# Avtar Singh & Anr v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Application U/S 482. No. 34816 of 2022
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avtar-singh-anr-v-state-of-u-p-anr-50167
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 - Section 229,
The Prevention of Damage to Public
Property Act, 1984 - Sections 2 and 3 , The
UP Imposition of Ceiling on Land Holdings
Act, 1960 - Section 11(2), 13(2) -
Criminal proceedings can be quashed in
exercise of powers under Section 482 of
the Code of Criminal Procedure, 1973
(CrPC) when it is found that the attempt
was to give a "cloak of criminal offence"
to a dispute which is essentially of civil
nature. (Para - 12)

Applicants
accused
of
ploughing
surplus
agricultural land - filed FIR - Charge sheet filed,
5 All. Avtar Singh & Anr. Vs. State of U.P. & Anr.
1257
summoned - dispute between parties - which is
of civil nature - sought to be given a criminal
colour - only with a view to grab the land of the
applicants. (Para - 2,6)

HELD:- This civil dispute is considered an abuse
of legal process and requires quashing to ensure
justice. Petition allowed, criminal case quashed
against applicants under Prevention of Damage
to Public Property Act, 1984.(Para - 14,15)

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

List of Cases cited:

## Text

1256 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed defence of the accused cannot be
considered at this stage. Moreover, the
applicant has got a right of discharge under
Section 239 or 227/228 Cr.P.C. or 245
Cr.P.C. as the case may be, before the court
below and he is free to take all the
submissions
in
the
said
discharge
application before the trial court.

12. Whether accused instigated
deceased to take poison or not cannot be
considered at this stage. The other facts
which are relevant that accused developed
friendship with deceased and he had
relation with her for quite some time and
all of a sudden, he withdrew from
relationship, which might cause serious
depression to victim or breaking of
relationship with her might have caused
such embarrassment to her so that she may
not have thought of any other recourse but
to consume poison. It is not a case where
accused has been charged of offence only
under Section 306 on mere refusal to marry
but here the applicant had developed
relationship with victim from before. He
continued with relationship for quite some
time and later on he refused to continue
with relationship and to marry the victim.
Whether it is a case of entering into
relationship with deceased with or without
consent or whether he played any active
direct or indirect role which leads deceased
to commit suicide cannot be looked into at
this stage. At the stage of charge sheet,
Court concerned has to examine only upon
the
documents
collected
during
investigation by Police, who submitted
charge sheet and all other evidence as
alleged by the applicant will be examined
during trial when defence is adduced by
both the parties. While considering prayer
for quashing of charge sheet, this Court
cannot examine any defence of accused
which has yet to be placed before Court
below. Stage of placing the defence version
does not arise at the stage of charge sheet
and, therefore, this Court will not examine
alleged defence at this stage.

13. In the circumstances, the prayer
for quashing the proceedings of case as
well as charge sheet is refused. The
application has no force and is accordingly
dismissed.
----------
(2023) 5 ILRA 1256
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Application U/S 482. No. 34816 of 2022

Avtar Singh & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Ms. Gunjan Jadwani

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 - Section 229,
The Prevention of Damage to Public
Property Act, 1984 - Sections 2 and 3 , The
UP Imposition of Ceiling on Land Holdings
Act, 1960 - Section 11(2), 13(2) -
Criminal proceedings can be quashed in
exercise of powers under Section 482 of
the Code of Criminal Procedure, 1973
(CrPC) when it is found that the attempt
was to give a "cloak of criminal offence"
to a dispute which is essentially of civil
nature. (Para - 12)

Applicants
accused
of
ploughing
surplus
agricultural land - filed FIR - Charge sheet filed,
5 All. Avtar Singh & Anr. Vs. State of U.P. & Anr.
1257
summoned - dispute between parties - which is
of civil nature - sought to be given a criminal
colour - only with a view to grab the land of the
applicants. (Para - 2,6)

HELD:- This civil dispute is considered an abuse
of legal process and requires quashing to ensure
justice. Petition allowed, criminal case quashed
against applicants under Prevention of Damage
to Public Property Act, 1984.(Para - 14,15)

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

List of Cases cited:

1. Mohd. Ibrahim & ors. Vs St. of Bihar & anr.,
2009 (67) ACC 679;

2. I.O.C. Ltd. Vs NEPC India Ltd., 2006 Law
Suit (SC) 488,

3. Indra Mohan Goswami & anr. Vs St. of
Uttaranchal, 2007(12) SCC 1

4. St. of Haryana & Ors. Vs Ch. Bhajan Lal &
ors. , 1992 Suppl (1) SCC 335

5. Indra Mohan Goswami & Anr. Vs St. of
Uttaranchal & ors.. , 2007(12) SCC 1

6. Usha Chakraborty & Anr. Vs St. of W.B. &
anr. in SLP (Crl.) 5866 of 2022

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. Heard Ms Gunjan Jadwani, learned
counsel for the applicants, learned AGA for
the State and perused the record.

2. This application under Section 482
Cr.P.C. is filed by the applicants for
quashing of the entire proceedings of Case
No. 1053 of 2020, arising out of Case
Crime No. 1053 of 2020, under Sections 2
and 3 of the Prevention of Damage to
Public Property Act, 1984, P.S. Bilaspur,
District Rampur including the charge sheet
and the summoning order.

3. In short, allegation against the
applicants are that they were ploughing the
agricultural land, which was declared
surplus in ceiling proceedings. Applicants
are said to have cultivated the crops
standing on Khasra No. 123. For which an
FIR vide Case Crime No. 0497 of 2019,
under Section 2 and 3 of the Prevention of
Damage to Public Property Act, 1984 has
been filed, in which after investigation
charge sheet has been filed, whereupon the
applicants have been summoned.

4. Record discloses that the the land
in dispute was recorded in the name of the
predecessors of the applicants since 1338
(F) and since then they are in the cultivator
possession of the land. Thereafter when it
is revealed that the said land has been
recorded as ceiling land and on the pretext
of the said land, respondents started
interfering with the possession of the
applicants, as such they preferred writ
petition before this Court being Writ C No.
35056 of 2010 (Kulvinder Singh and others
Vs State of UP and others), wherein the
order declaring the land of the applicants as
ceiling land has been challenged and this
court vide order dated 9.9.2010 directed the
parties to maintain status quo till the
disposal of the interim relief application
filed along with suit, if filed, under Section
229 of the UPZA & LR Act or till the
disposal of the application under Section
11(2) of the UP Imposition of Ceiling on
Land Holdings Act. Against the said order,
respondents approached the Apex Court by
filing SLP CC No. 10765 of 2012, which
has also been dismissed vide judgement
and order dated 23.09.2013 and while
dismissing the SLP, the Apex Court
directed
that
the
possession
of
the
applicants and other co-teunre holders
could not be interferred with till the dispute
with regard to their ownership is not
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
decided
by
the
competent
authority.
Thereafter, on 5.11.2019, the Prescribed
Authority,
without
considering
the
objection of the applicants and others and
without taking note of the orders passed by
this court treated the land of the applicants
as surplus land in ceiling and even without
giving any opportunity to remove the crop,
proceeded to auction the crops. Against the
said order appeal under Section 13(2) of the
UP Imposition of Ceiling on Land
Holdings Act, 1960 is filed and the order of
the prescribed authority has been stayed
and the appellate court also directed that no
interference in sowing and harvesting the
crop by the appellants will be made by the
respondents
vide
its
order
dated
23.12.2019.
Hence,
the
cultivator
possession of the applicants also stands
protected vide order dated 23.12.2019
passed by the appellate court.

5. It is contended by learned counsel
for the applicants that with regard to the
land being surplus, proceedings before this
Court and before the revenue court are
already pending. It is further submitted that
the present FIR has been lodged only to
dispossess the applicants, who are in
possession over the land in dispute.

6. The main thrust of the applicants
is that the criminal proceedings in
question is liable to be quashed on the
ground that essentially there is a dispute
between the parties which is of civil
nature and which is sought to be given a
criminal colour, only with a view to grab
the land of the applicants. In support of
his arguments, he relied upon the case of
Mohd. Ibrahim and others Vs Sate of
Bihar and another, 2009 (67) ACC 679;
Indian Oil Corporation Limited Vs NEPC
India Limited, 2006 Law Suit (SC) 488,
Indra Mohan Goswami and another Vs
State of Uttaranchal, 2007(12) SCC 1.

7. On the contrary, learned AGA
does not dispute the fact that a civil
proceedings are pending between the
parties before the competent courts.

8. Before analyzing the facts
emanating from the record of the case, it
would be apt to notice the legal position
as regards the scope of powers of the
High Court under Section 482 Cr.P.C. to
interfere with the proceedings of the
aforesaid criminal case.

9. The power under Section 482 of
CrPC can be exercised by the High Court
to prevent the abuse of process of the
Court and otherwise to secure the ends of
justice. The authority of the Court exists
for advancement of justice and if any
attempt is made to abuse the said
authority, the Court has the power to
prevent that abuse. These inherent powers
of the High Court are wide in their scope.
Wider the power, higher the degree of
responsibility upon the authority vested
with such power to exercise it with
circumspection.
These
powers
are
generally exercised to secure the ends of
justice.

10. The Supreme Court in the case
of State of Haryana & Ors. vs. Ch.
Bhajan Lal & Ors reported as 1992
Suppl (1) SCC 335, has dealt with the
scope of power of High Court under
Section 482 CrPC in an elaborate manner.
Paragraphs
102
and
103,
which
enumerates seven categories of cases,
where power can be exercised under
Section 482 CrPC, are extracted as
follows:-
5 All. Avtar Singh & Anr. Vs. State of U.P. & Anr.
1259

"102. 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 extraordinary 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 channelized
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 FIR do not
disclose a cognizable offence, justifying an
investigation by police officers under 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 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.

103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases; that the court will not be
justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the
FIR or the complaint and that the
extraordinary or inherent powers do not
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
confer an arbitrary jurisdiction on the court
to act according to its whim or caprice."

11. The Hon'ble Supreme Court has
taken note of the fact that sometimes there
is a tendency to convert civil dispute in a
criminal proceeding by giving it a criminal
colour. In the case of Indra Mohan
Goswami
&
Anr.
Vs.
State
of
Uttaranchal & Ors. reported in 2007(12)
SCC 1 the Hon'ble Supreme Court has
recorded in paragraph 23 and 24 as under :-

"23. This court in a number of
cases has laid down the scope and ambit of
courts powers under Section 482 Cr.P.C.
Every High Court has inherent power to act
ex debito justitiae to do real and substantial
justice, for the administration of which
alone it exists, or to prevent abuse of the
process of the court. Inherent power under
Section 482 Cr.P.C. can be exercised:

(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.

24.
Inherent
powers
under
Section 482 Cr.P.C. though wide have to be
exercised sparingly, carefully and with
great caution and only when such exercise
is justified by the tests specifically laid
down in this section itself. Authority of the
court exists for the advancement of justice.
If any abuse of the process leading to
injustice is brought to the notice of the
court, then the Court would be justified in
preventing injustice by invoking inherent
powers in absence of specific provisions in
the Statute."

12. In a recent judgement, decided on
30.01.2023 in the case namely Usha
Chakraborty & Anr. Versus State of West
Bengal & Anr. in SLP (Crl.) 5866 of 2022,
Hon'ble Supreme Court observed that
criminal proceedings can be quashed in
exercise of powers under Section 482 of the
Code of Criminal Procedure, 1973 (CrPC)
when it is found that the attempt was to
give a ?cloak of criminal offence? to a
dispute which is essentially of civil nature.

13. Thus, it is clear that this Court can
examine whether a matter which is
essentially of a civil nature has been given
a cloak of a criminal offence. In the instant
case, perusal of record manifestly discloses
that an attempt has been made to cloak a
civil dispute with a criminal nature despite.
Record discloses that the parties are already
contesting the civil litigation with regard to
property
in
dispute
regarding
their
ownership. The dispute involves in the
present case certainly determination of
issues which are of civil nature, one can by
no means stretch the dispute to an extent,
so as to impart it a criminal colour.

14. Considering the facts and
circumstances of the case, it is a dispute
essentially of civil in nature. Therefore, it
can be said to be a case of abuse of legal
process and is required to be quashed to
secure the ends of justice.

15. For the aforesaid reasons, the
instant petition is allowed and the
proceeding of Criminal Case No. 1053
of 2020, arising out of Case Crime No.
1053 of 2020, under Sections 2 and 3 of
the Prevention of Damage to Public
Property
Act, 1984, P.S.
Bilaspur,
District Rampur against the applicants is
hereby quashed.

16. Application is thus, disposed of,
accordingly.
----------
5 All. Afjal Ansari Vs. State of U.P. & Anr.
1261
(2023) 5 ILRA 1261
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application U/S 482. No. 38478 of 2022

Afjal Ansari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Upendra Upadhyay, Sri Ajay Srivastava,
Sri Dilip Kumar (Sr. Adv.)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 147, 148, 149, 307, 302, 404 &
120-B ,The Uttar Pradesh Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 3(1),12 - Sine qua non to
prosecute an individual under the Act is
commission of an offence as a "gangster"
- It is not the requirement of law that
nobody can be prosecuted under the Act if
no FIR is registered against him - It is the
activity of an individual which is the
determinative factor for bringing him
under the mischief of the Act and nothing
else - acquittal of the accused-respondent
for
turning
the
witness
hostile
or
otherwise is not a material aspect. (Para -
18)

Applicant a social worker and politician -
accused-petitioner was an accused in offence of
brutal and gruesome murder - and six others -
accused-petitioner, along with co-accused, were
charge sheeted - trial of case got transferred by
Supreme Court to CBI Court - acquitted all
accused - all eye-witnesses and other material
witnesses turned hostile - Quashing of -
discharge
application
of
accused-petitioner
rejected - charges framed against accusedpetitioner. (Para - 1 to 6)

HELD:- Trial in the offence under the Gangsters
Act not conducted prior to trial for substantive
offence as trials of substantive offence and
Gangsters Act could not be conducted in the
same Court for the reason that the trial of
substantive offence was transferred by the
Supreme Court to New Delhi, but trial of the
offence under the Gangsters Act was not
transferred and, therefore, Section 12 of the
Gangsters Act would not apply. If an accused is
a member of a gang and commits offenses
under Chapter XVI, XVII, or Chapter XXII of the
IPC, they may be punished under the Gangsters
Act. (Para - 20)

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

List of Cases cited:

1. Mahender Chawla & ors. Vs U.O.I. & ors,
2018 (12) JT 21

2. Dharmendra Kirthal Vs St. of U.P. & anr.,
2013 0 Supreme (SC) 699

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present petition under Section
482 of the Code of Criminal Procedure,
1973 (hereinafter referred to as the "CrPC")
has been filed, seeking quashing of the
order dated 04.08.2022 whereby the
discharge application of the accusedpetitioner has been rejected by the learned
Additional Sessions Judge 1st, Ghazipur in
Special Sessions Trial No.980 of 2012
(State Vs. Afjal Ansari) under Section 3(1)
of The Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986
(hereinafter referred to as the "Gangsters
Act"), arising out of Case Crime No.01052
of
2007
lodged
at
Police
Station
Mohammadabad, District Ghazipur as well
as for quashing of the order dated