# Chandra Bhan @ Lalla & Ors v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-21
- **Case number:** Application U/s 482 No. 12982 of 2009
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhan-lalla-ors-v-state-of-u-p-anr-52425
- **Pages:** 11

## Headnote

Criminal Law- The Code of Criminal
Procedure-1973-Sections
-204,
210
&
482- FIR lodged earlier and Criminal
Complaint
lodged
after
seven
years
thereof are based on same set of facts,
allegations, offence and accused persons-
That filing of instant complaint case and
issuance of summoning order thereon by
learned Magistrate amounts to abuse of
process of law, as this is tantamount to
reopening of a case based on same
allegations
which
has
already
been
concluded on the basis of police report by
orders of the Court, around seven years
before-Result-
impugned
summoning
order
dated
as
well
as
the
entire
proceedings in said complaint case are
hereby quashed. Petition allowed. (Para
12,13 & 27) (E-15)

List of Cases cited:

## Text

8 All. Chandra Bhan @ Lalla & Ors. Vs. State of U.P. & Anr.
639
(2024) 8 ILRA 639
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.08.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Application U/s 482 No. 12982 of 2009

Chandra Bhan @ Lalla & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Pradeep Chandra, Sunita Chauhan

Counsel for the Respondent:
G.A.

Criminal Law- The Code of Criminal
Procedure-1973-Sections
-204,
210
&
482- FIR lodged earlier and Criminal
Complaint
lodged
after
seven
years
thereof are based on same set of facts,
allegations, offence and accused persons-
That filing of instant complaint case and
issuance of summoning order thereon by
learned Magistrate amounts to abuse of
process of law, as this is tantamount to
reopening of a case based on same
allegations
which
has
already
been
concluded on the basis of police report by
orders of the Court, around seven years
before-Result-
impugned
summoning
order
dated
as
well
as
the
entire
proceedings in said complaint case are
hereby quashed. Petition allowed. (Para
12,13 & 27) (E-15)

List of Cases cited:

1. Zunaid Vs St.of U.P. & ors.in Criminal Appeal
Nos. 2628-2629 of 2023

2. A.M. Mohan Vs The St.represented by SHO &
anr.reported in 2024 SCC Online SC 339

3. [G. Sagar Suri v. St.of U.P., (2000) 2 SCC
636]
4. Naresh Kumar & anr. Vs The St.of Karnataka
& anr.2024 SCC Online SC 268 arising out of
SLP (Crl.) No.1570 of 2021

5. Apex Court in Randheer Singh Vs St. of U.P.
(2021) 14 SCC 626

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. As per office report dated
20.08.2024, notice has reportedly been
served on opposite party no.2 personally.

2. Heard Sri Akshay Raj Singh,
Advocate holding brief of Sri Pradeep
Chandra, learned counsel for the applicants,
learned A.G.A. for the State and perused
the record.

3. In the instant application filed
under Section 482 Cr.P.C., the applicants
have prayed to quash the summoning order
dated 20.04.2009 passed by Judicial
Magistrate, Jalaun in Complaint Case
No.70 of 2009, under Sections 307, 504,
506 IPC and Sections 3 (1) (x) of SC/ST
Act P.S. Ait, District Jalaun and also to
quash the entire proceedings in Complaint
Case No.70 of 2009 with regard to said
matter.

4. Learned counsel for the
applicants submits that opposite party no.2
Lala Ram filed a complaint case with
averments that he belongs to scheduled
caste category and he was working as a
labourer in the field of Munni Babu, who is
a co-villager. He was subjected to forced
labour, day in and day out. In the
intervening night of 17/18.04.2000 at 3:30
hours when opposite party no.2 was taking
rest in Khalihan of Munni Babu, he asked
him to come and do work whereupon he
requested him for being permitted to have
rest, then the accused, Munni Babu abused
640 INDIAN LAW REPORTS ALLAHABAD SERIES
him by caste specific words, thereafter
accused, Chandra Bhan alias Lalla, on
being exhorted by Munni Babu took
licensee gun of Munni Babu and fired at
complainant which hit him on thigh and he
became injured. Accused, Amar Singh and
Kallu were also present there. They
subsequently assaulted the complainant by
butt of Rifle. The case was reported by his
brother at police station but the report was
not lodged in proper manner and charge
sheet was filed wrongly under Section 338
IPC
and
that
too
against
accused
Chandrabhan @ Lalla only in which
accused got himself saved by confessing
the offence of Section 338 IPC after paying
Rs.1,000/- as fine. The applicant stated that
he was suffering from fire arm injuries
received on his thigh and unable to walk.

4. He next submitted that on the
similar
facts
F.I.R.
was
lodged
on
14.04.2000 at the instance of one Raghubir,
brother of the injured Lala Ram and same
was registered vide Crime No. 40 of 2000,
under Sections 307, 504, 506 IPC and
Section 3(1) (X) of SC/ST Act. However,
the case under Section 307 IPC was not
found to be made out during investigation
and charge sheet was filed under Section
338 IPC against petitioner No.1 only. The
said criminal case was decided on the basis
of confession against one of the applicants
viz Chandrabhan @ Lalla recorded by
learned court below for charge under
Section 338 IPC. The present complaint
case has been filed only to make pressure
on the accused persons after conclusion of
police case instituted on same set of facts.
He lastly submitted that the prosecution in
the complaint case is abuse of process of
law and deserves to be quashed.

6. Per contra, learned A.G.A.
opposed the prayer made in present
application under Section 482 Cr.P.C. and
submitted that the filing of complaint case
after conclusion of police case instituted on
same facts, has been duly explained by the
complainant/injured in the complaint itself.
The impugned summary order is legally
and factually sound and just. It needs no
interference in present proceedings.

7. From perusal of material on
record, it appears that an FIR was lodged
initially in the case at the instance of
Raghubir son of Zalim Chamar against the
accused Lalla @ Chandrabhan Niranjan,
Amar Singh, Munni Babu and Kallu. The
accused belonged to same family. The FIR
was drawn on the basis of written report
filed by the informant vide Crime No.40 of
2000 under Sections 307/504/506 IPC and
Section 3(2)(V) of SC/ST (P.A.) Act, at
Police Station Ait, District Jalaun at Orai in
which an acquisition was made to the effect
that on 17.04.2000 at around 3:30 am
accused persons abused and intentionally
insulted Lalaram, the real brother of the
informant when he was taking rest in the
agricultural field of accused persons
accused Munni Babu and Chandrabhan
Niranjan and when he tried to plead his
stand that he was badly tired due to
thrashing work and requested the accused
persons to refrain from abusing, Munni
Babu got enraged and exhorted Lalla @
Chandrabhan Niranjan to kill him. On
being exhorted by Munni Babu, Lalla @
Chandrabhan Niranjan fired a shot at
Lalaram by a licensed gun of Munni Babu
which hit Lalaram and he fell down on
earth. The accused persons also abused
Lalaram with caste specific words. The
incident was witnessed by Krishna Murari
Chamar, Kailash and Ravi Shankar who
came there on hearing sound of firing. The
informant also reached there alongwith the
said witnesses and Lalaram was rushed to
8 All. Chandra Bhan @ Lalla & Ors. Vs. State of U.P. & Anr.
641
Jhansi for treatment, thereafter he was
referred to Gwalior where he had been
admitted.

8. The informant lodged FIR on
19.04.2000 at 22:45 hours after returning
from Gwalior. The police investigated the
same and recorded statements of the
informant
and
witnesses.
During
investigation the FIR version was not found
reliable and the Investigating Officer
concluded that the injured Lalaram was
working at the place of accused Munni
Babu for last six months. The injured
Lalaram stated that when he sat down on
being tired of work, on order of Munni
Babu, Lala @ Chandrabhan Niranjan fired
a shot at him and when he got injured,
Munni Babu got him driven by tractor to a
doctor at Ait where he was given first aid;
he was taken to Jhansi where he was
treated for few days, and thereafter he was
rushed Gwalior where he was treated for
four days. Accused Munni Babu bore the
expenses of his treatment. Some witnesses
stated to Investigating Officer that in fact
two persons Lalaram and one Pratap
Bahadur Singh from the side of the accused
got injured as firearm kept by Chandrabhan
@ Lala went off accidently. At the time of
incident,
harvesting
was
closed
and
Lalaram,
Pratap
Bahadur
Singh
and
Chandrabhan were sleeping, suddenly the
country
made
pistol
possessed
by
Chandrabhan @ Lalla went off accidently
which hit Lalaram on his thigh, and Pratap
Bahadur Singh on his hand. The injuries of
Lalaram and Pratap Bahadur Singh were
not on vital part.

9. The Investigating Officer placed
reliance on statements of independent
witnesses Pappu Basor, Shiv Ram, Ravi
Shankar
and
Kailash
Chamar
and
concluded that none of the penal sections
mentioned in FIR attracted against the
accused persons, and complicity of only
Chandrabhan @ Lala was found for charge
under Section 338 IPC and accordingly
chargesheet under Section 338 IPC was
filed against Chandrabhan @ Lalla before
the court on 20.04.2000. The accused
Chandrabhan
@
Lalla
moved
an
application on 16.02.2001, expressing his
desire to confess the guilt for said charge,
which was allowed and statements of
accused was recorded by learned Special
Judicial Magistrate-II and on the basis of
confession he was convicted of charge
under Section 338 IPC and sentenced to
Rs.1,000/- fine and 20 days' imprisonment
in default, by order dated 16.02.2001 the
criminal case arising out of said FIR
Crime No.40/2000 P.S. Ait, District Jalaun
concluded.
The
informant
Raghubir
assailed said order dated 16.02.2001
before court of session by filing a
Criminal Revision before the Court of
session
and
said
Criminal
Revision
No.1998 of 2001 was dismissed by
Special Judge EC Act, Jalaun at Orai vide
order dated 22.11.2001 with observation
that no interference is warranted in the
impugned
order
passed
by
learned
Magistrate while deciding the case on the
basis of confession of accused. There is a
separate procedure for enhancement of
sentence. Any other order in the ends of
justice can only be passed under Article
482 Cr.P.C. by Hon'ble High Court and
the revision was dismissed with these
observations.

10. Consequently the order dated
16.02.2001 passed by learned Magistrate
was affirmed by court of session in
Criminal Revision. The revisional order has
now attained finality, as the informant
perused no further remedy in the matter
before any higher court.
642 INDIAN LAW REPORTS ALLAHABAD SERIES
11. About seven years of passing
the above stated revisional order the
injured/complainant
Lalaram
filed
a
Criminal Complaint before the Court of
C.J.M. Jalaun, at Orai on 10.10.2007
against the same accused persons with
regard to same incident. The allegations in
the FIR lodged at the instance of Raghubir,
the brother of the complainant and
Criminal Complaint has been filed by the
injured Lalaram based on same statement
of facts and accusation. In nutshell, it can
be said that the FIR lodged earlier and
Criminal Complaint lodged after seven
years thereof are based on same set of facts,
allegations, offence and accused persons.
The learned Magistrate recorded statement
of complainant Lalaram under Section 200
Cr.P.C. and witnesses Smt. Savitri, wife of
Lalaram and Ravi Shankar, the brother of
Lalaram under Section 202 Cr.P.C., learned
Magistrate vide order dated 20.04.2009
considered the allegations made in the
complaint and statement of complainant
and the two witnesses recorded in inquiry
under Sections 200 and 202 Cr.P.C.
summoned all the four accused persons
after finding a prima facie case made out
against them, to face trial for charge under
Section 307, 504, 506 IPC and Section
3(X) SC/ST (P.A.)Act.

12. Feeling aggrieved by the
impugned summoning order the accused
persons have filed present petition under
Section 482 Cr.P.C. If we look into the
statutory provisions with regard to lodging
of FIR and filing of complaint in respect of
same offence the procedure is found under
Section 210 of the Code of Criminal
Procedure which may be reproduced as
under:-

"210. Procedure to be
when there is a complaint case
and police investigation in respect
of the same offence.
(1)When in instituted a
case otherwise than on a police
report (hereinafter referred to as a
complaint case), it is made to
appear to the Magistrate, during
the course of the inquiry or trial
held by him, that an investigation
by the police is in progress in
relation to the offence which is the
subject-matter of the inquiry or
trial held by him, the Magistrate
shall stay the proceedings of such
enquiry or trial and call for a
report on the matter from the police
officer
conducting
the
investigation.
(2)If a report is made by
the investigating police officer
under section 173 and on such
report cognizance of any offence is
taken by the Magistrate against any
person who is an accused in the
complaint case, the Magistrate
shall inquire into or try together
the complaint case and the case
arising out of the police report as if
both the cases were instituted on a
police report.
(3)If the police report does
not relate to any accused in the
complaint case or if the Magistrate
does not take cognizance of any
offence on the police report, he
shall proceed with the inquiry or
trial, which was stayed by him, in
accordance with the provisions of
this Code."

13. On perusal of aforementioned
provision it is apparent that subs-section (1)
applies where a complaint case is instituted
during progress of police investigation in a
case and sub-section (3) provides for
8 All. Chandra Bhan @ Lalla & Ors. Vs. State of U.P. & Anr.
643
proceeding the case as a complaint case
where police report does not relate to an
accused in the complaint case, or if the
Magistrate does not take cognizance of any
offence on the police report. In such a
situation, the Magistrate consolidates both
the cases together and proceed in the matter
by observing procedure prescribed for
complainant cases. In Session triable case,
there is no distinction between a case
instituted or a police report or on
complaint, so far as trial is concerned and
procedure prescribed for trial before the
Court of session is applicable for both type
of cases after committal of the case by a
Magistrate concerned to court of Session
for trial.

14. The present case was instituted
on the basis of complaint of injured
although for altogether different offences in
distinction to offence found in chargesheet
filed after investigation into said FIR and
concluded by order dated 16.02.2001
passed by learned Magistrate on the basis
of conviction of chargesheeted accused
Chandrabhan @ Lalla for charge under
Section 338 IPC and when complaint was
filed no police case was pending. The
present complaint which has been assailed
by the accused persons in present petition
under Section 482 Cr.P.C. was filed after
six years and eight months of conclusion of
earlier
police
case
based
on
same
accusations.

15. On conclusion of police case
by by order of Magistrate on the basis of
conviction, sole accused and no plausible
explanation has been found in complaint or
in statement of the complainant and
witnesses for such an inordinate delay. The
complainant has stated in complaint itself
that he was not aware of proceedings of the
court of Magistrate regarding filing of
chargesheet under Section 338 IPC.after
investigation of case instituted on the basis
of investigation carried out in FIR lodged at
the instance of his brother Raghubir. He has
stated that he came to know about order of
learned Magistrate-II regarding closure of
case on the basis of conviction under
Section 338 IPC. On 06.08.2007 when he
filed an application before the Court of
Magistrate concerned seeking progress of
the case; which is inconceivable as the
informant Rabhubir filed a Criminal
Revision before the court of session against
the order dated 16.02.2001 passed by
learned Magistrate without any delay,
which was decided by the Court concerned
by
order
dated
22.11.2001
and
no
interference was made in the impugned
order passed by learned Magistrate in said
police case.

16. After a lapse of period of six
years on dismissal of Criminal Revision
preferred by the informant who is none
other than the real brother of the
complainant the present complaint has been
filed.

17. This Court is not oblivious of
settled proposition of law that even after
acceptance of closure report filed by
Investigating Officer, after investigation of
the case, the informant /aggrieved person
can file a criminal complaint before the
competent Magistrate.

18. The Hon'ble Supreme Court in
a recent case Zunaid Vs. State of U.P. and
others in Criminal Appeal Nos. 2628-2629
of 2023 observed as under:-

.......11. In view of the
above, there remains no shadow of
doubt that on the receipt of the
police report under Section 173
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., the Magistrate can exercise
three options. Firstly, he may
decide that there is no sufficient
ground for proceeding further and
drop action. Secondly, he may take
cognizance of the offence under
Section 190(1)(b) on the basis of
the police report and issue process;
and thirdly, he may take cognizance
of
the
offence
under
Section
190(1)(a) on the basis of the
original complaint and proceed to
examine upon oath the complainant
and his witnesses under Section
200. It may be noted that even in a
case where the final report of the
police
under
Section
173
is
accepted and the accused persons
are discharged, the Magistrate has
the power to take cognizance of the
offence on a complaint or a Protest
Petition on the same or similar
allegations
even
after
the
acceptance of the final report. As
held by this Court in Gopal Vijay
Verma Vs. Bhuneshwar Prasad
Sinha and Others, as followed in
B. Chandrika Vs. Santhosh and
Another, a Magistrate is not
debarred from taking cognizance of
a complaint merely on the ground
that earlier he had declined to take
cognizance of the police report. No
doubt
a
Magistrate
while
exercising his judicial discretion
has to apply his mind to the
contents of the Protest Petition or
the complaint as the case may be.

19. However, the facts of present
case are distinguishable from the facts of the
case in which Hon'ble Supreme Court made
above observations, as in the present case the
police had not submitted closure report after
investigation of the case lodged at the
instance of the informant Raghubir and filed
chargesheet against one of the named accused
persons for charge under Section 338 IPC,
which is a minor offence and complicity of
other accused persons was not found in the
offence. The complaint itself has been filed
after lapse of a period of seven years of the
conclusion of the case on the basis of police
report and subsequent dismissal of revision
preferred by the informant against final order
passed by learned Magistrate. The revisional
order has not been challenged before any
superior court by the informant/defacto
complainant. In as much as, fact of filing of
Criminal Revision by the informant in police
case and dismissal of the Revision by court
concerned has been concealed in complaint
case
instituted
by
the
complainant/
respondent No.2.

20. In these facts and circumstances,
I am of the considered opinion that the
complaint was not maintainable after lapse of
six years of decision in Criminal Revision
preferred against the order of Magistrate
dated 16.02.2001.

21. The petitioner/applicants have
invoked indulgence of this Court in exercise
of powers under Section 482 Cr.P.C. vested in
this Court. The scope of exercise of powers
under Section 482 Cr.P.C. by the High Court
has been discussed and circumscribed by
Hon'ble Apex Court in a number of judicial
precedents.

22. The law in regard to inherent
powers under Section 482 Cr.P.C. is
discussed hereinafter :-

"Inherent Power of the
High Court under Section 482
Criminal Procedure Code 1973 :-
(I) "Inherent Power" of the
High Court under Section 482
8 All. Chandra Bhan @ Lalla & Ors. Vs. State of U.P. & Anr.
645
Cr.P.C., an extraordinary power is
with
purpose
and
object
of
advancement of justice, which is to
be exercised "to give effect to any
order under the Cr.P.C.", or "to
prevent abuse of process of any
Court", or "to secure ends of
justice", making arena of the power
very wide, yet it is to be exercised
sparingly, with great care and with
circumspection, that too in the
rarest of rare case.
(II) It is no more res
integra that exercise of inherent
power could be invoked to even
quash a criminal proceeding/First
Information
Report/complaint
/chargesheet,
but
only
when
allegation made therein does not
constitute
ingredients
of
the
offence/offences
and
/or
are
frivolous and vexatious on their
face, without looking into defence
evidence, however such power
should not be exercised to stifle or
cause
sudden
death
of
any
legitimate
prosecution.
Inherent
power does not empower the High
Court to assume role of a trial
court and to embark upon an
enquiry as to reliability of evidence
and sustainability of accusation,
specifically in a case where the
entire facts are incomplete and
hazy.
Similarly
quashing
of
criminal proceedings by assessing
the statements under section 161
Cr.P.C. at initial stage is nothing
but scuttling a full fledged trial.

(III) There can not be any
straight
jacket
formula
for
regulating the inherent power of
this Court, however the Supreme
Court
has
summarised
and
illustrated
some
categories
in
which
this
power
could
be
exercised in catena of judgments.
Some of them are State of Haryana
Vs Bhajan Lal : 1992 Supp (1)
SCC 335, Zandu Pharmaceutical
Works Ltd Vs Mohd Sharaful
Haque: (2005) 1 SCC 122, Ahmed
Ali Quarashi and Anr Versus The
State of Uttar Pradesh : 2020 SCC
Online SC 107, Joseph Salvaraja
A v. State of Gujarat (2011) 7 SCC
59, Sushil Sethi and another Vs
The State of Arunachal Pradesh
and others (2020) 3 SCC, 240,
Priti Saraf and Anr Vs State of
NCT of Delhi and Anr : 2021 SCC
Online SC 206. Some categories/
circumstances as illustrations but
not exhaustive are : allegations
made in FIR / complaint, if are
taken at their face value and
accepted
do
not
prima
facie
constitute any offence or are so
absurd and inherently improbable
to make out any case or no
cognizable offence is disclosed
against
the
accused,
criminal
proceedings
is
maliciously
instituted with an ulterior motive
and with a view to spite the
accused
due
to
private
and
personal grudge, or where there is
a specific legal bar engrafted in
any of the provisions of the Code or
in the concerned Act to the
institution and continuance of the
proceedings
or
when
dispute
between the parties constitute only
a civil wrong and not a criminal
wrong, further Courts would not
permit a person to be harassed
although
no
case
for
taking
cognizance of the offence has been
made out.
646 INDIAN LAW REPORTS ALLAHABAD SERIES
(IV) In Sau. Kamal Shivaji
Pokarnekar
v.
The
State
of
Maharashtra : (2019) 14 SCC 350,
the Apex Court has laid emphasis
on the principles laid down in two
of its previous judgements namely,
State
of
Karnataka
v.
M.
Devendrappa : 2015 (3) SCC 424
and Indian Oil Corporation v.
NEPC India Ltd. & Ors.: (2006)6
SCC 736 and held that quashing of
criminal proceedings is called for
only when the complaint does not
disclose
any
offence,
or
the
complaint is frivolous, vexatious, or
oppressive and further clarified
that defences available during a
trial
and
facts/aspects
whose
establishment during the trial may
lead to acquittal cannot form the
basis of quashing a criminal
complaint. The criminal complaints
cannot be quashed only on the
ground that the allegations made
therein appear to be of a civil
nature, if the ingredients of the
alleged offence are prima facie
made out in the complaint.
(V) The Supreme Court in
M/s Neeharika Infrastructure Pvt.
Ltd Versus State of Maharashtra
and Others : (2020) 10 SCC 118,
has categorically held that High
Court is not justified in passing the
order of not to arrest and or no
coercive steps either during the
investigation or till the final report/
charge sheet is filed under Section
173
Cr.P.C.,
while
dismissing/disposing petition under
Section 482Cr.P.C. and/or under
Article 226 of the Constitution and
even in exceptional cases where
High Court is of the opinion that a
prima facie case is made out for
stay of further investigation,such
order has to be with brief reasons,
though such orders should not be
passed routinely, casually and/or
mechanically.
(VI)
Whether
the
allegations are true or untrue,
would have to be decided in the
trial. In exercise of power under
Section 482 of the Cr.P.C., the
Court
does
not
examine
the
correctness of the allegations in a
complaint except in exceptionally
rare cases where it is patently clear
that the allegations are frivolous or
do not disclose any offence. (see
Ramveer Upadhyay & Anr. versus
State of U.P. & Anr. 2022 SCC
Online SC 484)
(VII) "A careful reading of
the complaint, the gist of which we
have extracted above would show
that none of the ingredients of any
of the offences complained against
the appellants are made out. Even
if all the averments contained in the
complaint are taken to be true, they
do not make out any of the offences
alleged against the appellants.
Therefore, we do not know how an
FIR was registered and a chargesheet was also filed.....It is too late
in the day to seek support from any
precedents, for the proposition that
if no offence is made out by a
careful reading of the complaint,
the complaint deserves to be
quashed." (See, Wyeth Limited &
others vs, State of Bihar &
another, Criminal Appeal No.1224
of 2022 (Special Leave Petition
(Crl.) No.10730 OF 2018), decided
on 11th August, 2022)."

(emphasis supplied)
8 All. Chandra Bhan @ Lalla & Ors. Vs. State of U.P. & Anr.
647
23. Hon'ble Supreme Court in a
recent judgment A.M. Mohan Vs. The
State represented by SHO and another
reported in 2024 SCC Online SC 339
(three Judge Bench) considered the scope
of Section 482 Cr.P.C. while deciding the
appeal challenging the order passed by
learned Single Judge of the High Court of
Madras on an application under Section
482 Cr.P.C. the Hon'ble Court observed as
under:-
........9.
The
law
with
regard to exercise of jurisdiction
under Section 482 of Cr.P.C. to
quash complaints and criminal
proceedings has been succinctly
summarized by this Court in the
case of Indian Oil Corporation v.
NEPC India 10 Limited and
Others after considering the earlier
precedents. It will be apposite to
refer to the following observations
of this Court in the said case, which
read thus:
"12.
The
principles
relating to exercise of jurisdiction
under Section 482 of the Code of
Criminal
Procedure
to
quash
complaints
and
criminal
proceedings have been stated and
reiterated by this Court in several
decisions. To mention a fewMadhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre
[(1988) 1 SCC 692 : 1988 SCC
(Cri) 234] , State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , Rupan
Deol Bajaj v. Kanwar Pal Singh
Gill [(1995) 6 SCC 194 : 1995 SCC
(Cri) 1059] , Central Bureau of
Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591 :
1996 SCC (Cri) 1045] , State of
Bihar
v.
Rajendra
Agrawalla
[(1996) 8 SCC 164 : 1996 SCC
(Cri) 628] , Rajesh Bajaj v. State
NCT of Delhi [(1999) 3 SCC 259 :
1999 SCC (Cri) 401] , Medchl
Chemicals & Pharma (P) Ltd. v.
Biological E. Ltd. [(2000) 3 SCC
269 : 2000 SCC (Cri) 615] ,
Hridaya Ranjan Prasad Verma v.
State of Bihar [(2000) 4 SCC 168 :
2000 SCC (Cri) 786] , M. Krishnan
v. Vijay Singh [(2001) 8 SCC 645 :
2002 SCC (Cri) 19] and Zandu
Pharmaceutical
Works
Ltd.
v.
Mohd. Sharaful Haque [(2005) 1
SCC 122 : 2005 SCC (Cri) 283] .
The principles, relevant to our
purpose are:
(i) A complaint can be
quashed where the allegations
made in the complaint, even if they
are taken at their face value and
accepted in their entirety, do not
prima facie constitute any offence
or make out the case alleged
against the accused.
For
this
purpose,
the
complaint has to be examined as a
whole, but without examining the
merits of the allegations. Neither a
detailed inquiry nor a meticulous
analysis of the material nor an
assessment of the reliability or
genuineness of the allegations in
the complaint, is warranted while
examining prayer for quashing of a
complaint.
(ii) A complaint may also
be quashed where it is a clear
abuse of the process of the court, as
when the criminal proceeding is
found to have been initiated with
mala fides/malice for wreaking
vengeance or to cause harm, or
where the allegations are absurd
and inherently improbable.
648 INDIAN LAW REPORTS ALLAHABAD SERIES
(iii) The power to quash
shall not, however, be used to stifle
or scuttle a legitimate prosecution.
The
power
should
be
used
sparingly
and
with
abundant
caution.
(iv) The complaint is not
required to verbatim reproduce the
legal ingredients of the offence
alleged. If the necessary factual
foundation is laid in the complaint,
merely on the ground that a few
ingredients have not been stated in
detail, the proceedings should not
be quashed. Quashing of the
complaint is warranted only where
the complaint is so bereft of even
the basic facts which are absolutely
necessary for making out the
offence.
(v) A given set of facts may
make out: (a) purely a civil wrong;
or (b) purely a criminal offence; or
(c) a civil wrong as also a criminal
offence. A commercial transaction
or a contractual dispute, apart
from furnishing a cause of action
for seeking remedy in civil law, may
also involve a criminal offence. As
the nature and scope of a civil
proceeding are different from a
criminal proceeding, the mere fact
that the complaint relates to a
commercial transaction or breach
of contract, for which a civil
remedy is available or has been
availed, is not by itself a ground to
quash the criminal proceedings.
The test is whether the allegations
in the complaint disclose a criminal
offence or not.

24. Hon'ble Apex Court further
observed that there is nothing in the words
of section 482 Cr.P.C. which restricts the
exercise of the power of the Court to
prevent the abuse of process of court or
miscarriage of justice only to the stage of
the FIR. It is settled principle of law that
the High Court can exercise jurisdiction
under Section 482 CrPC even when the
discharge application is pending with the
trial court [G. Sagar Suri v. State of U.P.,
(2000) 2 SCC 636].

25. Hon'ble Supreme Court in a
recent judgment Naresh Kumar and
another Vs. The State of Karnataka and
another reported in 2024 SCC Online SC
268 arising out of SLP (Crl.) No.1570 of
2021 observed as under:-

......6.
In
the
case
of
Paramjeet
Batra
v.
State
of
Uttarakhand (2013) 11 SCC 673,
Hon'ble Supreme Court recognized
that although the inherent powers
of a High Court under Section 482
of the Code of Criminal Procedure
should be exercised sparingly, yet
the High Court must not hesitate in
quashing
such
criminal
proceedings which are essentially
of a civil nature. This is what was
held:
"12. While exercising its
jurisdiction under Section 482 of
the Code the High Court has to be
cautious. This power is to be used
sparingly and only for the purpose
of preventing abuse of the process
of any court or otherwise to secure
ends
of
justice.
Whether
a
complaint discloses a criminal
offence or not depends upon the
nature of facts alleged therein.
Whether essential ingredients of
criminal offence are present or not
has to be judged by the High Court.
A
complaint
disclosing
civil
8 All. Dinesh Kumar Vs. State of U.P. & Anr.
649
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.
In such a situation, if a civil remedy
is available and is, in fact, adopted
as has happened in this case, the
High Court should not hesitate to
quash the criminal proceedings to
prevent abuse of process of the
court." (emphasis supplied)

26. Relying upon the decision in
Paramjeet Batra (supra), Apex Court in
Randheer Singh v. State of U.P. (2021) 14
SCC
626,
observed
that
criminal
proceedings cannot be taken recourse to as
a
weapon
of
harassment.
In
Usha
Chakraborty & Anr. v. State of West Bengal
& Anr. 2023 SCC OnLine SC 90, relying
upon Paramjeet Batra (supra) it was again
held that where a dispute which is
essentially of a civil nature, is given a cloak
of a criminal offence, then such disputes
can be quashed, by exercising 8 the
inherent powers under Section 482 of the
Code of Criminal Procedure."

27. Considering the submissions of
learned counsel for the applicants and
learned A.G.A. on behalf of State and
keeping in the light facts and circumstances
of the present case and above stated
judgments of Hon'ble Apex Court; on the
basis of foregoing discussion, I am of the
considered opinion that filing of instant
complaint case and issuance of summoning
order
thereon
by
learned
Magistrate
amounts to abuse of process of law, as this
is tantamount to reopening of a case based
on same allegations which has already been
concluded on the basis of police report by
orders of the Court, around seven years
before. The petition under Section 482
Cr.P.C. stands allowed and impugned
summoning order dated 20.04.2009 as well
as the entire proceedings in said complaint
case are hereby quashed.
----------
(2024) 8 ILRA 649
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/s 482 No. 20471 of 2024

Dinesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Man Mohan Singh

Counsel for the Respondent:
G.A.

Criminal Law-The Negotiable Instruments
Act, 1881-Sections 138 & 142(1)(b)- to
constitute the offence under Section 138
of N.I. Act, the cheque must be presented
for encashment within its validity period
and after the receipt of intimation with
regard to dishonor of the cheque, the
holder of the cheque is required to issue
demand notice within a period of 30 days
from the date of intimation of dishonor of
the cheque and after the legal demand
notice is issued and served on the drawer
of the cheque, the holder of the cheque is
required to wait for a period of 15 days.
When after expiry of 15 days, the demand
notice is not complied with by the drawer
of the cheque only then the cause of
action of filing the complaint under
Section
138
N.I.
Act
would
arise.
Thereafter, the complainant has a further
period of one month in terms of Section
142(1)(b) for filing the complaint. (Para
7) (E-15)

List of Cases cited: