# Babir Singh Chandel v. State of U.P.& Ors

- **Citation:** (2019) 1 ILRA 42
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-23
- **Case number:** Criminal Misc. Writ Petition No.18596 of 2019
- **Bench:** Ramesh Sinha, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babir-singh-chandel-v-state-of-u-p-ors-44484
- **Pages:** 5

## Headnote

A. Article 226:- Writ Petition for quashing
F.I.R. or a charge-sheet should
be
exercised
sparingly
and
only
in
exceptional cases and Courts should not
ordinarily
interfere
with
the
investigations of cognizable offences.
(Para 5)

The questions of fact cannot be examined by
this Court in proceedings under Article 226 of
the Constitution of India.
(Para 9 &10)

Writ petition dismissed. (Para 13).

Chronological list of Cases Cited:-

## Text

42 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Dealing with the complicity of
applicant-accused and in light of the
material on record, Mr. N.D. Rai, learned
Special Public Prosecutor (Narcotics)
vehemently submits that no case for bail
is made out and the bail application of the
present applicant is liable to be rejected. It
is lastly contended that the innocence of
the applicant cannot be adjudged at this
stage, therefore, he do not deserve any
indulgence.

22.

Having
considered
the
submissions made by the learned counsel
for the applicant, the learned A.G.A. for
the State and upon perusal of the evidence
brought on record as well as the
complicity of the applicant, I do not find
any good reason to exercise my discretion
in favour of the accused applicant. Thus,
the bail application stand rejected.

23. However, the trial court is
expected to gear up the trial of the
aforesaid case and conclude the same as
expeditious, as possible from the date of
receipt of certified copy of this order,
keeping in view the law laid down by the
Apex Court in the case of Alakh Alok
Srivastava Vs. Union of India and
Another reported in AIR 2018 (SC)
2004, if there is no legal impediment, in
accordance with law, without granting
any unnecessary adjournment to either of
the parties, provided the applicant fully
cooperate in conclusion of the trial, if
there is no other legal impediment.

24. Office is directed to transmit a
certified copy of this order to the court
concerned within a fortnight.

25. It is clarified that any
observations, if any, made by this Court
are strictly confined to the disposal of
the bail application and must not be
construed to have any reflection on the
ultimate merits of the case
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Misc. Writ Petition No.18596 of 2019

Babir Singh Chandel ...Petitioner
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Sri Sukendu Pal Singh

Counsel for the Respondents:
G.A.

A. Article 226:- Writ Petition for quashing
F.I.R. or a charge-sheet should
be
exercised
sparingly
and
only
in
exceptional cases and Courts should not
ordinarily
interfere
with
the
investigations of cognizable offences.
(Para 5)

The questions of fact cannot be examined by
this Court in proceedings under Article 226 of
the Constitution of India.
(Para 9 &10)

Writ petition dismissed. (Para 13).

Chronological list of Cases Cited:-

1. AIR 1992 SC 605 State of Haryana and
others Vs. Ch. Bhajan Lal

2. Ajit Singh @ Muraha v. State of U.P. (2006
(56) ACC 433)

3. Satya Pal v. State of U.P. (2000 Cr.L.J.569)
1 All. Babir Singh Chandel Vs. State of U.P. & Ors.
43
4. State of Haryana v. Bhajan Lal (AIR 1992 SC
604)

5. R. Kalyani v. Janak C. Mehta and Others
reported in 2009 (1) SCC 516

6. State of Haryana vs. Bhajan Lal (supra)

7. Rupan Deol Bajaj v. K.P.S. Gill (1995) SCC
(Cri) 1059, Rajesh Bajaj v. State of NCT of
Delhi (1999) 3 SCC 259

8. Medchl Chemicals & Pharma (P) Ltd. v.
Biological E Ltd. & Ors 2000 SCC (Cri) 615(E-2)

(Delivered by Hon'ble Ramesh Sinha, J.)
 Hon'ble Raj Beer Singh, J.)

1. Heard Sri Sukendu Pal Singh,
learned counsel for the petitioner, Sri G.P.
Singh, learned A.G.A. for the Staterespondents and perused the material on
record.

2. This writ petition has been filed
with the prayer to issue a writ, order or
direction in the nature of certiorari
quashing the impugned F.I.R. Dated
25.06.2019, which has been registered as
Crime No. 0201 of 2019, under Sections
13 (1)(b), 13 (2) of Prevention of
Corruption Act, Police Station Kakadeo,
District Kanpur Nagar.

3. Learned counsel for the petitioner has
argued that no offence under Sections 13 (1)
(b) and 13 (2) of Prevention of Corruption Act
is made out against the petitioner and that
impugned FIR is abuse of the process of law.
It has been submitted that petitioner has
retired from police service on 28.09.2011 and
now, he is a practising Advocate and his wife,
who is also an Advocate, was running
business of transport and a coaching centre.
Besides these sources of income, she has also
income from her agricultural land but her
income from these sources, was not taken into
consideration. Similarly, income of the
petitioner from agricultural land, was also not
taken into consideration. It was further
submitted that earlier an inquiry was
conducted by Ram Suresh Yadav, Deputy
Superintendent of Police, Kanpur Unit of
Bhrastachar Nivaran Sangthan but the charges
were not proved and inquiry was closed. It has
also been submitted that the amount incurred
in purchase of immovable property and
vehicles was duly explained but those facts
have not taken into consideration by the
concerned Enquiry Officer and similarly his
income tax returns were also not considered in
correct perspective. It was pointed out that an
inquiry was also conducted by Kanpur Unit of
Bhrastachar Nivaran Sangthan and a report
has been submitted by the said Unit on
22.02.2014 and perusal of the said report
shows that the allegations of disproportionate
assets were not proved against the petitioner.
Further, there were discrepancy in amount
shown towards expenditure and there was also
mathematical error in totalling in expenditure
head in the FIR. It was stated that perusal of
the FIR and material brought on record shows
that no such case is made out against the
petitioner that assets of petitioner were not in
excess than of his income and thus, the
impugned FIR is illegal and mala fide and
thus, liable to be quashed.

4. Learned A.G.A. has submitted that
there are clear allegations against the
petitioner that the petitioner has incurred an
amount of Rs. 97, 51, 731/- in various
expenditures,
which
was
more
Rs.
35,86,552/- than his source of income and
that a prima facie under Sections 13 (1) (b)
and 13 (2) of Prevention of Corruption Act
is made out against the petitioner. At this
stage, disputed questions of fact cannot be
examined and merely it is to be seen
whether a prima facie case is made out
against the petitioner or not. It was argued
44 INDIAN LAW REPORTS ALLAHABAD SERIES
that no case for quashing of the impugned
FIR is made out and the petition filed by the
petitioner is liable to be dismissed.

5. The legal position on the issue of
quashing of FIR or criminal proceedings
is well-settled that the jurisdiction to
quash a complaint, FIR or a charge-sheet
should be exercised sparingly and only in
exceptional cases and Courts should not
ordinarily interfere with the investigations
of cognizable offences. However, where
the allegations made in the FIR or the
complaint even if 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, the FIR or the
charge-sheet may be quashed in exercise
of powers under Article 226 or inherent
powers under Section 482 of the Cr.P.C.
In the well celebrated judgment reported
in AIR 1992 SC 605 State of Haryana and
others Vs. Ch. Bhajan Lal, Supreme Court
has carved out certain guidelines, wherein
FIR or proceedings may be quashed but
cautioned that the power to quash FIR or
proceedings should be exercised sparingly
and that too in the rarest of rare cases.
Guidelines 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 to
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 156(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 every 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."

6. The Full Bench of this Court in
Ajit Singh @ Muraha v. State of U.P.
(2006 (56) ACC 433) reiterated the view
taken by the earlier Full Bench in Satya
Pal v. State of U.P. (2000 Cr.L.J. 569)
after considering the various decisions
including State of Haryana v. Bhajan
1 All. Babir Singh Chandel Vs. State of U.P. & Ors.
45
Lal (AIR 1992 SC 604) that there can be
no interference with the investigation or
order staying arrest unless cognizable
offence is not ex-facie discernible from
the allegations contained in the F.I.R. or
there is any statutory restriction operating
on the power of the Police to investigate a
case.

7. In the case of R. Kalyani v.
Janak C. Mehta and Others reported in
2009 (1) SCC 516, the Hon'ble Apex
Court has held as under:

(1) The High Court ordinarily
would
not
exercise
its
inherent
jurisdiction
to
quash
a
criminal
proceeding and, in particular, a First
Information Report unless the allegations
contained therein, even if given face value
and taken to be correct in their entirety,
disclosed no cognizable offence.

(2) For the said purpose, the
Court,
save
and
except
in
very
exceptional circumstances, would not
look to any document relied upon by the
defence.

(3) Such a power should be
exercised very sparingly. If the allegations
made in the FIR disclose commission of
an offence, the court shall not go beyond
the same and pass an order in favour of
the accused to hold absence of any mens
rea or actus reus.

(4) If the allegation discloses a
civil dispute, the same by itself may not
be a ground to hold that the criminal
proceedings should not be allowed to
continue."

8. Keeping in view the above stated
settled position of law, in the instant case,
perusal of the record shows that there are
allegations against the petitioner in the
FIR that on the basis of inquires, it has
been found that petitioner had incurred an
amount of Rs. 97,51,731/- under various
heads of expenditure during relevant time,
which was in excess of Rs. 35,86,552/-
than his source of income and that
petitioner has failed to furnish any
satisfactory reply in that regard. In the
FIR, details of various transactions of sale
and purchase etc. have been given. The
FIR was lodged after a detailed inquiry. It
is apparent from the FIR and material on
record that a prima facie cognizable
offence under Sections 13 (1) (b) and 13
(2) of Prevention of Corruption Act is
made out against the petitioner. The case
of the petitioner does not fall in any of the
category enumerated by the Apex Court
through various judicial pronouncements
for quashing of the FIR.

9. It is well settled that at this stage,
this Court has to eschew itself from
embarking upon a roving enquiry into the
last details of the case. It is also not
advisable to adjudge whether the case
shall ultimately end in submission of
charge sheet and then eventually in
conviction or not. Only a prima facie
satisfaction of the court about the
existence
of
sufficient
ingredients
constituting the offence is required in
order to see whether the F.I.R. requires to
be investigated or deserves quashing. The
ambit of investigation into the alleged
offence is an independent area of
operation
and
does
not
call
for
interference in the same except in rarest
of rare cases.

10. As noted in the case of State of
Haryana vs. Bhajan Lal (supra), power
of quashing of FIR or proceedings should
be
exercised
sparingly
and
with
circumspection and that too in the rarest
of rare cases. In the judgments of Rupan
46 INDIAN LAW REPORTS ALLAHABAD SERIES
Deol Bajaj v. K.P.S. Gill; reported in
(1995) SCC (Cri) 1059, Rajesh Bajaj v.
State of NCT of Delhi; reported in
(1999)
3
SCC
259
and
Medchl
Chemicals & Pharma (P) Ltd. v.
Biological E Ltd. & Ors; reported in
2000 SCC (Cri) 615, the Apex Court
clearly held that if a prima facie case is
made out disclosing the ingredients of the
offence, Court should not quash the
complaint. However, it was held that if
the allegations do not constitute any
offence as alleged and appear to be
patently absurd and improbable, Court
should
not
hesitate
to
quash
the
complaint. The note of caution was
reiterated that while considering such
petitions the Courts should be very
circumspect, conscious and careful. Thus,
there is no controversy about the legal
proposition that in case a prima facie case
is made out, the FIR or the proceedings in
consequence thereof cannot be quashed.
Here it would also be pertinent to mention
that questions of fact cannot be examined
by this Court in proceedings under Article
226 of the Constitution of India.

11. The submissions raised by
learned counsel for the petitioners call for
determination on questions of fact which
may be adequately discerned either
through proper investigation or which
may be adjudicated upon only by the trial
court and even the submissions made on
points of law
can also
be
more
appropriately gone into only by the trial
court in case a charge sheet is submitted
in this case. The perusal of the record
makes out, prima facie, offences at this
stage and there appears to be sufficient
ground for investigation in the case. Here
it would be pertinent to mention that
probabilities of the prosecution version
cannot be analysed at this stage. Likewise,
the allegations of mala fides of the
informant are of secondary importance.
(vide State of Orissa v. Saroj Kumar
Sahoo (2005) 13 SCC 540).

12. In view of the aforesaid,
considering the allegations made in the
FIR and material brought on record, it
cannot be said that no prima facie is made
out against the petitioner rather there
appears to be sufficient ground for
investigation in the matter. Accordingly,
we do not find any justification to quash
the impugned F.I.R.

13. The petition lacks substance and
thus,
writ
petition
is,
accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SRIVASTAVA, J.

CIVIL MISC. WRIT PETITION No.22648 of 2019
(u/s -482 Cr. P.C.)

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

Counsel for the Applicants:
Sri I.K. Chaturvedi, Sri Ganga Bhushan
Mishra.

Counsel for the Opposite Parties:
A.G.A., Ruchita Jain, Sri Pratap Kanchan
Singh.

A. Criminal Procedure Code, 1973 -
Section 482 Cr.P.C - If without going
into the evidence and fact, a conclusion
is possible that there is misuse of the
process of the Court, only then the
jurisdiction under section 482 Cr.P.C. has
to
be
invoked.