# Bhagwan Devi & Anr v. State Of U.P. & Anr

- **Citation:** (2025) 8 ILRA 364
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-27
- **Case number:** Matters Under Article 227 No. 8432 of 2021
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-devi-anr-v-state-of-u-p-anr-53684
- **Pages:** 14

## Headnote

C.S.C.,
Abhishek
Pandey,
Nuzhat
Ali
Siddiqui, Shrawan Kumar

Issue for Consideration
Whether a civil dispute between the petitioners
and the respondent No.2 has been converted
into criminal - During pendency of the civil suit,
criminal proceedings could not have been
initiated.

Head Notes
The Constitution of India, 1950-Article
227 - The Code of Criminal Procedure,
1973- Section 239 - Civil dispute between
the petitioners and the respondent No has
been converted into criminal - Petitioners
claiming themselves to be the wife and
the daughter of Late Santram ot their
names mutated in revenue records - Name
of petitioners could also not have been
recorded in his family register legally but
the petitioners knowingly got their names
recorded showing them wife and daughter
respectively - Alleged offences are prima
facie made out - Petition dismissed.

Held- Petitioners are claiming themselves to
be the wife and the daughter of Late
Santram, got their names recorded in Family
Register and also got a forged sale deed
prepared and executed fraudulently from Late
Santram
-
As
per
Hindu
law,
during
subsistence of first marriage and lifetime of
the first wife, a person cannot solemnize
second marriage and accordingly a lady can
not marry, therefore, even if married, the
second wife cannot be legally wedded wife
and her daughter, the daughter of the person
to whom she marries. The name of petitioners
could also not have been recorded in his
family register legally but the petitioners
knowingly got their names recorded showing
them wife and daughter respectively
-
Allegations and the material placed on record
by the prosecution, considering which the
cognizance has been taken rejecting the final
report
and
the
petitioners
have
been
summoned, have even not been disputed or
specifically denied, considering which the
alleged offences are prima facie made out -
No illegality or error in the impugned orders.
(Para 32, 33, 36 & 37) (E-15)
Case Law Cited
Naresh Kumar & Another Vs. The State of
Karnataka & Another; (2024) SCC Online SC
268; Jit Vinayak Arolkar Vs. State of Goa &
Others; (2025) SCC Online SC 31 ; Vishnu
Kumar Shukla and Another Vs. The State of
Uttar Pradesh and Another; 2023 LiveLaw
(SC) 1019;State of Rajasthan Vs. Fatehkaran
Mehdu; (2017) 3 SCC 198;Radhey Shyam &
Another Vs. Chhabi Nath and Others; 2015
LawSuit(SC) 190;Asian Resurfacing of Road
Agency
P.
Ltd.
vs
Central
Bureau
of
Investigation; (2018) 16 SCC 299;Kathyayini
v. Sidharth P.S. Reddy & Others; (2025) SCC
Online SC 1428;Paramjeet Batra Vs. State of
Uttarakhand; (2013) 11 SCC 673;State of
Tamil Nadu Vs. R. Soundirarasu and Others;
(2023) 6 SCC 768;State of Karnataka Vs. M.R.
Hiremath; (2019) 7 SCC 515

List of Acts
The Constitution of India, 1950- The Code
of Criminal Procedure, 1973

List of Keywords
During
pendency
of
civil
suit,
criminal
proceedings
initiated;
Civil
and
criminal
proceedings
simultaneously;
Complaint
disclosing civil transactions may also have a
criminal texture; Word 'groundless' used in
Section 239 of the CrPC; Materials placed not
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
365
sufficient to make out a prima facie case;
Alleged offences prima facie made out

Case Arising From
Judgment and order dated 08.03.2021 passed
by learned Sessions Judge, Ambedkar Nagar in
Criminal Revision No.45 of 2020 (Bhagwan Devi
and Another Vs. State of U.P. and Another) and
the order dated 19.02.2020 passed by learned
Chief Judicial Magistrate, Ambedkar Nagar in
Criminal Case No.4610 of 2019 (State Vs.
Bhagwan Devi and Another) arising out of Case
Crime No.258/2016, under Sections 419, 420,
467, 468 and 471 I.P.C., Police Station Kotwali
Tanda, District Ambedkar Nagar

Appearances for Parties
Counsel
for
Petitioner
:-
Sushil
Kumar
Singh,Vijai
Kumar
Tripathi
Counsel
for
Respondent :- C.S.C., Abhishek Pandey, Nuzhat
Ali Siddiqui, Shrawan Kumar

## Text

_Characters 0–39,902 of 47,776. This is a partial read: ask again with offset=39902 for what follows._

364 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 8 ILRA 364
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Matters Under Article 227 No. 8432 of 2021

Bhagwan Devi & Anr. ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sushil Kumar Singh, Vijai Kumar Tripathi

Counsel for the Respondents:
C.S.C.,
Abhishek
Pandey,
Nuzhat
Ali
Siddiqui, Shrawan Kumar

Issue for Consideration
Whether a civil dispute between the petitioners
and the respondent No.2 has been converted
into criminal - During pendency of the civil suit,
criminal proceedings could not have been
initiated.

Head Notes
The Constitution of India, 1950-Article
227 - The Code of Criminal Procedure,
1973- Section 239 - Civil dispute between
the petitioners and the respondent No has
been converted into criminal - Petitioners
claiming themselves to be the wife and
the daughter of Late Santram ot their
names mutated in revenue records - Name
of petitioners could also not have been
recorded in his family register legally but
the petitioners knowingly got their names
recorded showing them wife and daughter
respectively - Alleged offences are prima
facie made out - Petition dismissed.

Held- Petitioners are claiming themselves to
be the wife and the daughter of Late
Santram, got their names recorded in Family
Register and also got a forged sale deed
prepared and executed fraudulently from Late
Santram
-
As
per
Hindu
law,
during
subsistence of first marriage and lifetime of
the first wife, a person cannot solemnize
second marriage and accordingly a lady can
not marry, therefore, even if married, the
second wife cannot be legally wedded wife
and her daughter, the daughter of the person
to whom she marries. The name of petitioners
could also not have been recorded in his
family register legally but the petitioners
knowingly got their names recorded showing
them wife and daughter respectively
-
Allegations and the material placed on record
by the prosecution, considering which the
cognizance has been taken rejecting the final
report
and
the
petitioners
have
been
summoned, have even not been disputed or
specifically denied, considering which the
alleged offences are prima facie made out -
No illegality or error in the impugned orders.
(Para 32, 33, 36 & 37) (E-15)
Case Law Cited
Naresh Kumar & Another Vs. The State of
Karnataka & Another; (2024) SCC Online SC
268; Jit Vinayak Arolkar Vs. State of Goa &
Others; (2025) SCC Online SC 31 ; Vishnu
Kumar Shukla and Another Vs. The State of
Uttar Pradesh and Another; 2023 LiveLaw
(SC) 1019;State of Rajasthan Vs. Fatehkaran
Mehdu; (2017) 3 SCC 198;Radhey Shyam &
Another Vs. Chhabi Nath and Others; 2015
LawSuit(SC) 190;Asian Resurfacing of Road
Agency
P.
Ltd.
vs
Central
Bureau
of
Investigation; (2018) 16 SCC 299;Kathyayini
v. Sidharth P.S. Reddy & Others; (2025) SCC
Online SC 1428;Paramjeet Batra Vs. State of
Uttarakhand; (2013) 11 SCC 673;State of
Tamil Nadu Vs. R. Soundirarasu and Others;
(2023) 6 SCC 768;State of Karnataka Vs. M.R.
Hiremath; (2019) 7 SCC 515

List of Acts
The Constitution of India, 1950- The Code
of Criminal Procedure, 1973

List of Keywords
During
pendency
of
civil
suit,
criminal
proceedings
initiated;
Civil
and
criminal
proceedings
simultaneously;
Complaint
disclosing civil transactions may also have a
criminal texture; Word 'groundless' used in
Section 239 of the CrPC; Materials placed not
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
365
sufficient to make out a prima facie case;
Alleged offences prima facie made out

Case Arising From
Judgment and order dated 08.03.2021 passed
by learned Sessions Judge, Ambedkar Nagar in
Criminal Revision No.45 of 2020 (Bhagwan Devi
and Another Vs. State of U.P. and Another) and
the order dated 19.02.2020 passed by learned
Chief Judicial Magistrate, Ambedkar Nagar in
Criminal Case No.4610 of 2019 (State Vs.
Bhagwan Devi and Another) arising out of Case
Crime No.258/2016, under Sections 419, 420,
467, 468 and 471 I.P.C., Police Station Kotwali
Tanda, District Ambedkar Nagar

Appearances for Parties
Counsel
for
Petitioner
:-
Sushil
Kumar
Singh,Vijai
Kumar
Tripathi
Counsel
for
Respondent :- C.S.C., Abhishek Pandey, Nuzhat
Ali Siddiqui, Shrawan Kumar

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Sushil Kumar Singh,
learned counsel for the petitioners, Sri
Shrawan Kumar, learned counsel for the
respondent no.2 and learned A.G.A. for the
State.

2. The instant petition under Article
227 of the Constitution of India has been
filed for setting aside the judgment and
order dated 08.03.2021 passed by learned
Sessions Judge, Ambedkar Nagar in
Criminal
Revision
No.45
of
2020
(Bhagwan Devi and Another Vs. State of
U.P. and Another) and the order dated
19.02.2020
passed
by
learned
Chief
Judicial Magistrate, Ambedkar Nagar in
Criminal Case No.4610 of 2019 (State Vs.
Bhagwan Devi and Another) arising out of
Case Crime No.258/2016, under Sections
419, 420, 467, 468 and 471 I.P.C., Police
Station Kotwali Tanda, District Ambedkar
Nagar, by means of which, application
under Section 239 of the Code of Criminal
Procedure, 1973 (here-in-after referred as
CrPC) filed by the petitioners has been
dismissed.

3. Learned counsel for the petitioners
submitted that a civil dispute between the
petitioners and the respondent No.2 has
been
converted
into
criminal.
The
respondent No.2 had already filed a suit for
cancellation of will executed in favour of
the petitioner No.1 by the husband of the
petitioner No.1 and the respondent No.2,
which is pending before a civil court, thus,
during pendency of the civil suit, criminal
proceedings could not have been initiated.

4. He further submitted that on the
basis of registered will executed in favour
of the petitioner No.1, the name of the
petitioner No.1 has been mutated in the
revenue records. He further submitted that
while filing application for lodging of
F.I.R. and also in the F.I.R., there is
material concealment as the fact of filing of
the civil suit and the mutation in favour of
the petitioner No.1 have not been disclosed,
otherwise the version of the respondent
No.2 is identical in both i.e. in the civil suit
as well as the F.I.R.

5. He further submitted that the
mutation in favour of the petitioner No.1
was made after affording opportunity and
recording the statements of the witnesses of
the will. The order passed in the mutation
proceedings has not been challenged. It has
further been submitted that the will is only
with regard to the agricultural properties
situated at Tanda, District Ambedkar Nagar
and Late Santram gave the properties of
Delhi to the respondent No.2. He further
submitted that the application for discharge
filed by the petitioners was dismissed by
the learned trial court without considering
the grounds taken in the application. The
366 INDIAN LAW REPORTS ALLAHABAD SERIES
learned revisional court also dismissed the
revision without considering the grounds
raised by the petitioners, hence, the present
petition has been filed challenging the
orders passed by the learned trial court as
well as the learned revisional court. He
further submitted that the impugned orders
alongwith the proceedings of the criminal
case are liable to be set aside.

6. Learned counsel for the petitioners
has relied upon judgments passed by the
Hon'ble Supreme Court of India in the
cases of Naresh Kumar & Another Vs.
The State of Karnataka & Another;
(2024) SCC Online SC 268, Jit Vinayak
Arolkar Vs. State of Goa & Others;
(2025) SCC Online SC 31 and Vishnu
Kumar Shukla and Another Vs. The
State of Uttar Pradesh and Another;
2023 LiveLaw (SC) 1019.

7. Per contra, learned counsel for the
respondent No.2 submitted that this petition
under Article 227 of the Constitution of
India, challenging the orders passed by the
learned courts below, is not maintainable.
He further submitted that the impugned
orders have been passed rightly and in
accordance with law, therefore, nothing
could be pointed out against the impugned
orders.

8. He further submitted that the
registration of will deed is not impediment
in lodging of the F.I.R. in regard to the
criminal act of the accuseds i.e. the
petitioners. He also submitted that second
wife is not recognized in the Hindu Law,
therefore, the names of the petitioners
could not have been mutated in the revenue
records. He further submitted that the will
does not disclose any act of the respondent
No.2. He further submitted that no ground
for discharge of the petitioners is made out
and there is sufficient material on record
placed by the prosecution to frame charges
against the petitioners. Thus, the impugned
orders have rightly been passed and this
petition has been filed on misconceived and
baseless grounds, which is liable to be
dismissed.

9. He has relied upon judgments
passed by the Hon'ble Supreme Court of
India in the cases of Radhey Shyam &
Another Vs. Chhabi Nath and Others;
2015 LawSuit(SC) 190 and State of
Rajasthan
Vs.
Fatehkaran
Mehdu;
(2017) 3 SCC 198.

10. Learned A.G.A. for the State also
vehemently opposed the submissions of
learned counsel for the petitioners and he
submitted that the impugned orders have
rightly been passed in accordance with law
and there is no illegality or infirmity in the
same, which may call for any interference
by this Court. The petition is misconceived
and lacks merit, therefore, it is liable to be
dismissed.

11. I have considered the submissions
of learned counsel for the parties and
perused the record.

12. The respondent No.2 moved an
application under Section 156(3) CrPC for
lodging of the F.I.R. against the petitioners
on 07.10.2015 and in pursuance of the
order passed by the learned Chief Judicial
Magistrate, Ambedkar Nagar, the F.I.R.
vide Case Crime No.258/2016, under
Sections 419, 420, 467, 468 and 471 I.P.C.
was lodged on 10.11.2016 at Police Station
Kotwali Tanda, District Ambedkar Nagar.
The F.I.R. has been lodged alleging therein
that the complainant; Kamla Devi W/o Late
Santram is resident of Village Ajmeri
Badshahpur, Police Station Kotwali Tanda,
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
367
District Ambedkar Nagar and also a
wedded wife of Santram. Santram and
Kamla Devi have a son, namely, Rohit and
a daughter, namely, Deepa. The husband of
the complainant, namely, Santram was
working on the post of Deputy Secretary in
Vigilance Commission and was posted at
Delhi. Bhagwan Devi W/o Premchand and
Sangeeta D/o Premchand by playing fraud,
making conspiracy and with intention to
usurp the properties of crores of husband of
the complainant, namely, Santram, got their
names recorded in Family Register on
11.12.2008 and also got a forged sale deed
prepared and executed fraudulently from
Late Santram on 01.11.2008 in the name of
Bhagwan Devi in Tehsil Tanda. Bhagwan
Devi and Sangeeta, who are the ladies and
conspirators by nature, have done similar
incident with Sanjay S/o Premchand, who
is son of Bhagwan Devi. The complainant;
Kamla Devi came to know about it when
they started making possession at their
house
situated
at
Village
Ajmeri
Badshahpur, Police Station Tanda Kotwali.
Then she ran to the Police Station Tanda
Kotwali and gave an application but, the
Incharge of the Police Station Tanda
Kotwali in collusion with the Bhagwan
Devi, had not taken any action, therefore,
she moved an application before the
Superintendent of Police, Ambedkar Nagar
but there also no action was taken,
therefore, she was constrained to move the
application under Section 156(3) CrPC.

13. The police, after investigation, in
pursuance to the aforesaid F.I.R., filed a final
report dated 06.02.2017 recording that on the
basis
of
statements
and
documentary
evidence, no offence is made out and from
the statements of witnesses, it has come to
light that husband of the complainant, Late
Santram had executed and got registered a
sale deed in favour of his second wife,
namely, Bhagwan Devi in his life time and in
peshbandi, a false case has been lodged
against the respondent.

14. The respondent No.2 moved a
protest petition alleging therein that the final
report has been filed without recording any
statement and considering the evidences
made
available
by
her.
The
learned
Magistrate allowed the protest petition by
means of order dated 10.02.2018 and rejected
the final report No.05/2017 and took
cognizance and held that the case shall go on
as a State Case and, accordingly, issued the
summons. The order dated 10.02.2018 was
challenged by the petitioners in Criminal
Revision No.37 of 2019, which was
dismissed
by
means
of
order
dated
02.11.2019 by the learned Sessions Judge,
Ambedkar Nagar upholding the order dated
10.02.2018 passed by the learned trial court.
Consequently, the petitioners approached this
Court by means of application under Section
482/378/407 No.154 of 2020 (Smt. Bhagwan
Devi and Another Vs. State of U.P. and
Another), but, after arguing at some length,
learned counsel for the petitioners got the
petition disposed of with liberty to move an
application
for
discharge
before
the
concerned court. In pursuance of the said
order, an application under Section 239 CrPC
was moved by the petitioners before the
learned Chief Judicial Magistrate, Ambedkar
Nagar on 18.01.2020, which was dismissed
by means of order dated 19.02.2020. The said
order was challenged by the petitioners in
Criminal Revision No.45 of 2020. The
criminal revision has also been dismissed by
means of an order dated 08.03.2021. Hence,
this petition has been filed challenging both
the orders.

15. An objection has been raised by
learned counsel for the respondent No.2
that this petition under Article 227 of the
368 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India is not maintainable. In
this regard, he has relied on the judgment
of the Hon'ble Supreme Court rendered in
the case of Radhey Shyam & Another Vs.
Chhabi Nath and Others (Supra). The
Hon'ble Supreme Court in the said
judgment upon reference by two Hon'ble
Judges has answered that the judicial orders
of civil court are not amenable to writ
jurisdiction under Article 226 of the
Constitution of India and jurisdiction under
Article 227 is distinct from jurisdiction
under Article 226 of the Constitution of
India. One of the point for reference was
that under Article 227 of the Constitution,
the High Court does not issue a writ of
certiorari. Article 227 of the Constitution
vests the High Courts with a power of
superintendence, which is to be very
sparingly exercised to keep tribunals and
courts within the bounds of their authority.
Under Article 227, orders of both civil and
criminal courts can be examined only in
very exceptional cases, when manifest
miscarriage of justice has been occasioned.
Such power, however, is not to be
exercised to correct a mistake of fact and of
law.

16. In view of above while referring
the matter, the Hon'ble Division Bench of
the Hon'ble Supreme Court had observed
that under Article 227 of the Constitution
of India, orders of both civil and criminal
courts can be examined only in very
exceptional
cases
when
manifest
miscarriage of justice has been occasioned.

17. The inherent powers under Section
482 CrPC can be exercised by this Court to
do right and to undo wrong in course of
administration of justice. The power of
superintendence under Article 227 of the
Constitution of India has been vested in the
High Court, which can be brought into play
at any time, if the High Court considers it
necessary to drop on the same and this
Court can interfere when an error of law is
apparent on the face of its record, which
has resulted in gross injustice. Thus, both
the powers can be exercised by this Court
in the interest of justice to undo the wrong
or illegality.

18. The Hon'ble Supreme Court, in the
case of Asian Resurfacing of Road
Agency P. Ltd. vs Central Bureau of
Investigation; (2018) 16 SCC 299, has
held that order framing charge may not be
held to be purely interlocutory order and
can in given situation be interfered under
Section 397(2) or 482 CrPC or Article 227
of the Constitution of India, which is a
constitutional provision.

19. By means of the impugned order
passed by the learned trial court, while
rejecting the application for discharge, it
decided to frame the charge and fixed the
case for framing the charge and the
revisional court dismissed the revision
upholding the same. Thus, in view of the
aforesaid reports of the Hon'ble Supreme
Court of India, the present petition under
Article 227 of the Constitution of India
cannot be said to be not maintainable only
because a remedy under Section 482 CrPC
is available, when under Article 227 of the
Constitution of India, this Court can
exercise powers in civil and criminal both
and in each provision, this Court is
exercising the inherent jurisdiction over the
district
courts
and
power
of
superintendence
over
the
courts
and
tribunals etc., respectively to correct the
wrong done by it. It is also to be noticed
that this petition was filed in the year 2021
and entertained and an interim order was
granted by this Court by means of order
dated 15.06.2021, therefore, merely on this
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
369
ground, this Court does not deem it
appropriate to dismiss the petition at this
stage after exchange of affidavits as both
the powers are to be exercised by this
Court.

20. The main argument of learned
counsel for the petitioners is that a civil
dispute has been converted into criminal.
However, every proceedings of criminal
case cannot be set aside on account of a
civil dispute between the parties as there is
no bar against the prosecution if the
offences punishable under criminal law are
made out against the party/parties to the
civil suit and also there is no bar of
continuance of both the proceedings
simultaneously. The Hon'ble Supreme
Court, in a recent judgment in the case of
Kathyayini v. Sidharth P.S. Reddy &
Others; (2025) SCC Online SC 1428, has
held that no such bar exists against the
prosecution if the offences punishable
under criminal law are made out against the
parties to the civil suit and pendency of
civil proceedings on the same subject
matter, involving the same parties is not a
justification
to
quash
the
criminal
proceedings, if a prima facie case exists
against the accused persons. The relevant
paragraphs 19 to 23 are extracted here-inbelow:-

"19. We now come to the issue of
bar
against
prosecution
during
the
pendency of a civil suit. We hereby hold
that no such bar exists against prosecution
if the offences punishable under criminal
law are made out against the parties to the
civil suit. Learned senior counsel Dr.
Menaka Guruswamy has rightly placed the
relevant judicial precedents to support the
above submission. In the case of K.
Jagadish v. Udaya Kumar G.S. and
another3, this Court has reviewed its
precedents which clarify the position. The
relevant
paragraph
from
the
above
judgment is extracted below:

"8. It is thus well settled that in
certain cases the very same set of facts may
give rise to remedies in civil as well as in
criminal proceedings and even if a civil
remedy is availed by a party, he is not
precluded from setting in motion the
proceedings in criminal law."

20. In Pratibha Rani v. Suraj
Kumar and another4, this Court summed
up the distinction between the two remedies
as under :

"21. ... There are a large number
of cases where criminal law and civil law
can run side by side. The two remedies are
not
mutually
exclusive
but
clearly
coextensive and essentially differ in their
content and consequence. The object of the
criminal law is to punish an offender who
commits an offence against a person,
property or the State for which the accused,
on proof of the offence, is deprived of his
liberty and in some cases even his life. This
does not, however, affect the civil remedies
at all for suing the wrongdoer in cases like
arson, accidents, etc. It is an anathema to
suppose that when a civil remedy is
available,
a
criminal
prosecution
is
completely barred. The two types of actions
are quite different in content, scope and
import. It is not at all intelligible to us to
take the stand that if the husband
dishonestly misappropriates the stridhan
property of his wife, though kept in his
custody, that would bar prosecution under
Section 406 IPC or render the ingredients
of Section 405 IPC nugatory or abortive.
To say that because the stridhan of a
married woman is kept in the custody of
her husband, no action against him can be
370 INDIAN LAW REPORTS ALLAHABAD SERIES
taken as no offence is committed is to
override and distort the real intent of the
law."

21. The aforesaid view was
reiterated in Kamaladevi Agarwal v. State
of W.B. and others5,

"17.
In
view
of
the
preponderance
of
authorities
to
the
contrary, we are satisfied that the High
Court was not justified in quashing the
proceedings initiated by the appellant
against the respondents. We are also not
impressed by the argument that as the civil
suit was pending in the High Court, the
Magistrate was not justified to proceed
with the criminal case either in law or on
the basis of propriety. Criminal cases have
to be proceeded with in accordance with
the procedure as prescribed under the
Code of Criminal Procedure and the
pendency of a civil action in a different
court even though higher in status and
authority, cannot be made a basis for
quashing of the proceedings."

22.
After
surveying
the
abovementioned cases, this Court in K.
Jagadish (supra) set aside the holding of
High
Court
to
quash
the
criminal
proceedings
and
held
that
criminal
proceedings shall continue to its logical
end.

23. The above precedents set by
this Court make it crystal clear that
pendency of civil proceedings on the same
subject matter, involving the same parties
is no justification to quash the criminal
proceedings if a prima facie case exists
against the accused persons. In present
case certainly such prima facie case exists
against the respondents. Considering the
long chain of events from creation of family
tree
excluding
the
daughters
of
K.G.Yellappa Reddy, partition deed among
only
the
sons
and
grandsons
of
K.G.Yellappa
Reddy,
distribution
of
compensation
award
among
the
respondents is sufficient to conclude that
there was active effort by respondents to
reap off the benefits from the land in
question. Further, the alleged threat to
appellant and her sisters on revelation of
the above chain of events further affirms
the motive of respondents. All the above
factors suggest that a criminal trial is
necessary
to
ensure
justice
to
the
appellant."

21. The Hon'ble Supreme Court, in the
case of Naresh Kumar & Another Vs.
The State of Karnataka and Another
(Supra), relied by learned counsel for the
petitioners, relying on a judgment rendered
in the case of Paramjeet Batra Vs. State
of Uttarakhand; (2013) 11 SCC 673, in
which it has been held that the complaint
disclosing civil transactions may also have
a criminal texture, but the High Court must
see whether a dispute, which is essentially
of a civil nature, is given a cloak of
criminal offence, found that the dispute
between the parties was not only essentially
of a civil nature but in the said case the
dispute itself was settled later by the
parties.

22. The Hon'ble Supreme Court, in the
case of Jit Vinayak Arolkar Vs. State of
Goa & Others (Supra), found that taking
the complaint as correct, the offence of
cheating under Section 415 of IPC was not
made out against the appellant. Moreover,
the complaint was filed by the 4th
respondent for the first time after a time
gap of two years from the date of
institution of the civil suits and the
complaint is suppressed with the fact that
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
371
civil suits were already filed, in which
applications for temporary injunction were
made. When there was a dispute over the
title, the act of the 4th respondent of setting
in motion criminal law two years after the
date of filing of the suits amounts to
nothing but abuse of the process of law.

23. In view of above, the criminal
proceedings in a case cannot be allowed to
be continued and liable to be quashed if the
dispute is essentially purely civil in nature
and no criminal offence is made out against
the accused and in case in an essentially
civil dispute, the civil proceedings have
been instituted and pending and if the same
are not disclosed, while instituting the
criminal proceedings, but it has to be seen
on the fact and circumstances of each and
every case and merely because there is a
civil dispute and the civil proceedings are
pending, the criminal prosecution cannot be
quashed.

24. The Hon'ble Supreme Court, in the
case of Vishnu Kumar Shukla and
Another Vs. The State of Uttar Pradesh
and Another (Supra), has held that the
protection against vexatious and unwanted
prosecution and from being unnecessarily
dragged through a trial by melting a
criminal proceeding into oblivion, either
through quashing an FIR/Complaint or by
allowing an appeal against an order
rejecting discharge or by any other legally
permissible route, as the circumstances
may be, in the deserving case, is a duty cast
on the High Courts.

25. Adverting to the facts of the
present case, the F.I.R. has been lodged on
10.11.2016 alleging therein that after death
of the husband of the respondent No.2,
when
the
petitioners
started
making
possession on her house then she came to
know about the inclusion of names of the
petitioners in the Family Register on
11.12.2008 and execution of the will on
01.11.2008 in favour of the petitioner No.1,
whereas the petitioner No.1 is wife of one
Premchand and the petitioner No.2 is
daughter of Premchand and petitioner No.1
had also played fraud with her son at Delhi.
A suit for cancellation of sale deed has also
been filed by the petitioners in the court of
Civil Judge (Junior Division), Ambedkar
Nagar on 23.09.2015.

26. So far as the plea of learned
counsel for the petitioners that while
lodging the F.I.R., the fact of filing of civil
suit for cancellation of sale deed has not
been disclosed is concerned, the respondent
No.2 has disclosed in counter affidavit that
when it came to the knowledge of
respondent No.2 that a fraud has been
committed against her by preparing forge
document in the name of her husband Late
Santram by petitioner No.1, she made a
complaint to the police authorities in this
regard and when she failed to get registered
her F.I.R. against the petitioners, then she
made the application under Section 156(3)
CrPC for lodging F.I.R. and consequently
the F.I.R. was registered against the
petitioners. It has been further stated that
she was also advised to file Regular Suit
No.461/2015 in the court of learned Civil
Judge (J.D.), Tanda, Ambedkar Nagar for
cancellation of alleged will deed, as the
deed is forged one. The F.I.R. also
discloses that the respondent No.2 firstly
approached to the police station for lodging
of the F.I.R. but the F.I.R. was not lodged,
therefore, she preferred an application
before
the
Superintendent
of Police,
Ambedkar Nagar but no action was taken,
therefore, she was constrained to approach
the court for lodging the F.I.R. on
07.10.2015. Thus, it is apparent that the
372 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent No.2 had taken action for
instituting
both
the
proceedings
simultaneously. However, since it took
some time in approaching the concerned
police station and Superintendent of Police,
Ambedkar Nagar, the application for F.I.R.
could be moved after filing of the suit for
cancellation of will deed. Thus, the reason
for delay in lodging the F.I.R. after filing of
the civil suit and it's non disclosure has
been explained. Even otherwise, the present
petition has been filed challenging the
order passed on application for discharge
moved by the petitioners and the revisional
order, by means of which, the order passed
on the application for discharge has been
upheld.

27.
The
petitioners
had
earlier
approached this Court by means of the
application under Section 482 CrPC
seeking quashing of entire proceedings
arising out of Case Crime No.0258 of 2016,
under Sections 419, 420, 467, 468 and 471
I.P.C. registered at Police Station Tanda,
District Ambedkar Nagar as well as the
order dated 10.02.2018 passed by learned
Civil Judge (J.D.)/Judicial Magistrate,
Ambedkar
Nagar,
the
order
dated
02.11.2019 passed by learned Sessions
Judge, Ambedkar Nagar as well as the
order dated 25.11.2019 passed by learned
Chief
Judicial
Magistrate,
Ambedkar
Nagar, issuing bailable warrant against the
petitioners, however, after arguing at some
length, learned counsel for the petitioners
themselves got the petition disposed of
with liberty to file an application before the
trial court concerned in conformity with the
provisions of CrPC, which was directed to
be considered and decided by the learned
trial court. Thus, the challenge to the same
orders as well as the entire criminal
proceedings on the aforesaid grounds was
not pressed and the application was got
disposed of by the petitioners with liberty
to file appropriate remedy under the
provisions of CrPC and, thereafter, the
petitioners moved an application for
discharge under Section 239 CrPC on
18.01.2020 and in this petition the order
passed thereon and the revision challenging
the order passed on the said application has
been challenged, therefore, in this petition,
this Court has to see as to whether any
illegality or error has been committed by
the trial court or the revisional court in
passing
the
impugned
orders
while
considering the application for discharge
and the revision filed by the petitioners and
failed to discharge the petitioners, despite
they are entitled to be discharged or not, for
which the yardsticks have been provided in
CrPC itself.

28. Section 239 CrPC provides as to
when an accused shall be discharged,
which is extracted here-in-below:-

"239. When accused shall be
discharged:-If, upon considering the police
report and the documents sent with it under
Section 173 and making such examination,
if any, of the accused as the Magistrate
thinks necessary and after giving the
prosecution and the accused an opportunity
of being heard, the Magistrate considers
the charge against the accused to be
groundless, he shall discharge the accused,
and record his reasons for so doing."

29. According to the aforesaid Section
239
CrPC,
if
the
magistrate
upon
considering the police report and the
documents sent with the same under
Section 173 CrPC and making such
examination, if any, of the accused as he
thinks
necessary
and
after
giving
opportunity
of
being
heard
to
the
prosecution as well as to the accused,
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
373
considers the charge against the accused to
be groundless, he shall discharge the
accused by passing a reasoned order. Thus,
it has to be considered as to whether, on the
basis of material placed before the
Magistrate by the prosecution, the charge
against the accused i.e. the petitioners in
the instant case is groundless and not on the
basis of any plea, material or evidence of
the accused, which can be considered only
during investigation or trial after evidence.

30. The Hon'ble Supreme Court, in the
case of State of Tamil Nadu Vs. R.
Soundirarasu and Others; (2023) 6 SCC
768, has held that Section 239 CrPC lays
down that if the Magistrate considers the
charge
against
the
accused
to
be
groundless, he shall discharge the accused
and the word 'groundless' used in Section
239 of the CrPC means that the materials
placed before the Court do not make out or
are not sufficient to make out a prima facie
case against the accused and it has further
been held that the exercise at this stage is to
be confined to considering the police report
and the documents to decide whether the
allegations against the accused can be said
to
be
"groundless".
The
relevant
paragraphs 62, 63, 64, 67, 68, 75, 76 and 77
are extracted here-in-below:-

"62. Section 239 of the CrPC
lays down that if the Magistrate considers
the charge against the accused to be
groundless,
he
shall
discharge
the
accused. The word 'groundless', in our
opinion, means that there must be no
ground for presuming that the accused
has committed the offence. The word
'groundless' used in Section 239 of the
CrPC means that the materials placed
before the Court do not make out or are
not sufficient to make out a prima facie
case against the accused.

63. The learned author Shri
Sarkar in his Criminal P.C., 5th Edition, on
page 427, has opined as:-

"The provision is the same as in
S. 227, the only difference being that the
Magistrate may examine the accused, if
necessary, of also S. 245. The Magistrate
shall discharge the accused recording
reasons, if after (i) considering the police
report and documents mentioned in S. 173;
(ii) examining the accused, if necessary and
(iii) hearing the arguments of both sides he
thinks the charge against him to be
groundless, i.e., either there is no legal
evidence or that the facts do not make out
any offence at all."

64. In short, it means that if no
prima facie case regarding the commission
of any offence is made out, it would amount
to a charge being groundless.

65.
..............................................................

66.
..............................................................

67. Thus the word 'groundless',
as interpreted by this Court, means that
there is no ground for presuming that the
accused has committed an offence.

68. This Court has again dealt
with
this
aspect
of
the
matter
in
Superintendent and
Remembrancer
of
Legal Affairs, West Bengal v. Anil Kumar
Bhunja, AIR 1980 SC 52. This Court has
stated in the said case as:-

"At this stage, even a very strong
suspicion found upon materials before the
Magistrate, which leads him to form a
presumptive opinion as to the existence of
374 INDIAN LAW REPORTS ALLAHABAD SERIES
the factual ingredients constituting the
offence alleged, may justify the framing of
charges against the accused in respect of
the commission of that offence."

69.
.........................................................

70.
.........................................................

71.
.........................................................

72.
.........................................................

73.
.........................................................

74.
.........................................................

75. The ambit and scope of
exercise of power under Sections 239 and
240 of the CrPC, are therefore fairly well
settled. The obligation to discharge the
accused under Section 239 arises when the
Magistrate considers the charge against
the accused to be "groundless". The Section
mandates
that
the
Magistrate
shall
discharge the accused recording reasons, if
after (i) considering the police report and
the documents sent with it under Section
173,
(ii)
examining
the
accused,
if
necessary, and (iii) giving the prosecution
and the accused an opportunity of being
heard, he considers the charge against the
accused to be groundless, i.e., either there
is no legal evidence or that the facts are
such that no offence is made out at all. No
detailed evaluation of the materials or
meticulous consideration of the possible
defences need be undertaken at this stage
nor any exercise of weighing materials in
golden scales is to be undertaken at this
stage - the only consideration at the stage
of Section 239/240 is as to whether the
allegation/charge is groundless.

76. This would not be the stage
for weighing the pros and cons of all the
implications of the materials, nor for sifting
the materials placed by the prosecution-
the exercise at this stage is to be confined
to considering the police report and the
documents
to
decide
whether
the
allegations against the accused can be said
to be "groundless".

77. The word "ground" according
to the Black's Law Dictionary connotes
foundation or basis, and in the context of
prosecution in a criminal case, it would be
held to mean the basis for charging the
accused or foundation for the admissibility
of evidence. Seen in the context, the word
"groundless" would connote no basis or
foundation in evidence. The test which may,
therefore, be applied for determining
whether the charge should be considered
groundless is that where the materials are
such that even if unrebutted, would make
out no case whatsoever.

31. The Hon'ble Supreme Court, in the
case of State of Karnataka Vs. M.R.
Hiremath; (2019) 7 SCC 515, has held
that it is a settled principle of law that at the
stage of considering an application for
discharge, the court must proceed on the
assumption that the material which has
been brought on the record by the
prosecution is true and evaluate the
material in order to determine whether the
facts emerging from the material, taken on
its face value, disclose the existence of the
ingredients necessary to constitute the
offence. The relevant paragraph 25 is
extracted here-in-below:-
8 All. Bhagwan Devi & Anr. Vs. State of U.P. & Anr.
375

"25. The High Court ought to
have been cognizant of the fact that the
trial court was dealing with an application
for discharge under the provisions of
Section 239 of the CrPC. The parameters
which
govern
the
exercise
of
this
jurisdiction have found expression in
several decisions of this Court. It is a
settled principle of law that at the stage of
considering an application for discharge
the court must proceed on the assumption
that the material which has been brought
on the record by the prosecution is true and
evaluate the material in order to determine
whether the facts emerging from the
material, taken on its face value, disclose
the existence of the ingredients necessary
to constitute the offence. In the State of
Tamil Nadu v N Suresh Rajan10, adverting
to the earlier decisions on the subject; this
Court held :

"29...At this stage, probative
value of the materials has to be gone into
and the court is not expected to go deep
into the matter and hold that the materials
would not warrant a conviction. In our
opinion, what needs to be considered is
whether there is a ground for presuming
that the offence has been committed and
not whether a ground for convicting the
accused has been made out. To put it
differently, if the court thinks that the
accused might have committed the offence
on the basis of the materials on record on
its probative value, it can frame the
charge; though for conviction, the court
has to come to the conclusion that the
accused has committed the offence. The law
does not permit a mini trial at this stage."

32. The allegations in the F.I.R. are
that the respondent No.2 is the wedded
wife of Late Santram and they had a son,
namely, Rohit and a daughter, namely,
Deepa. The petitioner No.1; Bhagwan
Devi, who is wife of Premchand and the
petitioner No.2; Sangeeta, who is daughter
of Premchand, to usurp the properties of
her husband, Late Santram, fraudulently
showing wife and daughter respectively of
Late Santram, got their names recorded in
the parivar register on 11.12.2008 and also
got a will deed executed in the name of
petitioner
No.1;
Bhagwan
Devi
on
01.11.2008. As per findings recorded by
the learned trial court, the petitioner No.1
has placed on record a copy of family
register, in which, Bhagwan Devi has been
shown as wife of Santram and Sangeeta as
daughter of Santram. In the said family
register, the respondent No.2; Smt.