# Brijesh Kumar Tiwari @ Pankaj v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1889
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-27
- **Case number:** Application U/S 482. No. 41462 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-tiwari-pankaj-v-state-of-u-p-anr-50288
- **Pages:** 8

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - objection regarding
maintainability
of
application
under
section 482 Cr.P.C-against order rejecting
the discharge application made- applicant
asserted that entire proceedings of the
aforesaid
case
challenged-hence
application under section 482 Cr.P.C. is
maintainable-generally,
order
rejecting
discharge application shall be challenged
by filing a criminal revision-exceptional
cases-such orders may also be challenged
under
Section
482
Cr.P.C.-entire
proceedings challenged-hence, application
maintainable under Section 482 Cr.P.C.
(Para 10)

HELD:
From the perusal of the aforesaid judicial
precedents it is very much clear that an order
regarding rejection of the discharge application
would be generally challenged by filing a
criminal revision, but in some exceptional cases
such orders may also be challenged under
Section 482 Cr.P.C. So far as the quashment of
1890 INDIAN LAW REPORTS ALLAHABAD SERIES
entire proceedings is concerned, it can be
challenged under Section 482 Cr.P.C in this case
the entire proceedings has been challenged
which cannot be looked into in a criminal
revision. As per F.I.R, the case is based on
circumstantial evidence and the applicant has
been made accused and the charge-sheet had
been submitted against him. The discharge
application has been rejected and the charge
has to be framed. The applicant has taken
several grounds that his name has come into
picture during the course of investigation only
on the basis of confessional statement of the
accused Mohd. Farooq. The dead body / Skelton
was recovered after three month of the incident.
It is also mismatched to the deceased Gopal. It
could not be ascertained as to whether the
Skelton belonged to a male of female. Neither
any direct evidence nor last seen evidence nor
PM report is available. Mobile number, basis of
the case is not in the name of the applicant
which can only be decided during the trial and
its validity might be seen under Section 482
Cr.P.C to some extent.

Since the applicant has also challenged the
legality of entire proceeding, of the concerned
Criminal
Case,
hence
this
application
is
maintainable under Section 482 Cr.P.C. (Para 10)

Application held to be maintainable. (E-14)

List of Cases cited:

## Text

5 All. Brijesh Kumar Tiwari @ Pankaj Vs. State of U.P. & Anr.
1889
time, the opp. party no. 2 had to face two
final reports and then to file two protest
petitions. His second protest petition was
registered as complaint on 23.6.2014. He
had also to adduce the evidence under
sections 200 and 202 Cr.P.C. in the
complaint and finally the court took
cognizance vide order dated 11.3.2016.
This shows that the opp. party no. 2 was
continuously busy in the proceedings of the
said case. There was no laxity on his part.
In the opinion of the court, the opp. party
no. 2 is entitled for benefit of extension of
period of limitation on the basis of section
473 Cr.P.C.

12. Learned counsel for the applicant
drawing the attention of the court toward
the judgment in Prem Lata and another VS.
State of Rajsthan and another claimed the
benefit of his argument on the basis of
section 468 of Cr.P.C. that the complaint
was registered and the cognizance was
taken on complaint after more than 5 years
of the alleged committal of the crime but if
we go through this judgment, it is found
that as per the facts of this case there was a
delay of 12 years between filing the
complaint and taking cognizance and this
delay was attributed to the complainant
who did not produce any witness in support
of his protest petition but in the case in
hand, the position is different. Here delay is
caused for the reason not attributing to the
opp. party no. 2 / the complainant himself,
but it was due to this long procedure which
was
followed
due
to
the
peculiar
circumstances of the case, hence, learned
counsel for the applicant cannot get benefit
of this judgment filed by him.

13. No ground exists for quashing of
the orders dated 11.3.2016, 24.12.2018 and
30.9.2019 as prayed by the learned counsel
for the applicant above.

14. The application u/s 482 Cr.P.C.
being devoid of merits is liable to be
dismissed and is accordingly dismissed.
----------
(2023) 5 ILRA 1889
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 41462 of 2022

Brijesh Kumar Tiwari @ Pankaj
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Dr. C.P. Upadhyay

Counsel for the Opposite Parties:
G.A., Sri Deepak Dubey

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - objection regarding
maintainability
of
application
under
section 482 Cr.P.C-against order rejecting
the discharge application made- applicant
asserted that entire proceedings of the
aforesaid
case
challenged-hence
application under section 482 Cr.P.C. is
maintainable-generally,
order
rejecting
discharge application shall be challenged
by filing a criminal revision-exceptional
cases-such orders may also be challenged
under
Section
482
Cr.P.C.-entire
proceedings challenged-hence, application
maintainable under Section 482 Cr.P.C.
(Para 10)

HELD:
From the perusal of the aforesaid judicial
precedents it is very much clear that an order
regarding rejection of the discharge application
would be generally challenged by filing a
criminal revision, but in some exceptional cases
such orders may also be challenged under
Section 482 Cr.P.C. So far as the quashment of
1890 INDIAN LAW REPORTS ALLAHABAD SERIES
entire proceedings is concerned, it can be
challenged under Section 482 Cr.P.C in this case
the entire proceedings has been challenged
which cannot be looked into in a criminal
revision. As per F.I.R, the case is based on
circumstantial evidence and the applicant has
been made accused and the charge-sheet had
been submitted against him. The discharge
application has been rejected and the charge
has to be framed. The applicant has taken
several grounds that his name has come into
picture during the course of investigation only
on the basis of confessional statement of the
accused Mohd. Farooq. The dead body / Skelton
was recovered after three month of the incident.
It is also mismatched to the deceased Gopal. It
could not be ascertained as to whether the
Skelton belonged to a male of female. Neither
any direct evidence nor last seen evidence nor
PM report is available. Mobile number, basis of
the case is not in the name of the applicant
which can only be decided during the trial and
its validity might be seen under Section 482
Cr.P.C to some extent.

Since the applicant has also challenged the
legality of entire proceeding, of the concerned
Criminal
Case,
hence
this
application
is
maintainable under Section 482 Cr.P.C. (Para 10)

Application held to be maintainable. (E-14)

List of Cases cited:

1. Amit Kapoor Vs Ramesh Chander & ors.
Manu/SC/0746/2012

2. Girish Kumar Suneja Vs C.B.I. 2017 Law Suit
(SC) 685

3. Vijay & ors. Vs St.of Mah. & ors.,
Manu/SC/1633/2016

4.
Shila
Devi
Vs
St.of
U.P.
&
ors.
Manu/UP/0649/2022

5. Haryana Land Reclamation & Development
Corporation Ltd.Vs St.of Haryana & anr.1990
SCC (Cri.) 515

6. Sanjay Kumar Rai Vs St.of U.P., & anr.2021 0
Supreme (SC) 242
7. Asian Resurfacing of Road Agency Pvt. Ltd. Vs
C.B.I, (2018) 16 SCC 299

8. Madhu Limaye Vs St.of Mah., (1977) 4 SCC
551

9. Honnaiah T. H. Vs St.of Kar.& ors. 2022 Law
Suite (SC) 950

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Dr. C.P. Upadhyay, learned
counsel for the applicant, Sri Pankaj Kumar
Tripathi, learned A.G.A. for the State and
perused the material available on record.

2. At the time of hearing of argument
an objection regarding maintainability of
this petition, has been raised by the learned
A.G.A
that
since
the
order
dated
25.11.2022, by which 19-B Discharge
application has been rejected, has been
challenged which is a final order, hence a
revision can be preferred against such order
and a petition under Section 482 Cr.P.C. is
not maintainable. Contrary to that learned
counsel for the appellant argued that since
the entire proceeding of the aforesaid case
has also been challenged, hence this
petition under 482 Cr.P.C is maintainable.
In support of the argument learned counsel
for the applicant has relied on following
citations.

3. In Amit Kapoor Vs. Ramesh
Chander and others Manu/SC/0746/2012,
para 19 and 20, following principles have
been laid down:-

"19. Having discussed the scope
of jurisdiction under these two provisions,
i.e., Section 397 and Section 482 of the
Code and the fine line of jurisdictional
distinction, now it will be appropriate for
us to enlist the principles with reference to
5 All. Brijesh Kumar Tiwari @ Pankaj Vs. State of U.P. & Anr.
1891
which the courts should exercise such
jurisdiction. However, it is not only
difficult but is inherently impossible to
state with precision such principles. At
best and upon objective analysis of
various judgments of this Court, we are
able to cull out some of the principles to
be considered for proper exercise of
jurisdiction, particularly, with regard to
quashing of charge either in exercise of
jurisdiction under Section 397 or Section
482 of the Code or together, as the case
may be :

1) Though there are no limits of
the powers of the Court under Section 482
of the Code but the more the power, the
more due care and caution is to be
exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest
of rare cases.

2) The Court should apply the
test as to whether the uncontroverted
allegations as made from the record of the
case
and
the
documents
submitted
therewith prima facie establish the offence
or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a
conclusion
and
where
the
basic
ingredients of a criminal offence are not
satisfied then the Court may interfere.

3) The High Court should not
unduly
interfere.
No
meticulous
examination of the evidence is needed for
considering whether the case would end in
conviction or not at the stage of framing
of charge or quashing of charge.

4) Where the exercise of such
power is absolutely essential to prevent
patent miscarriage of justice and for
correcting some grave error that might be
committed by the subordinate courts even
in such cases, the High Court should be
loathe to interfere, at the threshold, to
throttle the prosecution in exercise of its
inherent powers.

5) Where there is an express
legal bar enacted in any of the provisions
of the Code or any specific law in force to
the very initiation or institution and
continuance of such criminal proceedings,
such a bar is intended to provide specific
protection to an accused.

6) The Court has a duty to
balance the freedom of a person and the
right of the complainant or prosecution to
investigate and prosecute the offender.

7) The process of the Court
cannot be permitted to be used for an
oblique or ultimate/ulterior purpose.

8) Where the allegations made
and as they appeared from the record and
documents
annexed
therewith
to
predominantly give rise and constitute a
''civil wrong' with no ''element of
criminality' and does not satisfy the basic
ingredients of a criminal offence, the
Court may be justified in quashing the
charge. Even in such cases, the Court
would not embark upon the critical
analysis of the evidence.

9)
Another
very
significant
caution that the courts have to observe is
that it cannot examine the facts, evidence
and materials on record to determine
whether there is sufficient material on the
basis of which the case would end in a
conviction,
the
Court
is
concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.

10) It is neither necessary nor is
the court called upon to hold a full-
fledged enquiry or to appreciate evidence
collected by the investigating agencies to
1892 INDIAN LAW REPORTS ALLAHABAD SERIES
find out whether it is a case of acquittal or
conviction.

11) Where allegations give rise
to a civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.

12) In exercise of its jurisdiction
under Section 228 and/or under Section
482,
the
Court
cannot
take
into
consideration external materials given by
an accused for reaching the conclusion
that no offence was disclosed or that there
was possibility of his acquittal. The Court
has to consider the record and documents
annexed with by the prosecution.

13) Quashing of a charge is an
exception to the rule of continuous
prosecution. Where the offence is even
broadly satisfied, the Court should be
more inclined to permit continuation of
prosecution rather than its quashing at
that initial stage. The Court is not
expected to marshal the records with a
view to decide admissibility and reliability
of the documents or records but is an
opinion formed prima facie.

14) Where the charge-sheet,
report under Section 173(2) of the Code,
suffers from fundamental legal defects,
the Court may be well within its
jurisdiction to frame a charge.

15) Coupled with any or all of
the above, where the Court finds that it
would amount to abuse of process of the
Code or that interest of justice favours,
otherwise it may quash the charge. The
power is to be exercised ex debito justitiae,
i.e. to do real and substantial justice for
administration of which alone, the courts
exist.

{Ref. State of West Bengal &
Ors. v. Swapan Kumar Guha & Ors. [AIR
1982 SC 949]; Madhavrao Jiwaji Rao
Scindia
&
Anr.
v.
Sambhajirao
Chandrojirao Angre & Ors. [AIR 1988 SC
709]; Janata Dal v. H.S. Chowdhary &
Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol
Bajaj & Anr. v. Kanwar Pal Singh Gill &
Ors. [AIR 1996 SC 309; G. Sagar Suri &
Anr. v. State of U.P. & Ors. [AIR 2000 SC
754]; Ajay Mitra v. State of M.P. [AIR
2003 SC 1069]; M/s. Pepsi Foods Ltd. &
Anr. v. Special Judicial Magistrate & Ors.
[AIR 1988 SC 128]; State of U.P. v. O.P.
Sharma [(1996) 7 SCC 705]; Ganesh
Narayan Hegde v. s. Bangarappa & Ors.
[(1995)
4
SCC
41];
Zundu
Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque & Ors. [AIR 2005 SC 9];
M/s. Medchl Chemicals & Pharma (P)
Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR
2000 SC 1869]; Shakson Belthissor v.
State of Kerala & Anr. [(2009) 14 SCC
466]; V.V.S. Rama Sharma & Ors. v. State
of U.P. & Ors. [(2009) 7 SCC 234];
Chunduru Siva Ram Krishna & Anr. v.
Peddi Ravindra Babu & Anr. [(2009) 11
SCC 203]; Sheo Nandan Paswan v. State
of Bihar & Ors. [AIR 1987 SC 877]; State
of Bihar & Anr. v. P.P. Sharma & Anr.
[AIR 1991 SC 1260]; Lalmuni Devi (Smt.)
v. State of Bihar & Ors. [(2001) 2 SCC
17]; M. Krishnan v. Vijay Singh & Anr.
[(2001) 8 SCC 645]; Savita v. State of
Rajasthan [(2005) 12 SCC 338]; and S.M.
Datta v. State of Gujarat & Anr. [(2001) 7
SCC 659]}.

20. These are the principles
which
individually
and
preferably
cumulatively (one or more) be taken into
consideration as precepts to exercise of
extraordinary and wide plenitude and
jurisdiction under Section 482 of the Code
by the High Court. Where the factual
foundation for an offence has been laid
down, the courts should be reluctant and
should
not
hasten
to
quash
the
proceedings even on the premise that one
or two ingredients have not been stated or
5 All. Brijesh Kumar Tiwari @ Pankaj Vs. State of U.P. & Anr.
1893
do not appear to be satisfied if there is
substantial
compliance
to
the
requirements of the offence. At this stage,
we may also notice that the principle
stated by this Court in the case of
Madhavrao Jiwaji Rao Scindia (supra)
was reconsidered and explained in two
subsequent judgments of this Court in the
cases of State of Bihar & Anr. v. Shri P.P.
Sharma & Anr. [AIR 1991 SC 1260] and
M.N. Damani v. S.K. Sinha & Ors. [AIR
2001 SC 2037]. In the subsequent
judgment, the Court held that, that
judgment did not declare a law of
universal application and what was the
principle relating to disputes involving
cases of a predominantly civil nature with
or without criminal intent. "

4. In Girish Kumar Suneja Vs. C.B.I.
2017 Law Suit (SC) 685, paras 28 & 29 to
34, 38,

28. However, this does not mean
that the appellants have no remedy
available to them - paragraph 10 of the
order does not prohibit the appellants
from approaching this Court under Article
136 of the Constitution. Therefore all that
has happened is that the forum for
ventilating the grievance of the appellants
has shifted from the High Court to this
Court. It was submitted by one of the
learned counsel that this is not good
enough for the appellants since this Court
is not obliged to give reasons while
dismissing such a petition unlike the High
Court which would necessarily have to
give reasons if it rejected a revision
petition. In our opinion, the mere fact that
this Court could dismiss the petition filed
by the appellants under Article 136 of the
Constitution without giving reasons does
not necessarily lead to the conclusion that
reasons will not be given or that some
equitable order will not be passed. The
submission of learned counsel has no
basis and is only a presumption of what
this Court might do. We cannot accept a
submission that has its foundation on a
hypothesis.

29. This leads us to another facet
of the submission made by learned
counsel
that
even
the
avenue
of
proceeding under Section 482 of the
Cr.P.C. is barred as far as the appellants
are concerned. As held in Amar Nath and
with which conclusion we agree, if an
interlocutory order is not revisable due to
the prohibition contained in Section
397(2) of the Cr.P.C. that cannot Crl.
Appeal Nos.______/2017 etc. (@ SLP
(Crl.)
Nos.
9503/2016
etc.)
be
circumvented by resort to Section 482 of
the Cr.P.C. There can hardly be any
serious dispute on this proposition"

34. How ridiculous a challenge
can become was illustrated in Centre for
Public Interest Litigation v. Union of
India 14 wherein this Court cautioned
against challenging the appointment of
the Special Public Prosecutor or his
assistant advocates! Quite obviously, these
are tactics employed by the accused to
delay the trial while the endeavour of
Parliament is to expedite all trials to
prevent harassment to the accused. This
has led to odd situations in 14 (2012) 3
SCC 117 Crl. Appeal Nos.______/2017
etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)

38. The Cr.P.C. is undoubtedly a
complete code in itself. As has already
been discussed by us, the discretionary
jurisdiction under Section 397(2) of the
Cr.P.C. is to be exercised only in respect
of final orders and intermediate orders.
The power under Section 482 of the
Cr.P.C. is to be exercised only in respect
of interlocutory orders to give effect to an
order passed under the Cr.P.C. or to
1894 INDIAN LAW REPORTS ALLAHABAD SERIES
prevent abuse of the process of any Court
or otherwise to serve the ends of justice.
As indicated above, this power has to be
exercised only in the rarest of rare cases
and not otherwise. If that is the position,
and we are of the view that it is so, resort
to Articles 226 and 227 of the Constitution
Crl. Appeal Nos.______/2017 etc. (@ SLP
(Crl.) Nos. 9503/2016 etc.) would be
permissible perhaps only in the most
extraordinary
case.
To
invoke
the
constitutional jurisdiction of the High
Court when the Cr.P.C. restricts it in the
interest of a fair and expeditious trial for
the benefit of the accused person, we find
it difficult to accept the proposition that
since Articles 226 and 227 of the
Constitution are available to an accused
person,
these
provisions
should
be
resorted to in cases that are not the rarest
of rare but for trifling issues.

5. In Vijay & others Vs. State of
Maharashtra
and
others,
Manu/SC/1633/2016, it was a case under
Sections 420, 468, 506, 367 and 392 I.P.C
of which para 7 and 8 are relevant, which
are as under : -

7. After hearing the counsel and
also after perusing the impugned order,
we are of the considered opinion that the
order of the High Court has no legs to
stand in view of the law laid down by this
Court in Prabhu Chawla [Prabhu Chawla
v. State of Rajasthan, (2016) 16 SCC 30] .
In the above referred case, in view of the
divergent opinions of this Court in
Dhariwal
Tobacco
Products
Ltd.
[Dhariwal Tobacco Products Ltd. v. State
of Maharashtra, (2009) 2 SCC 370 :
(2009) 1 SCC (Cri) 806] and Mohit v.
State of U.P. [Mohit v. State of U.P.,
(2013) 7 SCC 789 : (2013) 3 SCC (Cri)
727] , the matter was placed before the
three-Judge Bench of this Court. The
three-Judge Bench took the view that
Section 482 CrPC begins with a non
obstante clause to state:

"482. Saving of inherent powers
of High Court.--Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice."

As Section 397 CrPC is attracted
against all orders other than interlocutory,
a contrary view would limit the availability
of inherent powers under Section 482
CrPC only to petty interlocutory orders! A
situation which is wholly unwarranted
and undesirable. The three-Judge Bench
has confirmed the law laid down by this
Court in Dhariwal Tobacco Products Ltd.
[Dhariwal Tobacco Products Ltd. v. State
of Maharashtra, (2009) 2 SCC 370 :
(2009) 1 SCC (Cri) 806]

8. In view of the above settled
law, mere availability of alternative
remedy cannot be a ground to disentitle
the relief under Section 482 CrPC and,
apart from this, we feel that the learned
Judge without appreciating any of the
factual and legal position, in a mechanical
way, passed the impugned order, which
warrants interference by this Court.
Accordingly, the order of the High Court
is set aside and the matter is remanded to
the High Court for reconsideration in the
light of the settled legal position.

6. Shila Devi Vs. State of U.P. and
others Manu/UP/0649/2022, in para 11 of
the judgment, the co-ordinate bench of this
court has held that a petition under section
482 Cr.P.C is maintainable against the
revisional order of the Sessions Court.
5 All. Brijesh Kumar Tiwari @ Pankaj Vs. State of U.P. & Anr.
1895

7. Contrary to the above citations the
learned counsel for the respondent has
relied on Haryana Land Reclamation and
Development Corporation limited vs. State
of Haryana and another 1990 SCC (Cri.)
515, in which it has been held that
Magistate's order of discharge of accused
on the basis of Police Report is not an
interlocutory order. Hence it can be
challenged by revision before the High
Court.

Learned A.G.A. has relied on
following citations.

8. In Sanjay Kumar Rai Vs. State of
U.P, and another 2021 0 Supreme (SC)
242, in this case the criminal revision had
been dismissed by the high court on the
ground of lack of jurisdiction under Section
397 Cr.P.C, the Hon'ble the Apex Court
held that orders framing charges or refusing
discharge are neither interlocutory nor final
in nature and are not affected by bar of
Section 397 (2) Cr.P.C. High Court is
imbued
with
inherent
jurisdiction
to
prevent abuse of process or to secure ends
of justice having regard to the facts and
circumstances of individual cases. It was
also
opined
that
trial
court
while
considering the discharge application is not
to act as a mare post office. Court has to
sift through evidence in order to find out
whether there are sufficient grounds to try
the suspect or not. The court has to
consider broad probabilities, total effect of
evidence and documents produced and
basic infirmities appearing in case and so
on. The Apex Court held that the High
Court has committed jurisdictional error by
not entertaining revision on merit and
overlooking the fact that "Discharge" is a
valuable right provided to the accused. In
para 12 and 13 of the judgment, the Apex
Court has referred the judgments Asian
Resurfacing of Road Agency Pvt. Ltd. Vs.
C.B.I, (2018) 16 SCC 299 and Madhu
Limaye Vs. State of Maharashtra, (1977)
4 SCC 551, in which Hon'ble the Apex
Court has held that order regarding framing
charges can be challenged under Section
397 (2),Section 482 Cr.P.C or Article 227
of the Constitution of India in exceptional
situation.

9. In Honnaiah T. H. Vs. State of
Karnatka & Ors. 2022 Law Suite (SC)
950, in this case the Revisional power of
the High Court has been discussed. In this
case the question had arisen during the trial
regarding the mark of exhibit, hence this
ruling is not applicable on account of
deference of situation.

10. From the perusal of the aforesaid
judicial precedents it is very much clear
that an order regarding rejection of the
discharge application would be generally
challenged by filing a criminal revision, but
in some exceptional cases such orders may
also be challenged under Section 482
Cr.P.C. So far as the quashment of entire
proceedings is concerned, it can be
challenged under Section 482 Cr.P.C in this
case the entire proceedings has been
challenged which cannot be looked into in
a criminal revision. As per F.I.R, the case is
based on circumstantial evidence and the
applicant has been made accused and the
charge-sheet had been submitted against
him. The discharge application has been
rejected and the charge has to be framed.
The applicant has taken several grounds
that his name has come into picture during
the course of investigation only on the basis
of confessional statement of the accused
Mohd. Farooq. The dead body / Skelton
was recovered after three month of the
incident. It is also mismatched to the
deceased Gopal. It could not be ascertained
as to whether the Skelton belonged to a
1896 INDIAN LAW REPORTS ALLAHABAD SERIES
male of female. Neither any direct evidence
nor last seen evidence nor PM report is
available. Mobile number, basis of the case
is not in the name of the applicant which
can only be decided during the trial and its
validity might be seen under Section 482
Cr.P.C to some extent.

Since the applicant has also
challenged
the
legality
of
entire
proceeding, of the concerned Criminal
Case, hence this application is maintainable
under Section 482 Cr.P.C.

O R D E R

a) This application under 482
Cr.P.C is held to be maintainable. It is
made clear that this Court has not touched
the merit of this case.

b) List on 08th May, 2023, for
hearing on merit, before the appropriate
Bench.

c) The interim stay order passed
on 17.02.2023, shall continue till the next
date of listing.
----------
(2023) 5 ILRA 1896
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application u/s 482 No. 11742 of 2018

Prashant Tyagi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Sanjay Singh, Sri Amrendra Nath Rai

Counsel for the Opp. Parties:
G.A., Sri Abhinav Gaurav, Sri Anoop Trivedi, Sri
Vibha Rai
Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Entire proceedings
under section 138 Negotiable Instruments
Act under challenge- Allegation- Opposite
parties
issued
cheque
in
favour
of
complainant-
cheque
dishonouredapplicants
had
resigned
from
the
directorship on the date the cheque was
issued- for promotion of justice or to
prevent injustice or abuse of process-
Court may look into the materials which
have significant bearing on the matter at
prima facie stage- applicant no.1 had
resigned from the Company much prior to
the issuance of the cheque in question-
cheque did not bear the signatures of any
of the applicants- On the date of issuance
of the cheque the applicants were mere
the shareholders of the Company- no
active participation of the applicants in
the day to day business and transactions
of the Company-complaint also silent
about the role of the applicants- travesty
of justice to drag the persons to face the
prosecution- no way connected with the
issuance of the cheque or its being
dishonour
thereof-summoning
order
quashed-Application allowed.

HELD:
Thus on the basis of the discussion and the
judgments placed above, it is found that
applicant no.1 had resigned from the Company
much prior to the issuance of the cheque in
question. Admittedly, the cheque did not bear
the signatures of any of the applicants. On the
date of issuance of the cheque the applicants
were mere the shareholders of the Company.
There was no active participation of the
applicants in the day to day business and
transactions of the Company and in the
complaint itself, it is not mentioned that as to
how and in what manner the applicants were incharge or were responsible to the accused
Company for the conduct of its business. Thus,
in the opinion of the Court, as on the face of the
record, participation of the applicants is not
found in the day to day functioning of the
Company, hence, on the basis of the version
that the defence would be seen at the time of
evidence, it would be travesty of justice to drag
the persons to face the prosecution who are no