# Arun Pandey & Ors v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Application U/S 482 No. 11897 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-pandey-ors-v-state-of-u-p-anr-47827
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 352, 323 & 504 - The Code
of Criminal Procedure, 1973 - Section 482
-
Inherent
power
-
Section
2(d)
-
complaint - explanation to Section 2(d)
Cr.P.C. - relates to investigation with
regard to cognizable offences, in which,
Investigating Officer is having power to
investigate the matter - does not relate to
investigation
with
regard
to
non
cognizable
offences,
in
which,
investigation can only be carried after the
order passed by the Magistrate under
Section 155(2) Cr.P.C. - explanation to
Section 2(d) Cr.P.C. will be applicable only
to those cases, in which, investigation was
commenced for cognizable offences. (Para
-16 )

Opposite party no.2 lodged NCR against
applicants - application moved by opposite party
no.2 under Section 155(2) Cr.P.C. - Magistrate
directed to investigate the matter - charge-sheet
submitted against applicants - charge-sheet
discloses commission of non cognizable offences
- court below took cognizance and issued
summons
to
applicants
-
hence
application.(Para - 4,16)

(B) The Code of Criminal Procedure, 1973
- FIR registered - after investigation, it
appears that only non cognizable offences
disclose - charge-sheet filed only with regard to
non-cognizable offences - explanation to Section
2(d) Cr.P.C. attracts - court below shall deem
charge-sheet as a complaint - police officer, who
submitted
charge-sheet
will
be
deemed
complainant. (Para -16 )

(C) The Code of Criminal Procedure, 1973
- No FIR lodged - only non cognizable report
registered - by order of Magistrate passed under
Section 155(2) Cr.P.C. investigation conducted -
charge-sheet submitted in respect of non
cognizable offences - explanation to Section
2(d) Cr.P.C. does not attract - Magistrate will
adopt general procedure of taking cognizance -
no need to treat charge-sheet as complaint in
view of explanation to section 2(d) Cr.P.C.
(Para -16 )

HELD:-N.C.R. lodged and after order of
Magistrate passed under Section 155(2) Cr.P.C.
investigation was conducted & charge-sheet was
submitted
and
charge-sheet
discloses
commission
of
non
cognizable
offences.
Explanation to Section 2(d) Cr.P.C. does not
attract and in such matters Magistrate can take
cognizance on basis of charge-sheet itself. No
illegality in cognizance order. Prima facie
offence made out against applicants. Enmity
pending between parties proceeding pending
against the applicants cannot be quashed as
enmity is double edged weapon. (Para -
19,20,21)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

Keshav Lal Thakur Vs St. of Bihar, (1996) 11
SCC 557

## Text

11 All. Arun Pandey & Ors. Vs. State of U.P. & Anr.
375
purpose and object of advancement of justice.
In case solemn process of Court is sought to be
abused by a person with some oblique motive,
the Court has to thwart the attempt at the very
threshold. The Court cannot permit a
prosecution to go on if the case falls in one of
the Categories as illustratively enumerated by
this Court in State of Haryana V. Bhajan Lal.
Judicial process is a solemn proceeding which
cannot be allowed to be converted into an
instrument of operation or harassment. When
there are material to indicate that a criminal
proceeding is manifestly attended with mala
fide and proceeding is maliciously instituted
with an ulterior motive, the High Court will not
hesitate in exercise of its jurisdiction under
Section 482 Cr.P.C. to quash the proceeding
under Category 7 as
 enumerated in State of Haryana Vs. Bhajan
Lal, which is to the following effect:

"(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."

14. Therefore, it is very well settled that
criminal proceedings maliciously instituted with
ulterior motives can be quashed by this Court
while exercising the power under Section 482
Cr.P.C.

15. In the present case, a FIR was lodged
by the applicant No. 1 against the opposite party
No. 2 and his family members regarding death
of his daughter and for which opposite party
No. 2 is facing trial and further on 11.6.2007,
application moved by him against the
applicants under Section 156 (3) Cr.P.C. was
dismissed. Thus, it is apparent that O.P. No. 2
wanted to save his skin from the case registered
by applicant No. 1 against him and his family
members u/s 306 IPC in respect of the death of
the daughter of applicant No. 1 and also wanted
to drag applicants in that case and he with
malafide intention and ulterior motive after
more than one year, lodged the FIR of the
present case. Therefore, on the ground of
malicious prosecution, present application in
view of category No. 7 of Bhajan Lal (supra)
can succeed.

16. Further as per prosecution, applicants
entered in the house of opposite party No. 2 and
started beating him and on the intervention,
they returned back and while returning, they
abused and threatened him too. But during
investigation, allegation in respect of house
trespass and beating as well as of threatening
was found false. Thus, in my considered view
when
during
investigation,
genesis
of
occurrence was found false then ancillary
incident
cannot
stand
alone.
Therefore,
chargesheet filed only u/s 504 IPC and
proceeding against applicants in pursuance of
that chargesheet is bad.

17. In the result, the present application
u/s 482 Cr.P.C. is allowed and the impugned
charge sheet as well as proceedings in Case No.
2507 of 2008 under Section 504 IPC, P.S.
Barra, District Kanpur Nagar arising out of case
crime No. 287 of 2007 pending before ACMMIst, Kanpur Nagar, is hereby quashed.
----------
(2022) 11 ILRA 375
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 11897 of 2022

Arun Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
376 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Sudhanshu Pandey, Sri Ravi Kant Shukla

Counsel for the Opposite Parties:
G.A., Sri Dinesh Rai, Sri Maya Ram

(A) Criminal Law - Indian Penal Code,
1860 - Sections 352, 323 & 504 - The Code
of Criminal Procedure, 1973 - Section 482
-
Inherent
power
-
Section
2(d)
-
complaint - explanation to Section 2(d)
Cr.P.C. - relates to investigation with
regard to cognizable offences, in which,
Investigating Officer is having power to
investigate the matter - does not relate to
investigation
with
regard
to
non
cognizable
offences,
in
which,
investigation can only be carried after the
order passed by the Magistrate under
Section 155(2) Cr.P.C. - explanation to
Section 2(d) Cr.P.C. will be applicable only
to those cases, in which, investigation was
commenced for cognizable offences. (Para
-16 )

Opposite party no.2 lodged NCR against
applicants - application moved by opposite party
no.2 under Section 155(2) Cr.P.C. - Magistrate
directed to investigate the matter - charge-sheet
submitted against applicants - charge-sheet
discloses commission of non cognizable offences
- court below took cognizance and issued
summons
to
applicants
-
hence
application.(Para - 4,16)

(B) The Code of Criminal Procedure, 1973
- FIR registered - after investigation, it
appears that only non cognizable offences
disclose - charge-sheet filed only with regard to
non-cognizable offences - explanation to Section
2(d) Cr.P.C. attracts - court below shall deem
charge-sheet as a complaint - police officer, who
submitted
charge-sheet
will
be
deemed
complainant. (Para -16 )

(C) The Code of Criminal Procedure, 1973
- No FIR lodged - only non cognizable report
registered - by order of Magistrate passed under
Section 155(2) Cr.P.C. investigation conducted -
charge-sheet submitted in respect of non
cognizable offences - explanation to Section
2(d) Cr.P.C. does not attract - Magistrate will
adopt general procedure of taking cognizance -
no need to treat charge-sheet as complaint in
view of explanation to section 2(d) Cr.P.C.
(Para -16 )

HELD:-N.C.R. lodged and after order of
Magistrate passed under Section 155(2) Cr.P.C.
investigation was conducted & charge-sheet was
submitted
and
charge-sheet
discloses
commission
of
non
cognizable
offences.
Explanation to Section 2(d) Cr.P.C. does not
attract and in such matters Magistrate can take
cognizance on basis of charge-sheet itself. No
illegality in cognizance order. Prima facie
offence made out against applicants. Enmity
pending between parties proceeding pending
against the applicants cannot be quashed as
enmity is double edged weapon. (Para -
19,20,21)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

Keshav Lal Thakur Vs St. of Bihar, (1996) 11
SCC 557

(Delivered by Hon'ble Sameer Jain, J.)

1. Short counter affidavit filed on
behalf of the opposite party no.2 is taken on
record.

2. Heard Sri Sudhanshu Pandey,
learned counsel for the applicants, Sri
Dinesh Rai, learned counsel for the
opposite party no.2 and Dr. S.B. Maurya,
learned AGA-I for the State.

3. By way of present application,
applicants made prayer to quash the entire
proceedings of R.N. No. 99 of 2021 (State
Vs. Arun Kumar Pandey and others) arising
out of N.C.R. No. 36 of 2020, under
Sections 352, 323, 504 IPC, Police Station
Oonj, District Bhadohi pending in the court
of Judicial Magistrate-II, Bhadohi at
Gyanpur as well as cognizance order dated
06.01.2021.
11 All. Arun Pandey & Ors. Vs. State of U.P. & Anr.
377

4. Filtering out unnecessary details,
the necessary facts of the case are as:-

(i) On 15.05.2020 opposite party
no.2 lodged a NCR against the applicants
under Sections 352, 323, 504 IPC at Police
Station Oonj, District Bhadohi vide NCR
No. 36 of 2020 and on the application
moved by opposite party no.2 under
Section
155(2)
Cr.P.C.
Magistrate
concerned directed to investigate the
matter.

(ii) Pursuant to the order passed
by Magistrate concerned under Section
155(2) Cr.P.C., investigation of the case
was conducted and after investigation
charge-sheet has been submitted against the
applicants under Section 352, 323, 504 IPC
and court below on 06.01.2021 took the
cognizance and issued summons to the
applicants.

5. Learned counsel for the applicants
submitted that as charge-sheet in the
present matter was
submitted under
Sections 352, 323, 504 IPC and all the
offences are non-cognizable, therefore, in
view of explanation to Section 2(d) Cr.P.C.
cognizance order dated 06.01.2021 passed
by the court below is bad. He further
submitted that as per explanation to
Section 2(d) Cr.P.C. if after investigation
charge-sheet was submitted in respect to
the non-cognizable offences then chargesheet must be deemed to be a complaint
and the police officer, who conducted the
investigation shall be deemed to the
complainant of the case, therefore, in such
matters, proceeding can only be initiated
as a complaint case but in the present
matter the court did not treat the chargesheet as a complaint and court below in
routine manner took the cognizance on the
charge-sheet and issued summons to the
applicants, therefore, cognizance order
dated 06.01.2021 is illegal.

6. Learned counsel for the applicants
further submitted that the entire allegation
made against the applicants in the NCR
and in the statements of the witnesses are
totally false and baseless and in fact
applicants neither made any assault nor
caused any injury. He further submitted
that a dispute in respect of property is
pending between the parties and in this
regard a civil suit is also pending and only
due to this reason opposite party no.2
implicated the applicants in the present
matter, therefore, from this angle too
charge-sheet filed against the applicants is
bad.

7. Per contra, learned AGA and
learned counsel for the opposite party no.2
submitted that there is no illegality in the
summoning order dated 06.01.2021 as after
perusing the entire documents available on
record, court below took the cognizance
and issued summons to the applicants and
even if there is any irregularity in taking
the cognizance then it does not vitiate the
proceedings pending against the applicants.
Learned AGA further submitted that from
the perusal of the NCR and statements of
witnesses including injured witnesses, the
complicity of applicants reveals in the
present matter and prima facie offences
under Section 352, 323, 504 IPC are made
out against them and there is also injury
report of the injured on record thus there is
no illegality in the charge-sheet submitted
against the applicants. He further submitted
that defence taken by the applicants cannot
be appreciated at this stage.

8. I have heard counsel for the parties
and perused the record of the case.
378 INDIAN LAW REPORTS ALLAHABAD SERIES

9. From the record, it reflects that
on 15.05.2020 opposite party no.2 lodged
a NCR under Sections 352, 323, 504 IPC
against the applicants and after the order
of Magistrate concerned passed under
Section 155(2) Cr.P.C. investigation was
conducted
and
charge-sheet
was
submitted against the applicants on
09.12.2020.

10. From the perusal of the chargesheet dated 09.12.2020 it appears that it
was filed against the applicants under
Sections 352, 323, 504 IPC. Record
further suggests that on the charge-sheet
dated 09.12.2020, court below after
perusing the case
diary and other
documents on record, on 06.01.2021 took
the cognizance and issued summons to
the applicants.

11. The charge-sheet of the present
matter was submitted under Sections 352,
323,
504
IPC,
thus
it
discloses
commission of non-cognizable offences.

12. From the perusal of the
cognizance and summoning order dated
06.01.2021 it reflects that court below on
the
basis
of
charge-sheet
dated
09.12.2020 took the cognizance and did
not treat the charge-sheet as complaint,
therefore, question arises in view of
explanation to Section 2(d) Cr.P.C.
whether cognizance taken by the court
below is in accordance with law.

13. Section 2(d) Cr.P.C. defines the
complaint and its explanation prescribed
the procedure if after investigation,
charge-sheet discloses commission of non
cognizable offences.

14. Section 2(d) Cr.P.C. runs as
follows:-

"2 (d) complaint" means any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report.

Explanation.- A report made by
a police officer in a case which discloses,
after investigation, the commission of a
non- cognizable offence shall be deemed
to be a complaint; and the police officer by
whom such report is made shall be
deemed to be the complainant;"

15. From the perusal of the
explanation of Section 2(d) Cr.P.C., it is
apparent that if after investigation it reveals
that only non cognizable offences disclose
and thereafter in non cognizable offences a
report is submitted under Section 173(2)
Cr.P.C. then the court shall treat the chargesheet as a complaint and the police officer
who filed the report under Section 173(2)
Cr.P.C. shall be deemed to be the
complainant of the case.

16. Therefore, from the perusal of the
explanation to Section 2(d) Cr.P.C. it is
undoubtedly
clear
that
it
relates
to
investigation with regard to cognizable
offences, in which, Investigating Officer is
having power to investigate the matter and
it does not relate to investigation with
regard to non cognizable offences, in
which, investigation can only be carried
after the order passed by the Magistrate
under Section 155(2) Cr.P.C. Therefore, if
the FIR is registered and after investigation,
it appears that only non cognizable offences
disclose and charge-sheet is filed only with
regard to non-cognizable offences then
explanation to Section 2(d) Cr.P.C. attracts
and in such cases the court below shall
deem the charge-sheet as a complaint and
11 All. Arun Pandey & Ors. Vs. State of U.P. & Anr.
379
police officer, who submitted the chargesheet will be deemed complainant but in
cases where no FIR is lodged and only non
cognizable report is registered and by the
order of the Magistrate passed under
Section 155(2) Cr.P.C. investigation is
conducted and charge-sheet is submitted in
respect of non cognizable offences then
explanation to Section 2(d) Cr.P.C. does not
attract and in such cases Magistrate will
adopt the general procedure of taking
cognizance and after taking cognizance on
the charge-sheet may proceed further and in
such cases there is no need to treat the
charge-sheet as complaint in view of
explanation to section 2(d) Cr.P.C.

17. The Apex Court in the case of
Keshav Lal Thakur Vs. State of Bihar
(1996) 11 SCC 557 observed in paragraph
no.3 en passant:-

"We need not go into the question
whether in the facts of the instant case the
above view of the High Court is proper or
not for the impugned proceeding has got to
be quashed as neither the police was
entitled to investigate into the offence in
question nor the Chief Judicial Magistrate
to take cognizance upon the report
submitted
on
completion
of
such
investigation. On the own showing of the
police, the offence under Section 31 of the
Act is non cognizable and therefore the
police could not have registered a case for
such an offence under Section 154 Cr. P.C.
of course, the police is entitled to
investigate into a non-cognizable offence
pursuant to an order of a competent
Magistrate under Section 155 (2) Cr. P.C.
but, admittedly, no such order was passed
in the instant case. That necessarily means,
that neither the police could investigate
into the offence in question nor submit a
report on which the question of taking
cognizance could have arisen. While on
this point, it may be mentioned that in
view of the proviso to Section 2 (d) Cr.
P.C., which defines 'complaint', the police
is entitled to submit, after investigation, a
report
relating
to
a
non-cognizable
offence in which case such a report is to
be treated as a 'complaint' of the police
officer concerned, but that explanation
will not be available to the prosecution
here as that related to a case where the
police
initiates
investigation
into
a
cognizable offence - unlike the present
one - but ultimately finds that only a noncognizable offence has been made out."

18. Thus, in view of Keshav Lal
Thakur (supra) the explanation to Section
2(d) Cr.P.C. will be applicable only to those
cases,
in
which,
investigation
was
commenced for cognizable offences.

19. In case at hand, admittedly non
cognizable
report
was
lodged
under
Sections 352, 323, 504 IPC and after the
order of the Magistrate passed under
Section 155(2) Cr.P.C. investigation was
conducted and charge-sheet was submitted
under Section 352, 323, 504 IPC and
charge-sheet discloses commission of non
cognizable offences, therefore, in present
matter explanation to Section 2(d) Cr.P.C.
does not attract and in such matters
Magistrate can take the cognizance on the
basis of charge-sheet itself.

20. Therefore, from the above
discussion, I find no illegality in the
cognizance order dated 06.01.2021 passed
by the court below.

21. Further, from the perusal of record
it reflects that prima facie offence under
Sections 352, 323, 504 IPC are made out
against the applicants, therefore, on the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
account of enmity pending between the
parties proceeding pending against the
applicants cannot be quashed as enmity is
double edged weapon.

22. Therefore, from the discussion
made above, I find no merit in the
arguments advanced by learned counsel for
the applicants.

23.

Accordingly,
the
instant
application is dismissed.
----------
(2022) 11 ILRA 380
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

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

Application U/S 482 No. 14869 of 2022

M/s Shriram Balaji Traders & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Durlabh Kumar Pandey, Sri Rajesh
Chandra Dwivedi, Sri C.L. Pandey (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Negotiable Instruments
Act, 1881- Sections 138 &139 - The Code
of criminal procedure, 1973 - Section 482
- Inherent power - complaint cannot be
thrown at the threshold even if it does not
make a specific averment with regard to
service of notice on the drawer on a given
date - when the facts have to be
established by way of evidence - Court
while exercising the powers under section
482 of Cr.P.C., cannot interfere with such
proceedings. (Para -15,17 )

Complaint
under
section
138
NI
Act
-
Summoning order - quashing of - Disputed
service of notice - cheque stolen - nothing on
record to show cheque stolen - disputed
questions of fact .

HELD:-Factum of disputed service of notice
requires adjudication on the basis of evidence,
which can only be done and appreciated by the
trial court. No grounds for quashing of
proceedings under section 138 of NI Act. - No
illegality or infirmity in summoning order.(Para
-16,17,18)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. C.C. Alavi Haji Vs Palapetty Muhammed &
anr., (2007) 6 SCC 555

2. Ajeet Seeds Ltd. Vs K. Gopala Krishnaiah,
2014 12 SCC 685

3.
Bharat
Barrel
&
Drum
Manufacturing
Company Vs Amin Chand Pyarelal, (1999) 3 SCC
35

4. Basalingappa Vs Mudibasappa ,(2019) 5 SCC
418

5. Ranjit Vs St. of U.P. & anr. , Application U/s
482 No. 47282 of 2019

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

1. Heard Mr. C.L. Pandey, Senior
Advocate assisted by Mr. Durlabh Kumar
Pandey, learned counsel for the applicants
and Mr. Amit Singh Chauhan, learned AGA
for the State and perused the records.

2. The present application under
Section 482 Cr.P.C. has been filed to quash
the summoning order dated 31.03.2021 as