# Anita Mishra and others v. State of U.P. & another

- **Citation:** (2008) 1 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-19
- **Case number:** Criminal Misc. Application No. 5348 of 2003
- **Bench:** Mrs.) Saroj Bala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anita-mishra-and-others-v-state-of-u-p-another-41017
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section-482Application
for
quashing
Criminal
proceeding-offence under Section 448,
406
IPC-applicant
is
daughter
of
opposite Party No. 2-after death of her
mother the name of applicant as well as
Opposite Party No. 2 jointly recordedbefore her marriage she was residing in
the house in question-No allegation in
FIR for offence of intermediation, insult
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
or
annoyance-No
entrustment
of
ornament or valuable articles and house
hold goods-nor mentioned in FIR-held
Criminal prosecution sheer abuse of the
process of Court-proceedings including
summoning order quashed.

Held: Para 9

The applicant no. 1 is co-owner to the
extent of half share in the dispute
property. The name of applicant no. 1
finds place alongwith opposite party no.
2 in the assessment of Nagarpalika. The
F.I.R. and other material do not show the
commission of offence of house trespass.
There
are
no
allegations
that
the
applicants entered into the property with
the intention to commit the offence of
intimidation, insult or annoyance. As a
matter of fact the applicant no. 1 being
the daughter of opposite party no. 2
lived in the disputed house prior to her
marriage
and
she
remained
in
its
possession after marriage in the year

## Text

1 All] Anita Mishra and others V. State of U.P. and another
221
findings of fact recorded by the court
below. Learned counsel for the appellant
has not been able to put slightest dent in
the findings and reasoning of the court
below.

15.

Accordingly,
appeal
is
dismissed.

16. However, the court persuaded
the learned counsel for the parties to come
out with some such suggestion or solution
which could safeguard the future of the
lady to some extent. Learned counsel for
the appellant states that in case so much
money is paid by the husband, which may
yield about Rs.1000/- interest per month,
if kept in Bank, then suffering of the lady
would be mitigated to some extent and the
said amount would be utilized in her
maintenance. Learned counsel for the
husband stated that husband was mainly
depending upon his father and his father
had other persons also to maintain, hence
by maximum they could pay Rs.30,000/-
as alimony.

17. Even through the court is of the
opinion that due to her mental condition
Smt. Suman deserves proper alimony,
however only so much alimony may be
awarded, which is within the possible
means of the husband.

18. Accordingly, I direct husband to
pay Rs.50,000/- as alimony to the wife
Smt. Suman. He must deposit Rs.50,000/-
in some Nationalized Bank in the name of
Smt. Suman for ten years' fixed period
with interest payable monthly to appellant
No.1. The appellant No.1 must utilise the
said amount of interest for the welfare of
Smt. Suman. After ten years, appellant
No.1 would be entitled to reinvest the said
amount. However, if condition of the wife
is improved during these ten years and
she becomes capable to handle her affairs,
then the interest must be given to her and
she will be at complete liberty to receive
the principal amount after ten years.

19. If Government has got some
such fund, which may be made available
to the ladies like appellant No.2 in this
appeal that on an application being filed
in that regard by appellant, Government
should sanction proper amount with
proper conditions for appellant No.2.

 Appeal dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2008

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Misc. Application No. 5348 of
2003

Anita Mishra and others
...Applicants
Versus
State of U.P. & another...Opposite Party

Counsel for the Applicants:
Sri Manish Tiwary
Sri Ashwini Kumar Awasthi

Counsel for the Opposite Party:
Sri K.K. Tripathi
Sri Dinesh Tiwari
A.G.A.

Code of Criminal Procedure-Section-482Application
for
quashing
Criminal
proceeding-offence under Section 448,
406
IPC-applicant
is
daughter
of
opposite Party No. 2-after death of her
mother the name of applicant as well as
Opposite Party No. 2 jointly recordedbefore her marriage she was residing in
the house in question-No allegation in
FIR for offence of intermediation, insult
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
or
annoyance-No
entrustment
of
ornament or valuable articles and house
hold goods-nor mentioned in FIR-held
Criminal prosecution sheer abuse of the
process of Court-proceedings including
summoning order quashed.

Held: Para 9

The applicant no. 1 is co-owner to the
extent of half share in the dispute
property. The name of applicant no. 1
finds place alongwith opposite party no.
2 in the assessment of Nagarpalika. The
F.I.R. and other material do not show the
commission of offence of house trespass.
There
are
no
allegations
that
the
applicants entered into the property with
the intention to commit the offence of
intimidation, insult or annoyance. As a
matter of fact the applicant no. 1 being
the daughter of opposite party no. 2
lived in the disputed house prior to her
marriage
and
she
remained
in
its
possession after marriage in the year
1996. There was no entrustment of the
ornaments, valuable documents to the
applicants. The details of ornaments,
valuable documents and house holdgoods have not been mentioned in the
F.I.R.. The F.I.R. was lodged more than
two months after the institution of civil
suit
by
the
applicant
no.
1.
The
ingredients of Sections 406 and 448
I.P.C. are not made out. In view of the
foregoing discussion, the institution of
criminal prosecution in the present case
is sheer abuse of the process of court.
Case law discussed:
1992 Supp (1) SCC 335 (Cri) 426, (2004) 1
SCC, AIR 2004 Supreme Court 4674

(Delivered by Hon'ble (Mrs.) Saroj Bala, J.)

1. By way of this application under
Section 482 Cr.P.C., the applicants have
prayed for quashing the proceedings of
Criminal case No. 1310 of 2003-State Vs.
Smt. Anita Mishra & others, under
Sections 448 and 406 I.P.C., Police
station Harbans Mohal, District Kanpur
Dehat pending in the Court of A.C.M.M.-
I, Kanpur Nagar.

2. The factual matrix of the case is
as below:

3. The applicant no. 1 and opposite
party no. 2 are daughter and father. The
applicant no. 2 is maternal grand-mother
and applicant no. 3 is husband of
applicant no. 1. The F.I.R. was lodged by
the opposite party no. 2 on 22.4.98 with
the allegations that the disputed house
was purchased by him with his own funds
in the name of his wife who died in the
year 1984. The opposite party no. 2 had
two daughters out of which one died in
February, 1992 and second daughter is
applicant no. 1. It was alleged that on
30.4.1996, the applicant no. 1 married
applicant no. 3 against the will of opposite
party no. 2. After marriage the applicants
started living in house of opposite party
no. 2 and had taken possession of household goods, ornaments and valuable
documents. They refused to vacate the
house and inducted tenants. It was alleged
that opposite party no. 2 was ousted from
the possession of the house. After
investigation final report was submitted.
The opposite party no. 2 filed protest
petition. On going through the material
available in the case-diary the Magistrate
took cognizance for the offences under
Sections 406 and 448 I.P.C. by the order
dated 25.1.99.

4. The contention of the applicants is
that the disputed house belonged to the
mother of applicant no.1. The opposite
party no. 2 became a Sadhu after the
death of her mother and she as well as her
sister were brought up by their maternal
grand-mother. Opposite party no. 2
threatened to take forcible possession of
1 All] Anita Mishra and others V. State of U.P. and another
223
the house and she was compelled to file a
suit for permanent injunction against
opposite party no. 2. The interim
injunction directing to maintain status-quo
was issued on 27.3.98. The application
moved under order 39 rules 1 and 2
C.P.C. was allowed by the order dated
10.3.99 and the opposite party no. 2 was
restrained from selling the house in suit or
causing any interference in the peaceful
use and occupation of applicant no. 1. The
temporary injunction order dated 10.3.99
was affirmed by the appellate court in
Civil Misc. Appeal No: 151 of 1999 vide
order dated 16.3.2001.

5. The civil suit was instituted on
18.2.98. The interim injunction order was
granted on 27.3.98. The F.I.R. was lodged
on 22.4.98 with an oblique object to
pressurise the applicants to vacate the
disputed house. The applicants have
stated that the dispute is purely a civil
nature and F.I.R. was lodged with
malafide
intention
to
harass
the
applicants. The allegations made in the
F.I.R. do not constitute the offences under
Section 406 and 448 I.P.C.. There was no
entrustment of any property. The details
of the ornaments, valuable documents and
other house-hold goods alleged to have
been misappropriated are not mentioned
in the F.I.R.. The opposite party no. 2 has
instituted suit against Mahesh Kumar
Triwedi, one of the occupants. In the
municipal record the name of applicant
no. 1 is entered over the disputed house
alongwith opposite party no. 2 her father.

6. The opposite party no. 2 has filed
counter-affidavit
stating
that
in
proceedings under Section. 482 Cr.P.C.
this Court cannot consider the factual
aspect of the matter and against the
summoning order statutory remedy of
revision under Sections 397, 401 Cr.P.C.
is available. The revision against the
summoning order would have been barred
by
limitation,
therefore,
the
entire
criminal
proceedings
have
been
challenged
by
the
applicants.
The
applicants having not prayed for quashing
the summoning order, the application is
not maintainable and is liable to be
dismissed.

7. Heard Sri Manish Tiwary, learned
counsel for the applicants, Sri K.K.
Tripathi, learned counsel for opposite
party no. 2, learned A.G.A. and have
perused the record.

8. The learned counsel for the
applicants submitted that on the death of
mother the property was inherited by
applicant no. 1 and her father, Opposite
party no. 2 intended to cause interference
in the possession of the applicants, civil
suit
for
permanent
injunction
was
instituted
and
temporary
injunction
granted in favour of applicant no. 1 was
confirmed in Civil Misc. appeal preferred
by opposite party no. 2. The applicant no.
1 being in possession of the disputed
house in her own rights, no offence under
Section 448 I.P.C. is made out. There was
no
entrustment
of
any
property,
ornaments or valuable documents to
applicant no. 1 as such no offence under
Section 406 I.P.C. is made out.

9. In order to constitute an offence
entrustment of property or any dominion
over
the
property,
dishonest,
misappropriation or conversion of that
property by the person entrusted to his
own use or dishonest use or disposal of
that property or wilfully suffering any
other person so to do in violation of any
direction of law prescribing the mode in
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
which such trust is to be discharged or of
any legal contract made touching the
discharge of such trust are essential
ingredients. In order to make out the
offence of criminal breach of trust proof
of entrustment is essential. Section 441
I.P.C. defines criminal trespass. Entering
into or upon property in the possession of
another to commit an offence or to
intimidate, insult or annoy any person in
possession of such property constitute the
offence of criminal trespass. Section 442
I.P.C. defines house trespass. A person by
entering into or remaining in any
building, tent or vessel used as a human
dwelling of any building used as a place
for worship, or as a place for the custody
of property is said to commit housetrespass. Section 448 I.P.C. prescribes the
punishment for house trespass. The aim or
dominant intention of the accused for
committing an offence of intimidation,
insult or annoyance has to be established
to constitute the offence of criminal
trespass. The opposite party no. 2 is the
father of applicant no. 1. Admittedly the
wife of opposite party no. 2 and mother of
applicant no. 1 was the owner of the
disputed house. On the death of the wife
opposite party no. 2 and his daughter
applicant no. 1 inherited the property. The
allegation that house was purchased by
opposite party no. 2 in favour of his wife
with his own funds is not a question for
decision
in
criminal
proceedings.
However, his contention did not find
favour with the civil court in Appeal No.
151 of 1999-Ram Pratap Tiwari Vs. Anita
Mishra & others. The applicant no. 1 is
co-owner to the extent of half share in the
dispute property. The name of applicant
no. 1 finds place alongwith opposite party
no. 2 in the assessment of Nagarpalika.
The F.I.R. and other material do not show
the commission of offence of house
trespass. There are no allegations that the
applicants entered into the property with
the intention to commit the offence of
intimidation, insult or annoyance. As a
matter of fact the applicant no. 1 being the
daughter of opposite party no. 2 lived in
the disputed house prior to her marriage
and she remained in its possession after
marriage in the year 1996. There was no
entrustment of the ornaments, valuable
documents to the applicants. The details
of ornaments, valuable documents and
house
hold-goods
have
not
been
mentioned in the F.I.R.. The F.I.R. was
lodged more than two months after the
institution of civil suit by the applicant no.
1. The ingredients of Sections 406 and
448 I.P.C. are not made out. In view of
the foregoing discussion, the institution of
criminal prosecution in the present case is
sheer abuse of the process of court.

10. The inherent powers under
section 482 Cr.P.C. can 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 their 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. The scope of
exercise of power under section 482 of
the Code and the categories of cases
where this court may exercise its power
under it relating to cognizable offences to
prevent abuse of process of court or
otherwise to secure the ends of justice
have been set out by the Apex Court in
the case of State of Haryana Vs. Bhajan
1 All] Anita Mishra and others V. State of U.P. and another
225
Lal, 1992 Supp (1) SCC 335 (Cri) 426 as
hereinunder:

"(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 First Information
Report do not disclose a cognizable
offence, justifying an investigation by
police officers under section 156 (I) 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 First Information
Report 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 First
Information Report 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
First Information Report 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 the Act
concerned, providing efficacious redress
for the grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with malafides 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."

In State of M.P. Vs. A wadh Kishore
Gupta (2004) 1 SCC, the Apex Court has
held as follows:

"The section does not confer any
new 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 arises, 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
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in the course of administration of
justice on the principle quando lex aliquid
alicui concedit, concedere videtur id sine
quo res ipse 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 section itself. It is to be exercised
ex debito justitiae to do read 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 such abuse. It
would be an abuse of process of the court
to allow any action which would result
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."

11. In view of the Apex Court
decision in Adalat Prasad Vs. Rooplal
Jindal-AIR 2004 Supreme Court 4674
the only remedy for challenging the
summoning orders is under Section 482
Cr.P.C.

12. In the wake of foregoing
discussion, the allegations made in the
F.I.R. and the evidence collected in
support thereof taken as a whole do not
constitute the offences under, Sections
406 and 448 I.P.C..

13. With the result the application is
allowed. The entire proceedings of the
above mentioned Criminal case No. 1310
of 2003 including the summoning order
dated 25.1.1999 are quashed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2008

BEFORE
THE HON'BLE RAJES KUMAR, J.

Second Appeal No. 1282 of 1977

Ram Chandra Prasad Srivastava and
others

...Appellants
Versus
Kalika and others
...Respondents

Counsel for the Appellant:
Sri N.K. Saxena
Sri V.P. Mishra
Sri Sankatha Rai
Sri V.K. Rai
Sri Dr. Vinod Kumar Rai

Counsel for the Respondents:
Sri Faujdar Rai
Sri C.K. Rai

Code of Civil Procedure-Section 100Second Appeal-finding of facts, recorded
by Court below-regarding the land on
which house was constructed is not
ancestral property-even no issue framed
except the construction of house-can not