblast
to the proceedings initiated against her.
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4. Learned counsel for the applicants submits that applicant No.1 had
earlier moved an application under Section 156(3) Cr.P.C. on 01.11.2021
before the Court of Additional Chief Judicial Magistrate, Court No.2,
Allahabad with regard to the incidents dated 26.09.2021 and 27.09.2021.
The said application was treated as a complaint case and, after recording
the statements of the complainant under Section 200 Cr.P.C. and of the
witnesses under Section 202 Cr.P.C., opposite party No.2 and her
husband were summoned under Sections 323 and 504 I.P.C. It is next
submitted that, in respect of another incident dated 11.10.2022 and
12.10.2022, applicant No.1 also got lodged an FIR being Case Crime No.
579 of 2022, at Police Station Naini, District Prayagraj, against opposite
party No.2, her husband Adesh Dwivedi, and two other persons. After
investigation, the Investigating Officer submitted charge-sheet against
opposite party No.2 and her husband under Sections 341, 323, 504, 506,
427 and 308 I.P.C. It is therefore, contended that the opposite party No.2
with an ulterior motive and making a counter blasts filed a complaint case
against the applicants regarding the incident dated 12.10.2022. In the
complaint, opposite party No.2 made general allegations that applicant
No.1 used to make obscene gestures towards her and molest her, and that
despite making complaints to the police, no action was taken. However,
so far as the specific incident dated 12.10.2022 is concerned, there is no
categorical allegation in the complaint that any obscene gesture or
molestation was made on that date. On the contrary, the specific
allegation regarding the incident dated 12.10.2022 is that the applicants
assaulted opposite party No.2 and her husband by kicks and fists and also
stabbed them with a knife and screwdriver. It is submitted that despite
alleging such a serious assault, neither opposite party No.2 nor her
husband got themselves medically examined, and no injury report or
medical evidence has been brought on record in support of the complaint
allegations.

5. Learned counsel for the applicants further submits that opposite party
No.2 was well acquainted with the entire family of the applicants and was
fully aware of the fact that applicant Nos.3 and 4 were minors at the time
of incident. However, in the complaint, she deliberately concealed their
actual ages and incorrectly described applicant No.3 as aged about 20
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years and applicant No.4 as aged about 18 years. It is further argued that
the present complaint pertains to the alleged incident dated 12.10.2022. It
is also submitted that after recording the statement of opposite party No.2
under Section 200 Cr.P.C. and the statements of the witnesses under
Section 202 Cr.P.C., the learned Magistrate summoned applicant No.1
under Sections 354, 323, 504 and 506 I.P.C., and applicant Nos.2 to 4
under Sections 323, 504 and 506 I.P.C. It is contended that no prima facie
case for the aforesaid offences, particularly under Section 354 I.P.C., is
made out against the applicants and, therefore, the impugned summoning
order is liable to be set aside.

6. Per contra, learned counsel for opposite party No.2 opposed the prayer
made on behalf of the applicants and submitted that the learned
Magistrate has not committed any illegality in passing the impugned
summoning order. It is submitted that opposite party No.2 resides in the
neighbourhood of the applicants and that the applicants had been
continuously harassing her and her family members. It is further
submitted that applicant No.1 used to make obscene gestures towards
opposite party No.2 and had also molested her. Although complaints were
made to the police but no action was taken by the police. It is further
submits that on 12.10.2022 at about 4:15 p.m., when opposite party No.2
was at a short distance from her house along with her husband, the
applicants, accompanied by 3-4 unknown persons, came there and
assaulted them by kicks and fists and also attacked them with a knife and
screwdriver. It is submitted that opposite party No.2 examined herself
under Section 200 Cr.P.C. and also produced her witnesses, namely,
Sudhir Singh and Adesh Dwivedi, whose statements were recorded under
Section 202 Cr.P.C. Thereafter, the learned Magistrate has summoned the
applicants. It is also submitted that the present matter is a cross-case and,
therefore, no interference is called for at this stage.

7. Learned counsel for opposite party No.2 has placed reliance upon the
judgment of this Court passed in Criminal Revision No. 234 of 2006
(Durga Prasad & Others Vs. State of U.P. & Anr.) decided on
06.12.2012, and has referred to paragraph 13 thereof, which reads as
under:
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     "13- I have examined and analysed the impugned order taking into
     consideration the above settled legal position. On a cursory perusal of the
     complaint it appears that the facts disclosed therein prima facie constitute
     commission of offence of which learned C.J. M. is competent to take
     cognizance. On perusal of statements of the complainant and the
     witnesses, recorded by the C.J.M. under Section 200 Cr.P.C, it appears
     that   there   is   prima     facie   evidence    against     the   accused
     persons/revisionists, who according to the complainant have committed
     the offence. Thus, there is a sufficient ground for issuing process against
     the accused persons/revisionists under Section 204 Cr.P.C. At the stage of
     Section 203/204 Cr.P.C. the Magistrate has to see that a prima facie case
     is made out and there is a prima facie evidence against the person, who
     according to the complainant has committed the offence. The test is-
     Whether there was sufficient ground for proceeding and not whether
     there was sufficient ground for conviction. The apex court in the cases of
     Chandra Deo Singh, Nirmaljit Singh Hoon, R.G. Ruia and Vadilal
     Panchal, re-affirmed and upheld in the case of Shievjee Singh (Supra),
     held that the Magistrate at the stage of Chapter XV of the Cr.P.C. must
     consider whether there is a sufficient ground for proceeding and that
     whether there was prima facie evidence or not. Thus, the impugned order
     passed by the learned C.J.M. is absolutely within the four corners of law
     and finds full support from the case laws cited as above.

     The arguments made on behalf of the learned counsel for the revisionists
     that the C.J.M. has failed to apply his mind as he has not considered the
     delay caused in filing the complaint are out of preview of Chapter XV and
     Section 204 Cr.P.C., inspire no attraction. The ratio laid down in M/s
     Pepsi Foods Ltd. (Supra) has no application to the facts and
     circumstances of this case. In M/s Pepsi Foods Ltd. complaint was filed
     under the Prevention of Food Adulteration Act (Since Repealed) by a
     purchaser of Lehar Pepsi product, which was found adulterated. Under
     the said Act a complaint can only be filed by the Food Inspector, who has
     taken the sample and the sample was found adulterated."

8. He has also placed reliance upon the judgment of this Court passed in
Application U/S 482 No.5705 of 2006 (Sanjeev Kumar and others Vs.
State of U.P. and Another), decided on 17.01.2020 and has referred to
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paragraph Nos.14, 23 and 26 thereof, which are quoted below

     "14. The words "all his witnesses" contained in Sub sec (2), proviso to
     Section 202 Cr.P. C. cannot be read as "all witnesses". It has been held in
     Satyadeo Pandey and others v. State of U. P. and another, 1987 (1)
     AWC 572 that words "all his witnesses" connote that all the witnesses of
     the complainant, associated or connected with his interest and those
     witnesses who are material and relevant to prove prosecution case, must
     be examined. The words "all his witnesses" under proviso to Section 202
     Cr.P.C. do not refer literally to all prosecution witnesses in number
     rather all his witnesses (i.e. of complainant) and to whom he considers
     material to prove his case.

     23. In Mohinder Singh vs Gulwant Singh And Others, 1992 (2) SCC
     213, Court said that the scope of inquiry under Section 202 Cr.P.C. is
     extremely restricted. It is only to find out the truth or otherwise of the
     allegations made in the complaint in order to determine whether process
     should be issued or not under Section 204 Cr.P.C. or whether the
     complaint should be dismissed by resorting to Section 203 Cr.P.C. on the
     footing that there is no sufficient ground for proceeding on the basis of
     the statements of complainant and his witnesses, if any. But the enquiry at
     this stage does not partake the character of a full dress trial which can
     only take place after process is issued under Section 204 Cr.P.C. calling
     upon the proposed accused to answer the accusation made against him
     for adjudging the guilt or otherwise of the said accused person. Further,
     the question, whether evidence is adequate for supporting conviction, can
     be determined only at the trial and not at the stage of enquiry
     contemplated under Section 202 Cr.P.C. To say in other words, during
     the course of enquiry under Section 202 of Cr.P.C., Magistrate has to
     satisfy himself simply on the evidence adduced by prosecution, whether
     prima facie case has been made out so as to put the proposed accused on
     a regular trial. At that stage no detailed enquiry is called for.

     26. Similar view has been taken in Vijay Dhanuka Etc vs Najima
     Mamtaj Etc, 2014 (14) SCC 638 which has been followed in Abhijit
     Pawar Vs. Hemant Maudhukar Nimbalkar and Another, 2017 (3) SCC
     528."
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9. I have considered the submissions advanced by learned counsel for the
parties and perused the material brought on record.

10. From the record, it transpires that opposite party No.2, who resides in
the neighbourhood of the applicants, filed the present complaint alleging
that the applicants had been continuously harassing her and her family
members and that applicant No.1 used to make obscene gestures towards
her and molest her. It was further alleged that on 12.10.2022 at about 4:15
p.m., while she was at a short distance from her house along with her
husband, the applicants, accompanied by 3-4 unknown persons, assaulted
them by kicks and fists and also attacked them with a knife and
screwdriver, thereby causing injuries. Thereafter, opposite party No.2
examined herself under Section 200 Cr.P.C. and also produced witnesses
under Section 202 Cr.P.C., thereafter the learned Magistrate passed the
impugned summoning order summoning applicant No.1 under Sections
354, 323, 504 and 506 I.P.C., and applicant Nos.2 to 4 under Sections
323, 504 and 506 I.P.C. However, upon perusal of the complaint and the
statements recorded under Sections 200 and 202 Cr.P.C., it appears that
so far as the specific incident dated 12.10.2022 is concerned, there is no
clear and specific allegation disclosing the commission of an offence
under Section 354 I.P.C. against applicant No.1. Although a general
allegation has been made that applicant No.1 used to make obscene
gestures and molest opposite party No.2, no specific date, time, month or
year in relation to such alleged acts has been disclosed either in the
complaint or in the statement under Section 200 Cr.P.C.

11. On the other hand, the specific allegations regarding the incident
dated 12.10.2022 are confined to assault by kicks, fists, knife and
screwdriver. Even in relation to the said allegations of assault, no medical
report or injury report of opposite party No.2 or her husband has been
filed in support thereof. It is also noteworthy that applicant Nos.3 and 4
were admittedly minors on the date of the incident, their dates of birth are
09.11.2007 and 21.03.2010 respectively, whereas in the complaint they
have been described as 20 years and 18 years respectively.

12. The facts of the present case are clearly distinguishable from the facts
of the judgments relied upon by learned counsel for opposite party No.2.
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                                    In the present case, the allegations levelled in the complaint do not find
                                    due corroboration from the statement of opposite party No.2 recorded
                                    under Section 200 Cr.P.C. and the statements of the witnesses recorded
                                    under Section 202 Cr.P.C. Further, no medical or injury report has been
                                    filed in support of the alleged injuries said to have been sustained by
                                    opposite party No.2 and her husband.

                                    13. In such view of the matter, this Court is of the opinion that the
                                    material brought on record does not constitute sufficient ground for
                                    proceeding against the applicants and the impugned summoning order,
                                    therefore, cannot be sustained in the eyes of law. Accordingly,
                                    considering the totality of the facts and circumstances of the case, the
                                    impugned summoning order dated 24.7.2024 is hereby set aside.

                                    14. Consequently, the entire proceedings of the aforesaid complaint case
                                    are also hereby quashed.

                                    15. The present application is accordingly, allowed.



                                                                                           (Chawan Prakash,J.)
                                    March 19, 2026
                                    Md Faisal




Digitally signed by :-
MOHD FAISAL
High Court of Judicature at Allahabad