Uttarakhand High Court
Under Section 482 Cr.P.C vs State Of Uttarakhand And Another on 10 November, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2025:UHC:9751
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Miscellaneous Application No. 1314 of 2023
Under Section 482 Cr.P.C.
Pramendra Dobal. ......... Applicant.
Versus
State of Uttarakhand and Another. ........Respondents.
With
Criminal Miscellaneous Application No. 1281 of 2015
Under Section 482 Cr.P.C.
Ms. Mukta Mehra. ......... Applicant.
Versus
State of Uttarakhand and Others. ........Respondents.
Present:
Mr. Piyush Garg, learned counsel for the applicant in C482 No. 1314 of 2023.
Mr. G.S. Sandhu, learned Additional Advocate General with Mr. Himanshu Sain and Mr. Deepak
Bhardwaj, learned Brief Holder for the State.
Mr. Saurabh Kumar Pandey and Mrs. Manisha Bhandari, learned counsel for the respondent in C482
No. 1314 of 2023.
Mr. Aditya Singh, learned counsel for the applicant in C482 No. 1281 of 2015.
Mr. Arvind Vashistha, learned senior counsel for the respondent in C482 No. 1281 of 2015.
Mr. Lalit Sharma, learned counsel for the C.B.I.
Hon'ble Mr. Justice Rakesh Thapliyal, J.
1. Mr. Piyush Garg, learned counsel for the applicant, argued
at length by placing reliance on various judgments of the Hon'ble
Apex Court as well as of the Allahabad High Court and by
placing reliance he argued that the revisional court exceeded its
power and jurisdiction by taking cognizance on additional
documents, which were never been part of the investigation. He
submits that the Magistrate concerned while rejecting the protest
petition considered all the materials collected by the Investigating
Officer while submitting the final report; however, the revisional
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court by allowing the application under Section 391 of Cr.P.C.
accepted the additional documents, which infact were not part of
the investigation. He submits that the order allowing the
application under Section 391 of Cr.P.C. was challenged by the
applicant in another C482 petition No. 652 of 2016, wherein, the
liberty was given to the present applicant to raise all submissions
before the court concerned and the relevancy of the documents
cannot be examined at this stage since the revision is pending for
adjudication.
2. In reference to the issue with regard to scope of revisional he
further placed reliance of another judgment of the Hon'ble Apex
Court in the case of Vikas Rathi vs. State of U.P. and Another
(2023) SCC Online SC 211 by giving reference of paragraph 15,
which is quoted hereinunder:
"15. One of the arguments raised by learned counsel appearing
for the parties was that in the case in hand, the High Court
instead of appreciating the material placed on record by the
parties in the form of evidence to find out as to whether a case
was made out for summoning of the appellant as an additional
accused, remitted the matter back to the trial court for
consideration afresh. Remand in such a matter will only result in
prolonging the litigation. The High Court only recorded that
reasons assigned by the trial court for rejecting the application
were not sufficient. To avoid delay, it would have been proper
exercise of power in case the High Court would have considered
the material and opine as to whether a case was made out for
summoning of additional accused. Whatever reasons have been
recorded by the trial court in the order so passed, may not have
been happily worded to the satisfaction of the High Court, but
that error could have been corrected in exercise of revisional
power."
3. One more judgment has also been relied upon i.e. in the
case of SanjaySinh Ramrao Chavan vs. Dattatray Gulabrao
Phalke and Others (2015) 3 SCC 123, paragraph 14 of which
is quoted hereinbelow:
"14. In the case before us, the learned Magistrate went through
the entire records of the case, not limiting to the report filed by
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the police and has passed a reasoned order holding that it is not
a fit case to take cognizance for the purpose of issuing process to
the appellant. Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly unreasonable
or there is nonconsideration of any relevant material or there is
palpable misreading of records, the revisional court is not
justified in setting Page 16 16 aside the order, merely because
another view is possible. The revisional court is not meant to act
as an appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do justice in
accordance with the principles of criminal jurisprudence.
Revisional power of the court under Sections 397 to 401 of Cr.PC
is not to be equated with that of an appeal. Unless the finding of
the court, whose decision is sought to be revised, is shown to be
perverse or untenable in law or is grossly erroneous or glaringly
unreasonable or where the decision is based on no material or
where the material facts are wholly ignored or where the judicial
discretion is exercised arbitrarily or capriciously, the courts may
not interfere with decision in exercise of their revisional
jurisdiction."
4. He further argued that so far as the necessity of the
statement recorded under Section 164 of Cr.P.C. of the victim is
concerned, recording of such statement is not so fatal and will not
vitiate the investigation in view of Section 460 and 461 of Cr.P.C.
In a reference to the relevancy of the statement recorded under
Section 164 of Cr.P.C. he placed reliance in Hon'ble Apex Court's
decision in the case of Vineet Kumar and Others vs. State of
Uttar Pradesh and Another (2017) 13 SCC 369 by giving reference
to paragraphs 40, 40.3 and 40.4, which reads as under:
"40. Reference to the judgment of this Court in Prashant Bharti
vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for the
present case. In the above case the complainant lady aged 21
years lodged an FIR under Section 328 and 354 IPC with regard
to the incident dated 15.02.2007. She sent a telephonic
information on 16.02.2007 and on her statement FIR
under Sections 328 and 354 IPC was registered against the
appellant. After a lapse of five days on 21.02.2007 she gave a
supplementary statement alleging rape by the appellant on
23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section
164 Cr.P.C. of the prosecutrix was recorded. Police filed charge-
sheet under Section 328, 324 and 376 IPC. Charge-sheet although
mentioned that no proof in support of crime under Section
328/354 could be found. However, on the ground of statement
made under Section 164 Cr.P.C. charge-sheet was submitted.
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40.3 The appeal was filed against the aforesaid judgment of the
High Court by the accused contending that there was sufficient
material collected in the investigation which proved that
allegations were unfounded and the prosecution of the appellant
was an abuse of process of the Court. In paragraph 23 this Court
noted several circumstances on the basis of which this Court
held that judicial conscience of the High Court ought to have
persuaded it to quash the criminal proceedings. This Court
further noticed that Investigating Officer has acknowledged,
that he could not find any proof to substantiate the charges. The
charge-sheet had been filed only on the basis of the statement of
the complainant/prosecutrix under Section 164 Cr.P.C. In
paragraphs 24 and 25 of the judgment following was stated:
"24. Most importantly, as against the aforesaid allegations, no
pleadings whatsoever have been filed by the complainant.
Even during the course of hearing, the material relied upon by
the accused was not refuted. As a matter of fact, the
complainant/prosecutrix had herself approached the High
Court, with the prayer that the first information lodged by her,
be quashed. It would therefore be legitimate to conclude, in the
facts and circumstances of this case, that the material relied
upon by the accused has not been refuted by the
complainant/prosecutrix. Even in the charge sheet dated
28.6.2007, (extracted above) the investigating officer has
acknowledged, that he could not find any proof to substantiate
the charges. The charge-sheet had been filed only on the basis
of the statement of the complainant/prosecutrix under Section
164 of the Cr.P.C.
25. Based on the holistic consideration of the facts and
circumstances summarized in the foregoing two paragraphs;
we are satisfied, that all the steps delineated by this Court in
Rajiv Thapar's case (supra) stand -satisfied. All the steps can
only be answered in the affirmative. We therefore have no
hesitation whatsoever in concluding, that judicial conscience of
the High Court ought to have persuaded it, on the basis of the
material available before it, while passing the impugned order,
to quash the criminal proceedings initiated against the accused-
appellant, in exercise of the inherent powers vested with it
under Section 482 of the Cr.P.C. Accordingly, based on the
conclusions drawn hereinabove, we are satisfied, that the first
information report registered under Sections 328, 354and 376 of
the Indian Penal Code against the appellant-accused, and the
consequential chargesheet dated 28.6.2007, as also the framing
of charges by the Additional Sessions Judge, New Delhi on
1.12.2008, deserves to be quashed. The same are accordingly
quashed."
40.4 Thus, above was the case where despite statement
under Section 164 Cr.P.C. by prosecutrix the Court referring to
material collected during investigation had held that the case
was fit where the High Court ought to have quashed the
criminal proceedings. "
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5. Mr. Piyush Garg further advance his submission that
statement under Section 164 of Cr.P.C. has no relevance and
bearing to the findings and the conclusion arrived at the
investigation stage and placed reliance to the judgment of the
Hon'ble Apex Court in the case of Ajai Alias Ajju vs. State of
Uttar Pradesh (2023) SCC Online SC 144 by giving reference of
paragraph 22 and 23, which are being reproduced herein as
under:
"22. Non-examination of Ms Rashmi and Horam, father of
Vijay Pal Singh also has no material bearing. It is the discretion
of the prosecution to lead as much evidence as is necessary for
proving the charge. It is not the quantity of the witnesses but the
quality of witnesses which matters. Smt Pinky (PW-1) was the
injured witness having received grievous and life-threatening
injuries. We are not impressed by this argument also.
23. Non-examination of the statement under section 164 CrPC
also has no relevance or bearing to the findings and conclusions
arrived at by the courts below. It was for the Investigating
Officer to have got the statement under section 164 CrPC
recorded. If he did not think it necessary in his wisdom, it
cannot have any bearing on the testimony of PW-1 and the other
material evidence led during trial."
6. He further advance his arguments by submitting that the
revisional court has no power to take additional document on
record and then remand the matter to the Trial Court to examine
those records and in reference to this he placed reliance in Hon'ble
Apex Court's decision in the case of Vishnu Kumar Tiwari vs.
State of Uttar Pradesh and Another (2019) 8 SCC 27 by giving
reference of paragraph 27, 28, 30, 32, 35 and 36, which are quoted
as under:
"27. It is undoubtedly true that before a Magistrate proceeds to
accept a final report under Section 173 and exonerate the
accused, it is incumbent upon the Magistrate to apply his mind
to the contents of the protest petition and arrive at a conclusion
thereafter. While the Investigating Officer may rest content by
producing the final report, which, according to him, is the
culmination of his efforts, the duty of the Magistrate is not one
limited to readily accepting the final report. It is incumbent upon
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him to go through the materials, and after hearing the
complainant and considering the contents of the protest petition,
finally decide the future course of action to be, whether to
continue with the matter or to bring the curtains down.
28. In this case, the High Court proceeded on the basis, as we
have noticed, that the Magistrate has not taken into
consideration the protest petition and it was his pious duty to
consider the facts mentioned in the petition. We have examined
the order passed by the Magistrate. He does refer to the protest
petition. The contents therein are undoubtedly noticed.
Magistrate says that he has gone through the First Information
Report. He finds that the complainant is not an eyewitness in
regard to the death of his daughter. He recorded that he has
gone through the statements of witnesses given under Section
161. We may notice that the following findings were entered in
regard to the case of torture committed against the
complainant's daughter:
"... First of all I have gone through the statement of Sh Shiv
Shankar Ojha who is complainant in this case. Although this
witness has partly favoured the incident but here it is pertinent
to mention that at the time of death of deceased Jaya, this
witness was not present. When it was asked from this witness
that whether after you received information of torture
committed to you daughter, you had made any application
anywhere or you had informed this through any relation etc. In
reply to this question, he has stated that 'no'. I have also duly
gone through the statement of Smt. Shakuntala Devi mother of
deceased. Mother of deceased has given statement to the
investigating officer that my son in law is working in Haryana
in a private job."
30. The Chief Judicial Magistrate, in fact, proceeded to take
the view that Magistrate has to take cognizance on the basis of
the statements of the witnesses recorded by the Investigating
Officer and materials collected. He further finds that if
cognizance is taken on the basis of protest petition and
documents annexed, that is illegal. It is after that it was found
that the deceased died due to her illness and no prima facie case
was made out against the accused persons.
32. In the facts of this case, the High Court concluded that the
Magistrate has not considered the protest petition by the second
respondent/complainant. Had it been the case where protest
petition had not been considered at all, it may have been open to
the court to came to the conclusion 7 (2015) 5 SCC 423 8 (2003)6
SCC 675 that an illegality had been committed in exercise of its
jurisdiction to deal with the final report. But it is another matter
when the Magistrate has undoubtedly considered the protest
petition to direct the court again to consider the matter for action
on the same, and for that purpose, to set aside the proceedings.
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35. We have also gone through the protest petition along with
the counter affidavit. No doubt, in paragraph 2, there is a
general reference to demands for property from the deceased
and father of the deceased and torture. Paragraphs 3 to 15
thereafter relate to the circumstances relating to the death of the
daughter of the second respondent. In the said paragraphs, the
case is sought to be made out that forged documents were
produced before the Investigating Officer. Affidavits of the
mother and brother of the deceased, inter alia, were also filed to
project the case of forgery. For instance, in the affidavit of the
mother of the deceased, she claims that she has not gone to the
hospital on the 9th and 10th of October, 2007, whereas,
according to the statement under Section 161 of the Code, she is
alleged to have stated that on 09.10.2007, the deceased was
admitted at Priti Hospital by them which apparently includes
the mother. We have noticed that in regard to that no doubt the
Chief Judicial Magistrate has relied upon judgment
in Mohammed Yusuf and others v. State of Uttar Pradesh and
others 9 and taken the view that if cognizance is taken on the
basis of the protest petition and the documents annexed with,
that is illegal. He also took the view that the Magistrate has to
take cognizance on the basis of statements of witnesses recorded
by the Investigating Officer, in the case diary and the material
collected during investigation.
36. A learned Single Judge of the High Court of Allahabad, in the
aforesaid decision, had this to say in paragraph 11:
"11. Where the Magistrate decides to take cognizance under
Section 190(1)(b) ignoring the conclusions reached at by the
Investigating Officer and applying his mind independently, he
can act only upon the statements of the witnesses recorded by
the police in the case-diary and material collected during
investigation. It is not permissible at that stage to consider any
material other than that collected by the investigation Officer. In the
instant case the cognizance was taken on the basis of the protest
petition and accompanying affidavits. The Magistrate should have
adopted the procedure of complaint case under Chapter XV of the
Code of Criminal Procedure and recorded the statements of the
complainant and the witnesses who had filed affidavits under Sections
200 and 202 Cr.P.C. The Magistrate could not take cognizance
under Section 190(1)(b) Cr.P.C. on the basis of protest petition and
affidavits filed in support thereof. The Magistrate having taken into
account extraneous material i.e. protest petition and affidavits while
taking cognizance under Section 190(1)(b) Cr.P.C. the impugned
order is vitiated." (Emphasis supplied)"
7. Mr. Piyush Garg also placed reliance of another judgment
of the Hon'ble Apex Court in the case of Mohammad Yusuf vs.
State of U.P. 2017 SCC Online 1283 and submits that while
entertaining a protest petition the Magistrate should take
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cognizance only on the materials collected during investigation.
He submits that on an application of the victim for seeking
permission for WPCRL No. 1047 of 2013 was registered by the
High Court, wherein, on 04.09.2013 the Coordinate Bench of this
court directed the Director General of Police to file an affidavit by
stating therein the status of the investigation as well as to state as
to whether any departmental proceeding was drawn against the
officer concerned and whether at any point of time the statement
of the prosecutrix were recorded under Section 164 of Cr.P.C. and
if not why? In compliance thereof the DGP filed an affidavit by
giving reference of two notices dated 17.07.2013 and 11.09.2013
issued under Section 160 of Cr.P.C., wherein, an endorsement
was made by the concerned police officer. He submits that
despite the notice issued under Section 160 of Cr.P.C. the
prosecutrix never turned up for recording her statement under
Section 164 of Cr.P.C. He submits that WPCRL No. 1047 of 2023
was heard on several dates and for proper assistance the Amicus
Curiae was also appointed to address on behalf of the prosecutrix
but the prosecutrix herself chooses to engage another counsel of
her own choice and in the meantime the investigation was
completed by filing final report and subsequently WPCRL No.
1047 of 2013 was disposed of finally on 19.03.2014 by giving
liberty to the prosecutrix/complainant in view of the statement
made on her behalf to challenge the final report by way of protest
petition. He submits that during the entire proceeding of WPCRL
No. 1047 of 2013 the victim never came forward with a request to
record her statement under Section 164 of Cr.P.C. though on
some of the dates she was present in the court. He also submits
that while disposing of WPCRL No. 1047 of 2013 even no such
suggestion or request was made before the Coordinate Bench and
only this much statement was given on her behalf that she wants
to challenge the final report by way of protest petition. Now at
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this juncture it is necessary to give reference of some relevant
dates, which are as follows:
(i) 31.12.2013 final report filed.
(ii) 28.05.2014 the protest petition filed.
(iii) 15.09.2015 the final report was accepted by rejecting
the protest petition.
(iv) 07.10.2015 criminal revision against order dated
15.09.2015 was preferred.
8. On the same date when the criminal revision was filed
under Section 482 of Cr.P.C. was also filed by the victim bearing
Criminal Miscellaneous Application No. 1281 of 2015 with the
following relief:
"It is, therefore, most humbly prayed that this Hon'ble Court
may graciously be pleased to direct the Respondent No 2-CBI to
re-investigate the case in connection with FIR being Case Crime
No. 259/2013 dated 09.05.2013 lodged under Sections 376, 328,
506 1.P.C. at Police Station Haldwani, otherwise the applicant
shall suffer irreparable loss and injury.
It is further prayed that in the peculiar facts and circumstances
of the present case, it would be expedient in the interest of
justice that during investigation, the Respondent No. 3 be
directed to not to hold the office of Additional Superintendent of
Police, otherwise the applicant will suffer irreparable loss and
injury.
As an interim measure, it is most respectfully prayed that the
Superintendent of Police, Haldwani be directed to ensure that
the applicant and her family may not be threatened, humiliated
and pressurized in connection with the above-noted case and
they may be provided adequate protection and safety as
directed by the Hon'ble Supreme Court, in the interest of
justice."
9. With regard to the interpolation of time in the FIR Mr. Garg
submits that a written complaint was made by the victim before
the DGP and on that written complaint the DGP ordered for
preliminary enquiry and based on the preliminary enquiry report
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the FIR was registered and the copy of the chik FIR was supplied
to the victim, which is evident from the fact that the victim herself
make an endorsement of receipt by putting her signature in the
FIR. He argued that with regard to the interpolation of time in the
FIR the victim never report either before the High Court and the
first time while filing the protest petition the issue with regard to
the interpolation in the FIR was raised though no supporting
document was filed, however the supporting documents were
filed only at the stage of revision. He pointed out that in the
preliminary enquiry ordered DGP the date, which is mentioned
in the written complaint was reiterated.
10. At this juncture, Mr. Arvind Vashistha, who appears for
respondent no. 3 in subsequent C482 petition submits that C482
petition No. 1281 of 2015 is not maintainable on two accounts,
firstly, the order accepting the final report was already challenged
by the victim in criminal revision and, secondly, the order
rejecting the protest petition is not challenged in this petition. Mr.
Vashistha further submits that as on date in fact the C482
Application No. 1281 of 2015 is now rendered infructuous since
the revision has been allowed, which is now under challenge in
C482 application No. 1314 of 2023 and the applicant cannot be
permitted to avail two remedies, one by way of a revision,
another one, by way of a petition under Section 482 of Cr.P.C. He
further pointed out in this petition on 29.09.2022 a specific
question was asked from the learned counsel for the applicant
that why the petition should be kept pending when the order
rejecting the protest petition is still pending in the revision and in
case the revision is allowed and the court take cognizance what
would be its fate and whether the court can still after cognizance
passed an order for investigation.
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11. Learned counsel for the parties submits that the record
relating to the protest petition be also summoned. In view of such
submission the record of protest petition as well as record of
revision be summoned. The Registry is directed to send the
requisition.
12. Put up this matter on 19.11.2025.
(Rakesh Thapliyal, J.)
10.11.2025
PR
