# Aashish Kumar v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 1145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-02
- **Case number:** Application U/S 482 No. 16768 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aashish-kumar-v-state-of-u-p-anr-46887
- **Pages:** 16

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498A - Husband or
relative of husband of a women subjecting
her to cruelty, Sections 323 - punishment
for voluntry causing hurt , Sections 494 -
Marrying again during lifetime of husband
or wife , Sections 506 - Punishment for
criminal intimidation , Dowry prohibition
Act,1961 - Sections 3 - Penalty for giving
or taking dowry, Section 4 - Penalty for
demanding dowry - evidence produced by
the accused in his defence cannot be
looked into by the Court, except in very
exceptional circumstances, at the initial
stage of the criminal proceedings - High
Court
cannot
embark
upon
the
appreciation of evidence while considering
the petition filed under Section 482 CrPC
for quashing criminal proceedings - if a
prima facie case is made out disclosing the
ingredients of the offence alleged against
the accused, the Court cannot quash a
criminal proceeding. (Para - 12,26)

Applicant is husband of opposite party no.2
- opposite party no.2 lodged an F.I.R.
against seven named accused persons -
allegation - marriage of opposite party no.2
solemnized with the applicant - After her
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage, she was being mentally and
physically
tortured
by
the
husbandapplicant as well as family members of her
in-laws for non-fulfilment of additional
dowry demand - Investigating Officer, after
proper investigation submitted the charge
sheet
only
against
the
applicant
-
cognizance
taken
by
Magistrate
-
summoned the applicant.(Para - 5)

HELD:- Adjudication on pure questions of
fact and on points of law may adequately
and appropriately be adjudicated upon
only by the trial court . This Court does
not deem it proper, and therefore cannot
be persuaded to have a pre-trial before the
actual trial begins. The perusal of the
F.I.R. and the material collected by the
Investigating Officer on the basis of which
the charge sheet has been submitted
makes out a prima facie case against the
accused at this stage and there appear to
be sufficient ground for proceeding against
the accused.(Para - 27)

Application u/s 482 Cr.P.C. disposed of. (E-6)

List of Cases cited:-

## Text

_Characters 0–39,867 of 55,620. This is a partial read: ask again with offset=39867 for what follows._

3 All. Aashish Kumar Vs. State of U.P. & Anr.
1145
conclude
in
the
conviction
of
the
accused."(Emphasis supplied)"

27. Learned counsel for the applicant
has not been able to demonstrate before this
Court as to under which provision of law, the
applicant has a right for disposal of the
application under Section 340 Cr.P.C. at this
stage, as also that the Court had no
jurisdiction to direct consideration of the
application at the time of disposal of the
applicant's Complaint Case No. 19 of 2018,
on merits.

28. It could also not be established by
the learned counsel for the applicant that any
legal right of the applicant has been adversely
affected by the order passed by the
Magistrate nor that such an order or
proceeding amounts to an abuse of the
process of the Court.

29. I am of the considered view that it
would not be in the ends of justice that the
application under Section 340 Cr.P.C. be not
enquired into by the court concerned as per
law.

30. For the reasons aforesaid, as also
that the Code of Criminal Procedure is a
Complete Code, which provides for a remedy
of an appeal to the person against whom an
order making a complaint is passed, this
Court refuses to invoke its extraordinary
jurisdiction under Section 482 Cr.P.C. in the
present matter. The application under Section
482 Cr.P.C. is hereby rejected.

31. It is clarified that this Court has
not adjudicated nor commented on the
merits of the application under Section 340
Cr.P.C.

32. No orders as to costs.
----------
(2021)03ILR A1145
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2021

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 16768 of 2020

Aashish Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Adarsh Kumar, Sri Dipankar Chaudhari

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498A - Husband or
relative of husband of a women subjecting
her to cruelty, Sections 323 - punishment
for voluntry causing hurt , Sections 494 -
Marrying again during lifetime of husband
or wife , Sections 506 - Punishment for
criminal intimidation , Dowry prohibition
Act,1961 - Sections 3 - Penalty for giving
or taking dowry, Section 4 - Penalty for
demanding dowry - evidence produced by
the accused in his defence cannot be
looked into by the Court, except in very
exceptional circumstances, at the initial
stage of the criminal proceedings - High
Court
cannot
embark
upon
the
appreciation of evidence while considering
the petition filed under Section 482 CrPC
for quashing criminal proceedings - if a
prima facie case is made out disclosing the
ingredients of the offence alleged against
the accused, the Court cannot quash a
criminal proceeding. (Para - 12,26)

Applicant is husband of opposite party no.2
- opposite party no.2 lodged an F.I.R.
against seven named accused persons -
allegation - marriage of opposite party no.2
solemnized with the applicant - After her
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage, she was being mentally and
physically
tortured
by
the
husbandapplicant as well as family members of her
in-laws for non-fulfilment of additional
dowry demand - Investigating Officer, after
proper investigation submitted the charge
sheet
only
against
the
applicant
-
cognizance
taken
by
Magistrate
-
summoned the applicant.(Para - 5)

HELD:- Adjudication on pure questions of
fact and on points of law may adequately
and appropriately be adjudicated upon
only by the trial court . This Court does
not deem it proper, and therefore cannot
be persuaded to have a pre-trial before the
actual trial begins. The perusal of the
F.I.R. and the material collected by the
Investigating Officer on the basis of which
the charge sheet has been submitted
makes out a prima facie case against the
accused at this stage and there appear to
be sufficient ground for proceeding against
the accused.(Para - 27)

Application u/s 482 Cr.P.C. disposed of. (E-6)

List of Cases cited:-

1. Rajesh Talwar Vs C.B.I. (Delhi) & anr. , 2012
(76) ACC 598

2. Iftekhar Ahmad & anr. Vs St. of U.P. & anr. ,
U/s 482 No. 17231 of 2006

3. Mohd. Allauddin Khan Vs The St. of Bihar &
ors. , 2019 0 Supreme (SC) 454

4. Rajeev Kaurav Vs Balasahab & ors. , 2020 0
Supreme (SC) 143

5. R.P. Kapur Vs St.of Punj., AIR 1960 SC 866

6. St. of Har.& ors. Vs Ch. Bhajan Lal & ors.,
1992 Supp.(1) SCC 335

7. St. of Bihar & anr. Versus P.P. Sharma & anr.,
1992 Supp (1) SCC 222

8. Zandu Pharmaceuticals Works Ltd. & ors. Vs
Mohammad Shariful Haque & anr., 2005 (1) SCC
122

9. M. N. Ojha Vs Alok Kumar Srivastava, 2009
(9) SCC 682

10. M.N. Ojha Vs Alok Kumar Srivastava, 2009
(9) SCC 682

11. Nallapareddy Sridhar Reddy Vs The St. of
A.P. & ors. , 2020 0 Supreme (SC) 45

12. Amrawati & anr. Vs St. of U.P. ,2004 (57)
ALR 290

13. Lal Kamlendra Pratap Singh Vs St. of U.P.,
2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Supplementary affidavit filed by
learned counsel for the applicant today in
the Court, is taken on record.

2. The present 482 Cr.P.C. application
has been filed to quash the cognizance
order dated 27.09.2018 as well as the entire
proceedings of Criminal Case No. 51902of
2018, arising out of Case Crime No.23 of
2018, under Sections 498A, 323, 494, 506
I.P.C. as also under Sections 3/4 D.P. Act,
Police Station-Mahila Thana, DistrictKanpur Nagar, pending in the court of
Metropolitan Magistrate-Ist, Kanpur Nagar.

3. Heard Mr. Adarsh Kumar, learned
counsel for the applicant and Mr. Pankaj
Srivastava, learned A.G.A. for the State as
well as perused the entire material available
on record.

4. Since legal submissions are being
placed by the learned counsel for the
applicant, therefore, this application is
being heard at this stage without issuing
notice to opposite party no.2 in view of the
order proposed to be passed today. It is not
necessary to issue notice to opposite party
3 All. Aashish Kumar Vs. State of U.P. & Anr.
1147
no.2, as he has no right to be heard at precognizance stage.

5. From perusal of material on record,
it transpires that the opposite party no.2,
namely, Pinki Ahirwar has lodged an F.I.R.
against seven named accused persons with
the allegation that the marriage of opposite
party no.2 was solemnized with the
applicant
on
10.12.2014.
After
her
marriage, she was being mentally and
physically
tortured
by
the
husbandapplicant as well as family members of her
in-laws for non-fulfilment of additional
dowry demand. It has also been alleged that
the applicant asked the opposite party no.2
to go and reside at her parental place and
after leaving her near the resident of her
parents,
the
applicant
went
away.
Thereafter, the applicant never contacted
the opposite party no.2 and never used to
receive the call of opposite party no.2.
Subsequently, on 24.01.2018, the opposite
party no.2 went to the place where the
applicant resides and she was told by the
neighbours that he had gone suddenly with
his wife. When the opposite party no.2 told
the neighbours that she is wife of the
applicant, they told her that the applicant
had told them that he was going with his
wife, namely, Sumanlata, who is working
in the Police Department, to Kanpur Nagar.
The aforesaid fact was confirmed by the
opposite party no.2 from Santosh Kumar,
elder brother of applicant. When no option
was left, the present F.I.R. was lodged
under Sections 498A, 323, 494, 506 IPC
and Section 3⁄4 D.P. Act, Police StationMahila Thana, District-Kanpur Nagar. The
Investigating
Officer,
after
proper
investigation, has submitted the charge
sheet only against the applicant on
23.09.2018 under Sections 498A, 323, 494,
506 IPC and Section 3⁄4 D.P. Act. On the
basis of charge-sheet, cognizance has been
taken by the concerned Magistrate on
27.09.2018 and summoned the applicant.

6. It has been argued by learned
counsel for the applicant that the applicant
is husband of opposite party no.2 and no
case under the relevant sections is made out
against the applicant as there is no
averment either in the F.I.R. or in the
statement of the witness under Section 161
Cr.P.C., that the marriage ceremony of the
applicant was legally performed as per
Hindu Rites and Rituals. It has been argued
by learned counsel for the applicant that the
concerned
Magistrate
without
taking
cognizance in accordance with law issued
notices to the applicant to appear on
29.10.2018, which cannot be said to be the
cognizance order in the matter. As per Rule
22 of General Rules (Criminal), upon the
institution of a case an order-sheet in the
prescribed form shall be opened. Upon it
shall be recorded, every routine order
passed by the court in the case and a note
of every other order passed, including
every order regarding a document produced
before the court and also a note of the date
of each hearing and the proceedings on that
date. Rule 22 of Chapter IV of General
Rules (Criminal) is reproduced herein
below:-

"22.
Order-Sheet-Upon
the
institution of a case an order-sheet in the
prescribed form (Part IX, no. 10) shall be
opened. Upon it shall be recorded (i) every
routine order passed by the court in the
case; (ii) a note of every other order
passed, including every order regarding a
document produced before the court; and
(iii) a note of the date of each hearing and
the proceedings on that date. An order the
reason for which require to be recorded at
length, shall not be written on the ordersheet, but only a note of the order and of
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
the date on which it was made, shall be
entered on it. Every entry upon the ordersheet, shall be made at the earliest
opportunity and shall be signed by the
presiding officer."

On the basis of aforesaid Rule, he
argued that the impugned order is ex-facie,
illegal, arbitrary, unwarranted in law and
liable to be quashed by this Court. In
support of his contention, he has relied
upon the Judgement of the Hon'ble Apex
Court in the case of Rajesh Talwar vs.
C.B.I. (Delhi) and another reported in
2012 (76) ACC 598.

7. Secondly, it has been argued by
learned counsel for the applicant that the
offence under Section 494 IPC is noncognizable. According to Section 498
(1)(b) of the Code, such cognizance can be
taken only on the complaint filed by the
person authorized under the said Section.
Learned
Magistrate
cannot
take
the
cognizance of such offence on Police
Report. Hence, the order passed by the
learned Magistrate is against the provision
of law and impugned order as well as
criminal proceedings is liable to be
quashed. In support of his contention, he
has relied upon the judgment of the Coordinate Bench of this Court in the case of
Iftekhar Ahmad and another vs. State of
U.P. and another passed in Application
U/s 482 No. 17231 of 2006.

8. Learned counsel for the applicants,
therefore, submitted that the present criminal
proceedings initiated against the applicant is
not only malicious but also amount to an
abuse of the process of the court of law. On
the cumulative strength of the aforesaid
submissions, it is submitted by learned
counsel for the applicant that the proceedings
of the above mentioned criminal case are
liable to be quashed by this Court.

9. Per contra, Mr. Pankaj Srivastava,
learned A.G.A. for the State has opposed the
prayer made by the learned counsel for the
applicant by contending that charge-sheet is
of the year 2018, but there is no explanation
in the application for the long delay of more
than 2 years in challenging the criminal
proceedings at such a belated stage.

10. Regarding submissions on the legal
questions, learned A.G.A. has submits that
there is no illegality or infirmity in the
impugned
cognizance
order
dated
27.09.2018 by which the cognizance has
been taken by the learned Magistrate. The
applicant can agitate his grievance at
appropriate
stage
before
the
learned
Magistrate. Therefore, the impugned order
passed by the learned Magistrate cannot be
quashed at this stage.

11. Learned A.G.A. submits that
perusal of F.I.R. as well as statements of
the witnesses, goes to show that, prima
facie case for the alleged offence is made
out against the applicant. Lastly, the learned
A.G.A. states that this High Court may not
quash the entire criminal proceedings under
Section 482 Cr.P.C. at the pre-trial stage,
for which he has relied upon the judgment
of the Apex Court in the case of Mohd.
Allauddin Khan Vs. The State of Bihar
& Others reported in 2019 0 Supreme
(SC) 454, wherein the Apex Court has held
that the High Court had no jurisdiction to
appreciate the evidence of the proceedings
under Section 482 Cr.P.C. because whether
there
are
contradictions
or/and
inconsistencies in the statements of the
witnesses is an essential issue relating to
appreciation of evidence and the same can
be gone into by the Judicial Magistrate
during trial when the entire evidence is
adduced by the parties. However, in the
present case the said stage is yet to come.
3 All. Aashish Kumar Vs. State of U.P. & Anr.
1149

12. Learned A.G.A. has further relied
upon the judgment of the Apex Court in the
case of Rajeev Kaurav Vs. Balasahab &
Others reported in 2020 0 Supreme (SC)
143, wherein the Apex Court has held that
it is no more res integra that exercise of
power under Section 482 CrPC to quash a
criminal proceeding is only when an
allegation made in the FIR or the charge
sheet constitutes the ingredients of the
offence/offences alleged. Interference by
the High Court under Section 482 CrPC is
to prevent the abuse of process of any law
or Court or otherwise to secure the ends of
justice. It is settled law that the evidence
produced by the accused in his defence
cannot be looked into by the Court, except
in very exceptional circumstances, at the
initial stage of the criminal proceedings. It
is trite law that the High Court cannot
embark upon the appreciation of evidence
while considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings. It is clear from the law laid
down by this Court that if a prima facie
case is made out disclosing the ingredients
of the offence alleged against the accused,
the
Court
cannot
quash
a
criminal
proceeding.

13. On the cumulative strength of the
aforesaid submissions, learned A.G.A.
states that this Court may not exercise its
inherent power under Section 482 Cr.P.C.
in the present case, and hence the present
application is liable to be rejected.

14. I have considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
application.

15. This Court finds substance in the
contention raised by the learned A.G.A.
that prima facie case for the alleged offence
is made out against the applicant. There is
consistency in the prosecution story as
unfolded in the first information report and
statement of the informant under Section
161 Cr.P.C. In the F.I.R., there is specific
allegation against the applicant regarding
beating, torturing of the opposite party
no.2.

16. So far as the first argument placed
by the learned counsel for the applicant
regarding maintaining of order sheet, the
Court is of the opinion that perusal of entire
records, goes to show that a proper ordersheet has already been maintained by the
concerned court below mentioning therein
that the charge-sheet has been placed
before the court, on perusal of which,
summon has been issued. The judgment of
Rajesh Tawar (supra) on which learned
counsel for the applicant relied upon has no
relevance in the present facts of this case as
in the aforesaid case, itself it has been
mentioned that the taking of cognizance
means the point in time when a Court or a
Magistrate takes judicial notice of an
offence
with
a
view
to
initiating
proceedings in respect of such offence
which appears to have been committed. At
the stage of taking of cognizance of
offence, the Court has only to see whether
prima facie there are reasons for issuing the
process and whether the ingredients of the
offence are there on record.

17. Second argument, made by the
learned counsel for the applicant regarding
fact that since Section 494 IPC is noncognizable, therefore, learned Magistrate
erred in taking cognizance of such an
offence on Police Report, has also no force
as the learned Magistrate has passed the
cognizance order in other Sections also,
which are cognizable. The judgment of
Iftekhar Ahmad (supra) on which learned
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the applicant relied upon has no
relevance in the present facts of this case.

18. This Court comes on the issue
whether it is appropriate for this Court
being the Highest Court to exercise its
jurisdiction under Section 482 Cr.P.C. to
quash the charge-sheet and the proceedings
at the stage when the Magistrate has merely
issued process against the applicants and
trial is to yet to come only on the
submission made by the learned counsel for
the applicants that present criminal case
initiated by opposite party no.2 are not only
malicious but also abuse of process of law.
The aforesaid issue has elaborately been
discussed by the Apex Court in the
following judgments:

 (i) R.P. Kapur Versus State of
Punjab; AIR 1960 SC 866,
 (ii) State of Haryana & Ors. Versus
Ch. Bhajan Lal & Ors.; 1992 Supp.(1)
SCC 335,
 (iii) State of Bihar & Anr. Versus P.P.
Sharma & Anr.; 1992 Supp (1) SCC 222,
 (iv) Zandu Pharmaceuticals Works
Ltd. & Ors. Versus Mohammad Shariful
Haque & Anr.; 2005 (1) SCC 122, and
 (v) M. N. Ojha Vs. Alok Kumar
Srivastava; 2009 (9) SCC 682.

19. In the case of R.P. Kapur
(Supra), the following has been observed
by the Apex Court in paragraph 6:

"Before dealing with the merits of
the appeal it is necessary to consider the
nature and scope of the inherent power of
the High Court under s. 561 -A of the Code.
The said section saves the inherent power
of the High Court to make such orders as
may be necessary to give effect to any order
under this Code or to prevent abuse of the
process of any court or otherwise to secure
the ends of justice. There is no doubt that
this inherent power cannot be exercised in
regard to matters specifically covered by
the other provisions of the Code. In the
present case the magistrate before whom
the police report has been filed under s.
173 of the Code has yet not applied his
mind to the merits of the said report and it
may be assumed in favour of the appellant
that his request for the quashing of the
.proceedings is not at the present stage
covered by any specific provision of the
Code. It is well-established that the
inherent jurisdiction of the High Court can
be exercised to quash proceedings in a
proper case either to prevent the abuse of
the process of any court or otherwise to
secure the ends of justice. Ordinarily
criminal proceedings instituted against an
accused person must be tried under the
provisions of the Code, and the High Court
would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is
not possible, desirable or expedient to lay
down any inflexible rule which would
govern the exercise of this inherent
jurisdiction. However, we may indicate
some categories of cases where the inherent
jurisdiction can and should be exercised for
quashing the proceedings. There may be
cases where it may be possible for the High
Court to take the view that the institution or
continuance
of
criminal
proceedings
against an accused person may amount to
the abuse of the process of the court or that
the quashing of the impugned proceedings
would secure the ends of justice. If the
criminal proceeding in question is in
respect of an offence alleged to have been
committed by an accused person and it
manifestly appears that there is a legal bar
against the institution or continuance of the
said proceeding the High Court would be
justified in quashing the proceeding on that
ground. Absence of the requisite sanction
3 All. Aashish Kumar Vs. State of U.P. & Anr.
1151
may, for instance, furnish cases under this
category. Cases may also arise where the
a11egations in the First Information Report
or the complaint, even if they are taken at
their face value and accepted in their
entirety, do not constitute the offence
alleged; in such cases no ques- tion of
appreciating evidence arises; it is a matter
merely of looking at the complaint or the
First Information Report to decide whether
the offence alleged is disclosed or not. In
such cases it would be legitimate for the
High Court to hold that it would be
manifestly unjust to allow the process of the
criminal court to be issued against the
accused person. A third category of cases
in which the inherent jurisdiction of the
High Court can be successfully invoked
may also arise. In cases falling under this
category the allegations made against the
accused person do constitute an offence
alleged but there is either no legal evidence
adduced in support of the case or evidence
adduced clearly or manifestly fails to prove
the charge. In dealing with this class of
cases it is important to bear in mind the
distinction between a case where there is
no legal evidence or where there is
evidence which is manifestly and clearly
inconsistent with the accusation made and
cases where there is legal evidence which
on its appreciation may or may not support
the accusation in question. In exercising its
jurisdiction under s. 561-A the High Court
would not embark upon an enquiry as to
whether the evidence in question is reliable
or not. That is the function of the trial
magis- trate, and ordinarily it would not be
open to any party to invoke the High
Court's inherent jurisdiction and' contend
that on a reasonable appreciation of the
evidence the accusation made against the
accused would not be sustained. Broadly
stated that is the nature and scope of the
inherent jurisdiction of the High Court
under s. 561-A in the matter of quashing
criminal proceedings, and that is the effect
of the judicial decisions on the point (Vide:
In Re: Shripad G. Chandavarkar AIR 1928
Bom 184, Jagat Ohandra Mozumdar v.
Queen Empress ILR 26 Cal 786), Dr.
Shanker Singh v. The State of Punjab 56
Pun LR 54 : (AIR 1954 Punj 193),
Nripendra Bhusan Ray v. Govind Bandhu
Majumdar, AIR 1924 Cal 1018 and
Ramanathan Chettiyar v. K. Sivarama
Subrahmanya Ayyar ILR 47 Mad 722: (AIR
1925 Mad 39)."

20. In the case of State of Haryana
(Supra), the following has been observed by
the Apex Court in paragraph 105:-

"105. In the backdrop of the
interpretation of the various relevant provisions
of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extra-ordinary power under Article 226 or the
inherent powers Under Section 482 of the Code
which we have extracted and reproduced
above, we give the following categories of cases
by way of illustration wherein such power could
be exercised either to prevent abuse of the
process of any Court or otherwise to secure the
ends of justice, though it may not be possible to
lay down any precise, clearly defined and
sufficiently
channelised
and
inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised.

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.
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
do not disclose a cognizable offence,
justifying an investigation by police officers
Under Section 156(1) of the Code except
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
F.I.R. 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."

21. In the case of State of Bihar
(Supra), the following has been observed
by the Apex Court in paragraph 22. :-

"The question of mala fide
exercise of power assumes significance
only when the criminal prosecution is
initiated on extraneous considerations and
for an unauthorised purpose. There is no
material whatsoever is this case to show
that on the date when the FIR was lodged
by R.K. Singh he was activated by bias or
had any reason to act maliciously. The
dominant purpose of registering the case
against the respondents was to have an
investigation done into the allegations
contained in the FIR and in the event of
there being sufficient material in support of
the allegations to present the charge sheet
before the court. There is no material to
show
that
the
dominant
object
of
registering the case was the character
assassination of the respondents or to
harass and humiliate them. This Court in
State of Bihar v J.A.C. Saldhana and Ors.,
[1980] 2 SCR 16 has held that when the
information is lodged at the police station
and an offence is registered, the mala fides
of the informant would be of secondary
importance. It is the material collected
during the investigation which decides the
fate of the accused person. This Court in
State of Haryana and Ors. v. Ch. Bhajan
Lal and Ors., J.T. 1990 (4) S.C. 650
permitted the State Government to hold
investigation afresh against Ch. Bhajan Lal
inspite of the fact the prosecution was
lodged at the instance of Dharam Pal who
was enimical towards Bhajan Lal."

22.

In
the
case
of
Zandu
Pharmaceuticals Works Ltd. (Supra), the
following has been observed by the Apex
Court in paragraphs nos. 8 to 12:-

"8. Exercise of power under
Section 482 of the Code in a case of this
nature is the exception and not the rule.
The Section does not confer any new
3 All. Aashish Kumar Vs. State of U.P. & Anr.
1153
powers on the High Court. It only saves the
inherent power which the Court possessed
before the enactment of the Code. It
envisages three circumstances under which
the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under
the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise
secure the ends of justice. It is neither
possible nor desirable to lay down any
inflexible rule which would govern the
exercise
of
inherent
jurisdiction.
No
legislative
enactment
dealing
with
procedure can provide for all cases that
may possibly arise. Courts, therefore, have
inherent
powers
apart
from
express
provisions of law which are necessary for
proper discharge of functions and duties
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognizes and
preserves inherent powers of the High
Courts. All courts, whether civil or criminal
possess, in the absence of any express
provision, as inherent in their constitution,
all such powers as are necessary to do the
right and to undo a wrong in course of
administration of justice on the principle
"quando
lex
aliquid
alicui
concedit,
concedere videtur et id sine quo res ipsae
esse non potest" (when the law gives a
person anything it gives him that without
which it cannot exist). While exercising
powers under the section, the court does
not function as a court of appeal or
revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae
to do real and substantial justice for the
administration of which alone courts exist.
Authority
of
the
court
exists
for
advancement of justice and if any attempt is
made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and prevent
promotion of justice. In exercise of the
powers court would be justified to quash
any
proceeding
if
it
finds
that
initiation/continuance of it amounts to
abuse of the process of court or quashing of
these proceedings would otherwise serve
the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged
and whether any offence is made out even if
the allegations are accepted in toto.

9. In R. P. Kapur v. State of
Punjab (AIR 1960 SC 866) this Court
summarized some categories of cases
where inherent power can and should be
exercised to quash the proceedings.

(i) where it manifestly appears
that there is a legal bar against the
institution or continuance e.g. want of
sanction;

(ii) where the allegations in the
first information report or complaint taken
at its face value and accepted in their
entirety do not constitute the offence
alleged;

(iii)
where
the
allegations
constitute an offence, but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charge.

10. In dealing with the last case,
it is important to bear in mind the
distinction between a case where there is
no legal evidence or where there is
evidence which is clearly inconsistent with
the accusations made, and a case where
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
there
is
legal
evidence
which,
on
appreciation, may or may not support the
accusations. When exercising jurisdiction
under Section 482 of the Code, the High
Court would not ordinarily embark upon an
enquiry whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it accusation would not be
sustained. That is the function of the trial
Judge. Judicial process should not be an
instrument of oppression, or, needless
harassment. Court should be circumspect
and judicious in exercising discretion and
should
take
all
relevant
facts
and
circumstances into consideration before
issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly. At the same time the
section is not an instrument handed over to
an accused to short-circuit a prosecution
and bring about its sudden death.

11. The scope of exercise of
power under Section 482 of the Code and
the categories of cases where the High
Court may exercise its power under it
relating to cognizable offences to prevent
abuse of process of any court or otherwise
to secure the ends of justice were set out in
some detail by this Court in State of
Haryana v. Bhajan Lal (1992 Supp (1)
335). A note of caution was, however,
added that the power should be exercised
sparingly and that too in rarest of rare
cases. The illustrative categories indicated
by this Court are as follows:

"(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 FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except 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 Act concerned (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 Act
concerned, 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."

As noted above, the powers
possessed by the High Court under Section
482 of the Code are very wide and the very
plenitude of the power requires great
caution in its exercise. Court must be careful
to see that its decision in exercise of this
3 All. Aashish Kumar Vs. State of U.P. & Anr.
1155
power is based on sound principles. The
inherent power should not be exercised to
stifle a legitimate prosecution. The High
Court being the highest court of a State
should normally refrain from giving a
prima facie decision in a case where the
entire facts are incomplete and hazy, more
so when the evidence has not been
collected and produced before the Court
and the issues involved, whether factual or
legal, are of magnitude and cannot be seen
in their true perspective without sufficient
material. Of course, no hard-and-fast rule
can be laid down in regard to cases in
which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage. (See: Janata Dal v.
H. S. Chowdhary (1992 (4) SCC 305), and
Raghubir Saran (Dr.) v. State of Bihar (AIR
1964 SC 1). It would not be proper for the
High Court to analyse the case of the
complainant in the light of all probabilities
in order to determine whether a conviction
would be sustainable and on such premises
arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to
assess the material before it and conclude
that the complaint cannot be proceeded
with.
In
a
proceeding
instituted
on
complaint, exercise of the inherent powers to
quash the proceedings is called for only in a
case where the complaint does not disclose
any offence or is frivolous, vexatious or
oppressive. If the allegations set out in the
complaint do not constitute the offence of
which cognizance has been taken by the
Magistrate, it is open to the High Court to
quash the same in exercise of the inherent
powers under Section 482 of the Code. It is
not, however, necessary that there should be
meticulous analysis of the case before the
trial to find out whether the case would end
in conviction or acquittal. The complaint
has to be read as a whole. If it appears that
on consideration of the allegations in the
light of the statement made on oath of the
complainant that the ingredients of the
offence or offences are disclosed and there is
no material to show that the complaint is
mala fide, frivolous or vexatious, in that
event there would be no justification for
interference by the High Court. When an
information is lodged at the police station
and an offence is registered, then the mala
fides of the informant would be of secondary
importance. It is the material collected
during the investigation and evidence led in
court which decides the fate of the accused
person. The allegations of mala fides
against the informant are of no consequence
and cannot by themselves be the basis for
quashing
the
proceedings.
(See:
Dhanalakshmi v. R. Prasanna Kumar (1990
Supp SCC 686), State of Bihar v. P. P.
Sharma (AIR 1996 SC 309), Rupan Deol
Bajaj v. Kanwar Pal Singh Gill (1995 (6)
SCC 194), State of Kerala v. O. C. Kuttan
(AIR 1999 SC 1044), State of U.P. v. O. P.
Sharma (1996 (7) SCC 705), Rashmi Kumar
v. Mahesh Kumar Bhada (1997 (2) SCC
397), Satvinder Kaur v. State (Govt. of NCT
of Delhi) (AIR 1996 SC 2983) and Rajesh
Bajaj v. State NCT of Delhi (1999 (3) SCC
259.

12. The above position was
recently highlighted in State of Karnataka
v. M. Devendrappa and Another (2002 (3)
SCC 89)." (emphasis added)

23. Thereafter, in the case of M.N.
Ojha Vs. Alok Kumar Srivastava, reported
in
2009
(9)
SCC
682
has
made
observations in paragraphs 25, 27, 28, 29
and 30 regarding the exercise of power
under section 482 Cr.P.C. as well as the
principles governing the exercise of such
jurisdiction:-

"25. Had the learned SDJM
applied his mind to the facts and
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances and sequence of events and
as well as the documents filed by the
complainant
himself
along
with
the
complaint, surely he would have dismissed
the complaint. He would have realized that
the complaint was only a counter blast to
the FIR lodged by the Bank against the
complainant and others with regard to
same transaction.

26. This Court in Pepsi Foods
Ltd. & Anr. Vs. Special Judicial Magistrate
& Ors. [(1998)5 SCC 749 held:

"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
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."

27. The case on hand is a classic
illustration of non-application of mind by
the learned Magistrate.