# Cornel Vivek School v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 543
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-15
- **Case number:** Application U/S 482 Cr.P.C. No. 12062 of 2020
- **Bench:** Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cornel-vivek-school-v-state-of-u-p-anr-46157
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323 - punishment for
voluntry causing hurt , Sections 504 -
Intentional insult with intent to provide
breach of the peace , Sections 506 -
punishment for criminal intimidation ,
Sections 354 - Assault or criminal force to
woman
with
intent
to
outrage
her
modesty - Judicial process, no doubt,
should not be an instrument of oppression
or needless harassment - Court should be
circumspect and judicious in exercising
discretion - should take all relevant facts
and
circumstances
into
consideration
before issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly.(Para - 9)

Application filed for quashing summoning
order passed by Additional Chief Judicial
Magistrate and the proceedings of Complaint
Case under Sections 323, 504, 506, 354 I.P.C. -
on 13.9.2018 at about 01:00 P.M. in afternoon
the opposite party no.2 had gone to Wheler
Club - accused-applicant met him in inebriated
condition where scuffle took place between the
applicant
and
complainant
-
whereafter
complainant went to his home - however, the
accused chases him upto his home - started
abusing and threatened to kill him - wife of the
complainant tried to save the applicant -
applicant misbehaved with his wife also and
tried to outrage the modesty - statements of
complainant (Opp Party No.2) recorded under
Section 200 Cr.P.C. - supported the version of
the complainant - statement of wife of opposite
party
no.2
recorded
under
Section
202
Cr.P.C.(Para - 3,4,5)

HELD:- The factual scenario set forth herein
above clearly shows that the proceedings were
initiated as a counter blast to the proceedings
initiated by the applicant, hence the same are
liable to be quashed. The proceedings of
Complaint Case under Sections 323, 504, 506,
354 I.P.C., pending in the Court of learned
Additional Chief Judicial Magistrate, as well as
the summoning order passed by learned
Additional Chief Judicial Magistrate, are hereby
quashed. (Para -11,12)

Application u/s 482 Cr.P.C. allowed. (E-6)

List of Cases cited:-

St.of Har.Vs Bhajan Lal ,1992 Supp (1) SCC 335

## Text

2 All. Cornel Vivek School Vs. State of U.P. & Anr.
543
a dedicated and loving father and on
happening of such a scene, he cannot raise
finger against anyone and curse on destiny.
In Vedas it is truly said as under:

यर्था ह्योकेन चक्रेण न िर्थस्य गलतभथवेत्।

एवं परुषकािेण लवना दैवं न लसद्धलत।।

Meaning

िर्थ कभी एक पलहये पि नहीं चि
सकता है उसी प्रकाि पुरुषार्थथ लवहीन व्यक्तक्त का
भाग्य लसद्ध नहीं होता।

It is further said in sanskrit shlokas
that a person might be learned, wealthy and
mighty but if he is not following his religion,
which is basically to maintain and nurture the
moral of his family high, he is the weakest and
most poor person in the society.

बिवानप्यशक्तोऽसौ धनवानलप लनधथनः।

श्रुतवानलप मूर्खोऽसौ यो धमथलवमुर्खो
िनः।।

Meaning in Hindi

िो व्यक्तक्त कमथठ नहीं है अपना धमथ
नहीं लनभाता वो शक्तक्तशािी होते हुए भी लनबथि है,
धनी होते हुए भी गिीब है औि पढे लिर्खे होते हुये
भी अज्ञानी हैं।

33. Even according to the christian moral
and values in sacred Timothy 5.8 it has been
mentioned:

"....But if anyone does not provide
for his relatives, and especially for members of
his household, he has denied the faith and is
worse than unbeliever.."

34. Retrieving to the current case, after
thorough scrutiny of the material available on
record and respecting and acknowledging the
desire of the girl, Ms. Sonam, this court is of the
firm opinion that the charge sheet dated
19.10.2019 U/s 363, 376 I.P.C. and U/s 3/4
POCSO Act, Police Station Bahadurgarh,
Hapur, leading S.S.T. No. 107/2019 (State Vs.
Satish Kumar) pending in the court of Addl.
Sessions Judge (Special Judge), Hapur is an
exercise in futility and accordingly quashed in
exercise of powers U/s 482 Cr.P.C.

35. The victim, Ms. Sonam is set at
liberty forthwith, she may be permitted to
join the company of her husband Satish
Kumar/applicant. The Superintendent of
Police, Hapur would ensure the safety and
security of the couple. Though there are no
chance that opposite party no.2, Nepal Singh
or his allies would commit some mischief
against the applicant and his wife Ms.
Sonam., however, for the purposes of their
safety, Superintendent of Police, Hapur may
keep close vigil regarding their welfare. The
police personal named above need not to
attend the court in connection with the case in
future. The office is directed to send a copy
of this judgment to Superintendent, Nari
Niketan, Meerut and the learned Trial Judge,
Hapur to apprise them about the order and
suitable follow-up action, pursuant to the
judgment.

36. The present 482 Cr.P.C. application
stands allowed.
----------
(2021)02ILR A543
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE VIVEK KUMAR SINGH, J.

Application U/S 482 Cr.P.C. No. 12062 of 2020

Cornel Vivek School ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pavan Kishore, Sri Piyush Kishore
Srivastava
544 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323 - punishment for
voluntry causing hurt , Sections 504 -
Intentional insult with intent to provide
breach of the peace , Sections 506 -
punishment for criminal intimidation ,
Sections 354 - Assault or criminal force to
woman
with
intent
to
outrage
her
modesty - Judicial process, no doubt,
should not be an instrument of oppression
or needless harassment - Court should be
circumspect and judicious in exercising
discretion - should take all relevant facts
and
circumstances
into
consideration
before issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly.(Para - 9)

Application filed for quashing summoning
order passed by Additional Chief Judicial
Magistrate and the proceedings of Complaint
Case under Sections 323, 504, 506, 354 I.P.C. -
on 13.9.2018 at about 01:00 P.M. in afternoon
the opposite party no.2 had gone to Wheler
Club - accused-applicant met him in inebriated
condition where scuffle took place between the
applicant
and
complainant
-
whereafter
complainant went to his home - however, the
accused chases him upto his home - started
abusing and threatened to kill him - wife of the
complainant tried to save the applicant -
applicant misbehaved with his wife also and
tried to outrage the modesty - statements of
complainant (Opp Party No.2) recorded under
Section 200 Cr.P.C. - supported the version of
the complainant - statement of wife of opposite
party
no.2
recorded
under
Section
202
Cr.P.C.(Para - 3,4,5)

HELD:- The factual scenario set forth herein
above clearly shows that the proceedings were
initiated as a counter blast to the proceedings
initiated by the applicant, hence the same are
liable to be quashed. The proceedings of
Complaint Case under Sections 323, 504, 506,
354 I.P.C., pending in the Court of learned
Additional Chief Judicial Magistrate, as well as
the summoning order passed by learned
Additional Chief Judicial Magistrate, are hereby
quashed. (Para -11,12)

Application u/s 482 Cr.P.C. allowed. (E-6)

List of Cases cited:-

St.of Har.Vs Bhajan Lal ,1992 Supp (1) SCC 335

(Delivered by Hon'ble Vivek Kumar Singh, J.)

1. Heard Sri Pavan Kishore and Sri
Piyush Kishore Srivastava, learned counsel
for the applicant and Sri Abhinav Prasad,
learned A.G.A. and perused the material
available on record.

2. Office report dated 3.11.2020 shows
that notices issued to opposite party no.2 has
been served personally, but no one has put in
appearance on his behalf even in the revised
reading of the list.

3. The present 482 Cr.P.C. application
has been filed for quashing the summoning
order dated 2.12.2019 passed by learned
Additional Chief Judicial Magistrate, Court
No.5, Meerut and the proceedings of
Complaint Case No.6297 of 2018 (Lt.
Colonel Devendra Singh Multani Vs. Vivek
Sood), under Sections 323, 504, 506, 354
I.P.C., Police Station Lalkurti, District
Meerut, pending in the Court of learned
Additional Chief Judicial Magistrate, Court
No.5, Meerut.

4. To go over the facts briefly, in the
complaint it is stated that on 13.9.2018 at
about 01:00 P.M. in afternoon the opposite
party no.2 had gone to Wheler Club, where
accused-applicant met him in inebriated
condition where scuffle took place between
the applicant and complainant, whereafter
the complainant went to his home,
however, the accused chases him upto his
home and started abusing and threatened to
2 All. Cornel Vivek School Vs. State of U.P. & Anr.
545
kill him. It has further been stated that wife
of the complainant tried to save the
applicant
however,
the
applicant
misbehaved with his wife also and tried to
outrage the modesty.

5. The statements of complainant
(Opp Party No.2) namely Lt. Colonel
Devendra Singh Multani was recorded
under Section 200 Cr.P.C. on 17.12.2018 in
which he supported the version of the
complainant. Further the statement of wife
of opposite party no.2 namely Smt. Indra
Kaur was recorded under Section 202
Cr.P.C. on 7.2.2019, a copy of which has
been collectively filed as annexure nos.2
and 3 to the affidavit accompanying this
482 Cr.P.C. application.

6. It is further averred that an inquiry
under Section 202(1) Cr.P.C. was also
conduced by the Sub-Inspector, Police
Station Sadar Bazar, District Meerut, a
copy of which has been annexed as
annexure-4 to the affidavit accompanying
this 482 Cr.P.C. application. Thereafter, the
applicant was summoned by the concerned
Court below.

7. Learned counsel appearing on behalf
of the applicant forcefully argued that:-

On the basis of complaint, and
statements recorded during investigation, no
offence, even prima facie, is made out against
the applicant.

No
recovery
of
the
alleged
snatched spectacle has been made from the
applicant.

The applicant is a retired Colonel
of Indian Army and opposite party no.2 is
also a retired Lt. Colonel of Indian Army and
both were the members of Wheler Club,
Meerut Cantt. Meerut. On 13.9.2018 at 12:30
P.M. applicant went to Whelers Club, where
he met Col. M.P. Singh and Col Bist,
thereafter, opposite party no.2 arrived there
and started leveling malicious allegations, on
which the applicant raised objections, on
which opposite party no.2 started abusing
applicant and used derogatory averments
against him and threatened him for which
applicant made complaint to the Chairman of
Whelers Club, Meerut on 14.9.2018 and
15.9.2018, a copy of which has been annexed
as annexure-6 to the affidavit accompanying
this 482 Cr.P.C. application. On the
complaint of the applicant after preliminary
investigation membership of Whelers Club of
opposite party no.2 was suspended vide order
dated 17.9.2020, a copy of which has been
annexed as annexure-7 to the affidavit
accompanying this bail application. It is
further averred that during the course of
investigation by Management of Whelers
Club, explanation was submitted by opposite
party no.2 regarding which response was
called from the applicant mentioning the
extracts of the letters written by opposite
party no.2 by letter dated 3.10.2018, a copy
of which has been annexed as annexure-8 to
the
affidavit
accompanying
this
bail
application. It is further averred that after
proper
enquiry
and
investigation,
Management of Wheler's Club terminated the
membership of opposite party no.2 w.e.f.
17.11.2018 and suspended the membership of
the applicant for a period of three months,
vide notice dated 16.11.2018 issued by
Secretary of Wheler's Club, a copy of which
has been annexed as annexure-9 to the
affidavit accompanying this bail application.

In the facts and circumstances of
the case as noted herein above it clearly
shows that the present proceedings initiated
against the applicant is a counter blast to
the proceedings initiated by the applicant,
which is bad in law.

The
other
witness
whose
statements
were
recorded
during
546 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation i.e. the wife of opposite party
no.2 under Section 200 Cr.P.C. is a
interested
witness.
Moreover,
other
witnesses who were present their i.e. the
Chowkidar
and
tenets
as
has
been
mentioned in complaint, their statements
were not recorded, which creates doubt on
the complaint.

The learned counsel for the
applicant submitted that ingredients of
Section 354 I.P.C. are not discernible from
the bare perusal of the complaint.

8. Per contra, learned A.G.A.
submitted that from the materials placed
before the learned court below, prima facie
case is made out against the applicant under
section 354 I.P.C. and the Court has rightly
taken cognizance. Inherent power of the
High Court should be exercised sparingly
and only in exceptional circumstances.

9. It is trite law that the Court while
exercising its jurisdiction under Section
482 of the Code, the Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable appreciation of it
accusation would not be sustained. That is
an issue which is in the domain of the Trial
Court. However, Judicial process, no doubt,
should not be an instrument of oppression
or needless harassment. Court should be
circumspect and judicious in exercising
discretion and should take all relevant facts
and
circumstances
into
consideration
before issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly.

10. The scope of exercise of power
under Section 482 of the Code and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any court or otherwise to secure
the ends of justice were set out in some
detail by Hon'ble Apex Court in State of
Haryana v. Bhajan Lal [1992 Supp (1)
SCC 335]. A note of caution was, however,
added that the power should be exercised
sparingly and that too in the rarest of the
rare cases. The illustrative categories
indicated by the Hon'ble Apex Court are as
follows:-

(a) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(b) Where the allegations in the
first information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence, justifying an
investigation by police officers under
Section 156 (1) of the Code except under
an order of a Magistrate within the purview
of Section 155(2) of the Code.

(c) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against the
accused.

(d) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(e) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground for proceeding against the accused.
2 All. Rajkumar Kapoor Vs. State of U.P. & Ors.
547

(f) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the Act concerned (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing efficacious redress for the
grievance of the aggrieved party.

(g) Where a criminal proceeding
is manifestly attended with mala fides
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.

11. In view of above, the case in hand
squarely
falls
within
the
guidelines
indicated in category nos. (e) & (g) of
Bhajan Lal's Case (Supra). The factual
scenario set forth herein above clearly
shows that the proceedings were initiated
as a counter blast to the proceedings
initiated by the applicant, hence the same
are liable to be quashed.

12. The application is allowed. The
proceedings of Complaint Case No.6297 of
2018 (Lt. Colonel Devendra Singh Multani
Vs. Vivek Sood), under Sections 323, 504,
506, 354 I.P.C., Police Station Lalkurti,
District Meerut, pending in the Court of
learned
Additional
Chief
Judicial
Magistrate, Court No.5, Meerut as well as
the summoning order dated 2.12.2019
passed by learned Additional Chief Judicial
Magistrate, Court No.5, Meerut, are hereby
quashed.
----------
(2021)02ILR A547
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE
THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 Cr.P.C. No. 14434 of 2020

Rajkumar Kapoor ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sunil Kumar Tiwari

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Code of criminal
procedure,
1973

-
Section
154
-
Information in cognizable cases , Section
156 - Police officer' s power to investigate
cognizable case, Section 156(3) - Any
magistrate empowered under section 190
may order such an investigation, Section
190
-
cognizance
of
offence
by
Magistrates, Section 200 - Examination of
complainant, Section 202 - Postponement
of
issue
of
process,
Section
203
-
Dismissal of complaint, Section 204 -
Issue of process - case where the
Magistrate
declined
for
police
investigation under Section 156(3) Cr.P.C.
and had taken cognizance treating the
application as a complaint case - that
would not come in the way of the
Magistrate in passing the order for police
investigation under Section 202(1) Cr.P.C.
- Any observation in the order of the
Magistrate while taking cognizance of
application under Section 156(3) Cr.P.C.
as a complaint case - that there is no need
of police investigation and directing the
complainant
to
get
the
statement
recorded under Section 200 Cr.P.C. - shall
only mean that no police investigation
was needed for the purpose of taking
cognizance.(Para - 38 )

Some property dispute between the applicant
and opposite party nos. 2 to 8 - forged sale
deed of the property in question - applicant
moved an application before the concerned
police station as well as the SSP concerned, to
lodge the FIR against the opposite party nos.2
to 6 - did nothing - applicant moved an