# Bhawar Singh & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-10
- **Case number:** Application U/S 482 Cr. P.C. No. 20022 of 2017
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhawar-singh-ors-v-state-of-u-p-ors-45081
- **Pages:** 4

## Headnote

A. Code of Criminal Procedure - Section
482 - Abuse of Process of Court -FIR u/s
406 IPC was lodged by Secretary of the
Committee- Final report submitted-In
another
criminal
case
charge
sheet
against O.P. No.2 was filed and case is
under trial- Instead of the informant, O.P
No.2, who was neither Secretary nor
President nor authorized person to file
any proceeding in and on behalf of
Committee, filed Protest Petition-Treated
as a complaint- Neither the name of
complainant
was
changed
nor
complainant
was
examined
and
summoning order was passed, wherein it
was repeatedly written that complainant
was examined under Section 200 Cr.P.C-
Compromise
application
filed
before
Magistrate rejected - Challenged before
court of Sessions through criminal
revision but the aforesaid point was not
considered by learned Sessions Judge
amounting to misuse of process of lawComplainant always has the liberty to
withdraw
from
the
prosecution
but
Magistrate failed to appreciate facts and
law placed on record. (Para 5 & 6)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

## Text

1 All. Bhawar Singh & Ors. Vs. State of U.P. & Ors.
467
circumstances set forth in this petition
about his act and conduct. Secondly that
the issue of taking any administrative or
otherwise action by the High Court against
said judicial officer primarily appears to be
subject matter of Civil Misc. Writ Petition
No.42396 of 2002.

51. The office is directed to send the
copy of this order to the court of
Additional
Chief
Judicial
Magistrate,
Court No.9, Allahabad forthwith.

52. The instant application is decided
in aforesaid terms.
----------
(2020)1ILR 467

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr. P.C. No. 20022 of 2017

Bhawar Singh & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Sushil Kumar Shukla, Sri Abhitab
Kumar Tiwari

Counsel for the Opposite Parties:
A.G.A., Sri Santosh Mani Shukla, Sri
Satyendra Kumar Singh, Sri Vikash Singh

A. Code of Criminal Procedure - Section
482 - Abuse of Process of Court -FIR u/s
406 IPC was lodged by Secretary of the
Committee- Final report submitted-In
another
criminal
case
charge
sheet
against O.P. No.2 was filed and case is
under trial- Instead of the informant, O.P
No.2, who was neither Secretary nor
President nor authorized person to file
any proceeding in and on behalf of
Committee, filed Protest Petition-Treated
as a complaint- Neither the name of
complainant
was
changed
nor
complainant
was
examined
and
summoning order was passed, wherein it
was repeatedly written that complainant
was examined under Section 200 Cr.P.C-
Compromise
application
filed
before
Magistrate rejected - Challenged before
court of Sessions through criminal
revision but the aforesaid point was not
considered by learned Sessions Judge
amounting to misuse of process of lawComplainant always has the liberty to
withdraw
from
the
prosecution
but
Magistrate failed to appreciate facts and
law placed on record. (Para 5 & 6)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This application under Section 482
Cr.P.C. has been filed with a prayer for
quashing the entire proceeding including
impugned order dated 24.01.2017, passed
by learned court of Additional Session
Judge / Special Judge E.C. Act, Meerut in
Criminal Revision No. 190 of 2016
(Bhawar Singh and 8 others Versus State
of U.P. through Collector Meerut) and
impugned
summoning
order
dated
16.04.2016, passed by Judicial Magistrate,
Sardhana, District Meerut in Complaint
Case No. 84 of 2013 (Veer Singh Versus
Bhawar Singh and others), under Section
406 I.P.C., pending in the court of learned
Judaical Magistrate, Sardhana, District
Meerut.

2. Learned counsel for applicants
argued that first information report for
alleged criminal breach of trust was filed
by way of an application moved under
Section 156(3) Cr.P.C. by Veer Singh,
468 INDIAN LAW REPORTS ALLAHABAD SERIES
who was the then Secretary of Sadhu
Jagram Smarak Gaushala Samiti, situated
in village and post Kapsad, Police Station
Sardhana, District Meerut. Investigation
resulted submission of final report. After
that, Veer Singh informant has not filed
any protest petition, rather it was Brijpal,
who was neither Secretary nor President
nor
authorized
person
to
file
any
proceeding in and on behalf of above
Committee. This application was treated to
be a complaint case, but complainant
remained Veer Singh in the proceeding of
complaint,
whereas
statement
under
Section 200 Cr.P.C. was got recorded of
Brijpal. Brijpal himself was an accused for
the same criminal breach of trust,
punishable under Section 406 I.P.C. in a
report, wherein charge sheet was filed and
cognizance was taken. Since beginning, it
was being said that amount realized from
the auction of bullocks could not be
deposited in Bank because of the closure
hours of Bank, but it was given by
President to his younger brother Brijpal for
getting in safe till deposit in Bank, but the
amount was not deposited. In between,
President died. Hence, Brijpal was having
no locus to file any protest, because he
himself was accused for above misuse of
money of society, for which charge sheet
was filed, but on the basis of above protest
petition this summoning was passed.
Moreso,
Society
had
entered
in
compromise and this application was
moved before Magistrate that parties have
entered in compromise and complainant
does not want to proceed with above
proceeding, but this application was
rejected by Magistrate, mentioning therein
that the protest was filed by Brijpal and
summoning was on the protest of Brijpal,
hence, this compounding will not be
accepted, whereas Brijpal was neither
Secretary nor President nor was having
any authority for entering in compounding
and admittedly money was of above
Society and its office bearer had entered in
compromise for offence punishable under
Section
406
I.P.C.,
which
is
compoundable in the table under Section
321 Cr.P.C. Hence, on the basis of
compromise too, the proceeding ought to
be quashed. Moreso, the proceeding is in
the misuse of process of law and the
summoning was wrong. Hence, this
application with above prayer.

3. Learned A.G.A. has vehemently
opposed the application.

4. Learned counsel for opposite party
no. 3 Brijpal has vehemently opposed this
argument by saying that against him FIR
was lodged by Prempal Shastri, S/o
Kashmir, whereas this has been wrongly
said that it was filed by Prem Pal, S/o
Sohan Singh. This statement is against the
fact.
Moreso,
Brijpal
was
falsely
implicated in this proceeding for some
criminal breach of trust, wherein charge
sheet has been filed and he is facing trial.
Hence, he had filed protest petition against
final report and he was examined under
Section 200 Cr.P.C. Thereafter, this order
of summoning was there. Hence, Veer
Singh or any other member of Committee
is not competent to enter in compromise.
Rather, they all are in conspiracy to each
other.
Thereby,
this
application
be
dismissed.

5. Having heard learned counsel for
both sides and gone through material
placed on record, it is apparent that auction
of bullocks was performed by Committee,
wherein
Secretary
was
Veer
Singh,
Cashier was Bhawar Singh and President
was Sukhpal Singh. Part payment was
made and remaining was to be paid
1 All. Bhawar Singh & Ors. Vs. State of U.P. & Ors.
469
subsequently, but this part paid money,
which was said to be handed over to
younger brother of President i.e Brijpal
was not deposited in Bank account of
Society concerned. The other money was
also not deposited. Hence, case by way of
application under Section 156(3) Cr.P.C.
was got filed, wherein investigation
resulted submission of final report i.e. no
offence was made out, whereas in another
criminal case the accusation of usurpation
of
Rs.43,900/-
was
substantiated
in
investigation and charge sheet against
Brijpal was filed, wherein cognizance was
taken and case is being said to be under
trial. The final report was given notice to
informant, but Veer Singh who was
Secretary of Society did not file any
protest nor President of Society filed any
protest. It was same Brijpal, against whom
charge sheet was filed, filed protest
petition and it was treated to be a
complaint case, wherein Brijpal was
examined under Section 200 Cr.P.C. and
the summoning order for offence under
Section 406 I.P.C. was passed. This order
was challenged before court of Sessions
and it was made a point in memo of
revision that protest was not filed by
informant. Rather, it was filed by Brijpal,
who himself is accused of criminal breach
of trust, but Sessions Judge in its finding
has not disclosed this fact neither this was
considered nor pointed or concluded by
Sessions Judge on this point. Hence, the
point raised was not considered by learned
Sessions Judge and it was misuse of
process of law.

6. Brijpal, who is contesting this
proceeding, is himself an accused facing
trial and in this proceeding too it has been
specifically said that Brijpal usurped
Rs.43,900/-, which was received at the
time of auction and was given in his
possession by his brother, who is now no
more, and who was President at that
time. Hence, it is apparent that for
saving himself from above criminal trial,
this step was taken by Brijpal by filing
of this protest petition. Neither the name
of
complainant
was
changed
nor
complainant was examined and this
summoning order was passed, wherein
repeatedly this has been written that
complainant
was
examined
under
Section 200 Cr.P.C. The complainant
was Veer Singh, who had not been
examined under Section 200 Cr.P.C.
Moreso,
in
a
criminal
proceeding,
running on the basis of complaint,
complainant always remain with liberty
to withdraw from the prosecution and it
was moved before Magistrate that now
Society and its members had decided not
to proceed with this trial and this
proceeding be ended, but Magistrate
failed to appreciate facts and law placed
on record. Thereby, rejected above
request for withdrawal and ending of this
proceeding, whereas it was moved by
Secretary and President of Committee.
Hence, on overall appreciation of those
situations, it is very clear that both the
courts below failed to appreciate this fact
on record, thereby it was apparently
misuse of process of law. Hence, this
application merits to be allowed.

7. The application is allowed. The
entire proceedings of Complaint Case No.
84 of 2013 (Veer Singh Versus Bhawar
Singh and others) under Section 406
I.P.C., pending in the court of learned
Judaical Magistrate, Sardhana, District
Meerut including impugned order dated
24.01.2017 and impugned summoning
order
dated
16.04.2016
is
hereby
quashed.
----------
470 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 470

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/S 482 No. 23886 of 2019

Lal Bahadur Maurya & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Oposite Parties

Counsel for the Applicants:
Sri Rajesh Kumar Shukla, Sri P.N. Ojha

Counsel for the Opposite Parties:
A.G.A., Sunil Kumar Patel

A. First Information Report - Criminal
Procedure Code, 1973, Section 156 (3) -
the powers of a Judicial Magistrate under
Section
156(3)
of
Cr.P.C.
and
the
Administrative powers to maintain law
and order in order to ensure appropriate
administrative action against the wrong
doers are two qualitatively different
spheres of operation.

Even otherwise if the local police which is a law and
order implementing limb of local administration,
does not act properly with efficient alacrity and if
somebody feels aggrieved by such lackadaisical
attitude, it is frequently seen that a protest or a
complaint in that regard is made before the District
Magistrate or the Superintendent of Police. It is also
frequently seen that on such application, District
Magistrate directs the concerned local officials who
may be of police or may be of police or may be
officials of other department, that they should "do
the needful" or "take necessary actions in
accordance with law". Being in charge of the
administration, the District magistrate has to pass
orders almost on regular basis on a large scale every
day which relate to multiple departments of all kinds
including police. (Para 6)

B. Inherent Jurisdiction - Section 482 -
Cr.P.C. - Scope - the Trial Court and not
the High Court is expected to analytically
analyze the facts and factual matrix of
case.
Application u/s 482 rejected. (E-10)

List of cases cited: -

1. State of Haryana Vs. Bhajan lal 1992 SCC
(Cr.) 426

(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)

1. Supplementary affidavit has been
filed by the counsel for applicants, which
is taken on record.

2. This application u/s 482 Cr.P.C.
has been moved on behalf of applicants
seeking the quashing of Charge Sheet
dated 25.09.2018 and cognizanc order
dated 11.02.2019 as well as the entire
proceedings of Criminal Case No. 433 of
2019 (State Vs. Lal Bahadur), arising out
of Case Crime No. 60 of 2018, under
Section 457 I.P.C., Police Station Pawara,
District Jaunpur, pending in the court of
Additional Chief Judicial Magistrate 3rd
Jaunpur.

3. Heard Shri N.P. Ojha holding brief
of Shri Rajesh Kumar Shukla counsel for
the applicants, counsel for opposite party
No.2 and learned A.G.A. and also perused
the record.

4. Submission of learned counsel for
the applicants is that the F.I.R. of the case
could have been directed only by a
Judicial Magistrate while in the present
case the same has been registered on the
orders of S.D.M. or District Magistrate.
Therefore, according to the counsel, the
registration of F.I.R. will be an illegal act
and the consequent investigation and
submission of charge sheet will also