# Dr. Faisal Khan & Anr v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 2 ILRA 1112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-12
- **Case number:** Application u/s 482 No. 824 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-faisal-khan-anr-v-state-of-u-p-ors-opp-parties-51240
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
419, 420, 467, 468, 471, 427, 323, 504, 506 &
34 - High Court's inherent powers under
Section 482 Cr.P.C. cannot be invoked where
applicants conceal material facts and abuse
the process of law. (Para - 37,38)

Application to quash F.I.R. registered under various
IPC sections - applicants filed Criminal Miscellaneous
Writ Petition seeking quashing of F.I.R. -writ petition
was dismissed by a Division Bench without liberty for
filing a fresh application for the same relief -
applicants then filed a fresh application under Section
482 Cr.P.C. seeking quashing of F.I.R. - applicants
concealed fact of filing and dismissal of earlier writ
petition - supplementary affidavit was filed - claiming
previous writ petition as filed by an advocate without
instructions .(Para-37)

HELD: - Court found story in supplementary
affidavit to be potentially fabricated. Applicants
are not entitled to be granted any relief by this
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1113
Court in exercise of its inherent powers, where
applicants conceal material facts and abuse the
process of law. (Para-37)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,987 of 43,407. This is a partial read: ask again with offset=39987 for what follows._

1112 INDIAN LAW REPORTS ALLAHABAD SERIES

30. After investigation, a final report
was submitted on 30.07.2016. The protest
application was filed on 30.03.2018 after a
long time since filing of the final report.
There are material contradictions between
the statements recorded under Sections 200
and 202 Cr.P.C and the statements recorded
during investigation. There is no medico
legal examination report of the complainant
in support of the allegations.

31. The opposite party no.2 has
signed the compromise in presence of
witnesses and there is no mention of any
monetary transaction between the parties.
Therefore, there appears to be absolutely no
possibility of the applicant's conviction
even after a full fledged trial in the present
case and the continuance of criminal
proceedings against the applicant in such
peculiar circumstances will only result in
persecution of the applicant as well the
opposite party no.2

32. Keeping in view the law laid by
the Hon'ble Supreme Court which has been
referred to above, I am of the view that the
present case falls in the category of
exceptional
cases,
which
warrants
interference of this court in exercise of
power under Section 482 Cr.P.C by
quashing the criminal proceedings on the
ground of compromise between the parties.

33. Accordingly the applicant is
allowed and the summoning order dated
18.08.2022
and
the
proceedings
of
Compliant case No. 100/2018, under
Section 376, 506 I.P.C (Sushila Devi Vs.
Bahorilal) which is pending in the Court of
Additional Chief Judicial Magistrate-I,
District Kheri, are hereby quashed.

34. In case the opposite party no.2 has
received any benefit of any short on the
basis of her allegedly being a victim of
commission of rape, the same shall be
recovered from her as she has resiled from
her allegations.
----------
(2024) 2 ILRA 1112
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 824 of 2024

Dr. Faisal Khan & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicants:
Anshuman Singh, Fazal Haider Zaidi

Counsel for the Opp. Parties:
G.A., Avinash Chandra, Eshan Garg

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Sections
419, 420, 467, 468, 471, 427, 323, 504, 506 &
34 - High Court's inherent powers under
Section 482 Cr.P.C. cannot be invoked where
applicants conceal material facts and abuse
the process of law. (Para - 37,38)

Application to quash F.I.R. registered under various
IPC sections - applicants filed Criminal Miscellaneous
Writ Petition seeking quashing of F.I.R. -writ petition
was dismissed by a Division Bench without liberty for
filing a fresh application for the same relief -
applicants then filed a fresh application under Section
482 Cr.P.C. seeking quashing of F.I.R. - applicants
concealed fact of filing and dismissal of earlier writ
petition - supplementary affidavit was filed - claiming
previous writ petition as filed by an advocate without
instructions .(Para-37)

HELD: - Court found story in supplementary
affidavit to be potentially fabricated. Applicants
are not entitled to be granted any relief by this
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1113
Court in exercise of its inherent powers, where
applicants conceal material facts and abuse the
process of law. (Para-37)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:

1. Ramlal Yadava Vs St. of U.P., (1989) 1 MWN
(Cr.) 198 All (FB)

2. Bhisham Lal Verma Vs St. of U.P. & anr., 2023
SCC OnLine SC 1399

3. Sarguja Transport Service Vs S.T.A.T., (1987) 1
SCC 5

4. R. P. Kapoor Vs St. of Punj. 1960 SCC OnLine SC
21 and

5. Pratibha Rani Vs Suraj Kumar (1985) 2 SCC 370

6. St. of Haryana Vs Bhajanlal 1992 Supp (1) SCC
335

7. Abhishek Vs St. of M.P., 2023 SCC OnLine SC
1083

8. Mahmood Ali & ors. Vs St. of U.P., 2023 SCC
OnLine SC 950,

9. Mitesh Kumar J. Sha Vs St. of Karn. & ors.,
(2022) 14 SCC 572

10. Ananad Kumar Mohatta Vs St. (NCT of Delhi),
(2019) 11 SCC 706

11. Padal Venkata Rama Reddy Vs Kovvuri
Satyanarayana Reddy, (2011) 12 SCC 437

12. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal & ors., (2007) 12 SCC 1

13. Jawed Aslam Vs St. of U.P. & or., Neutral
Citation No. 2023: AHC-LKO:64280

14. Sub Inspector Roop Lal & anr. Vs Lt. Governor
through Chief Secretary, Delhi & ors., (2000) 1
SCC 644

15. Ashok Kumar Vs New India Assurance Co.
(2024) 1 SCC 357

16. Ambalal Parihar Vs St. of Raj. & ors. 2023 SCC
OnLine Raj 1374

17. R. Annapurna Vs Ramadugu Anantha Krishna
Shastry & or., (2002) 10 SCC 401

18. Bhisham Lal Verma Vs St. of U.P. & anr., 2023
SCC OnLine SC 1399

19. Kamini Jaiswal Vs U.O.I. & anr. (2018) 1 SCC
156

20. Sarguja Transport Service Vs S.T.A.T., (1987)
1 SCC 5

21. Hari Singh Mann Vs Harbhajan Singh Bajwa &
ors. (2001) 1 SCC 169

22. Dheer Singh & anr. Vs St. of U. P. & anr.,
(2019) SCC OnLine All 2776

23. Abdul Gaffar & anr. Vs Ishtiaque Ahmad &
anr., 1989 All.L.J. 297.

24. Ramlal Yadava Vs St. of U.P. , (1989) 1 MWN
(Cr.) 198 All (FB)

25. P. Ramachandra Rao Vs St. of Karn. , (2002) 4
SCC 578

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

27. Mahmood Aliand ors. Vs St. of U.P.: 2023 SCC
OnLine SC 950

28. Abhishek Vs St. of M.P., 2023 SCC OnLine SC
1083

29. U.O.I. Vs Cipla Ltd., (2017) 5 SCC 262

30. Ashok Kumar Vs New India Assurance Co. Ltd.,
(2024) 1 SCC 357

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Prashant Chandra Senior
Advocate assisted by Sri. Anshuman Singh
Advocate, the learned Counsel for the
applicants, Sri. Amit Kumar Dwivedi, the
learned A.G.A. and Sri. Avinash Chandra,
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
the learned Counsel for the opposite party
no. 2.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicants have sought quashing of F.I.R.
No. 39 of 2024 under Sections 419, 420,
467, 468, 471, 427, 323, 504, 506 and 34
I.P.C., Police Station Kotwali, District
Barabanki.

3. The learned A.G.A. and the learned
Counsel for the opposite party no. 2 raised
a preliminary objection that the application
under
Section
482
Cr.P.C.
is
not
maintainable for quashing of the F.I.R. in
view of the law laid down by a Bench
consisting of seven Hon'ble Judges of this
Court in Ramlal Yadava versus State of
U.P. (1989) 1 MWN (Cr.) 198 All (FB).

4. Sri. Prashant Chandra, the learned
Senior
Advocate
appearing
for
the
applicant submitted that a First Information
Report can be questioned and set aside in
proceedings under Section 482 Cr.P.C.
which preserve the inherent powers of the
High Court's to prevent abuse of the
process of court. The availability of
extraordinary remedy of Writ Petition
under Article 226 of the Constitution of
India
would
not
oust
the
inherent
jurisdiction of this Court under Section 482
Cr.P.C.

5. The learned A.G.A. and the learned
Counsel for the opposite party no. 2 further
submitted that the applicants not only have
a remedy of filing a Writ Petition available
for the relief sought, rather they have in
fact already availed that remedy by filing
Criminal Miscellaneous Writ Petition No.
642 of 2024, which was dismissed by
means of an order dated 30.01.2024 which
reads as follows: -

"Sri.
Pawan
Kumar
Singh,
learned Counsel for the petitioners, at the
outset prays that he has been instructed by
his client to not press this petition and the
same may be dismissed as such.

Accordingly, this Writ Petition is
dismissed as not pressed."

6. The learned A.G.A. and the learned
Counsel for the opposite party no. 2 also
submitted that the applicants have not
disclosed the fact of filing and dismissal of
the Writ Petition which was filed by them
for the same relief and they are guilty of
concealment of the aforesaid material fact.

7. The learned A.G.A. has placed
reliance on the judgment of the Hon'ble
Supreme Court in the case of Bhisham Lal
Verma versus State of Uttar Pradesh and
another, 2023 SCC OnLine SC 1399.

8. The learned Counsel for the
opposite party no. 2 relied upon the
decision of the Hon'ble Supreme Court in
Sarguja Transport Service v. S.T.A.T.,
(1987) 1 SCC 5.

9. After the aforesaid preliminary
objection had been raised, the learned
Counsel
for
the
applicants
filed
a
supplementary affidavit stating that the
applicant no. 1 had met Sri. K. K. Yadav
Advocate on 22.01.2024, had told him that
there was a grave urgency for filing a
petition as he and his brother (the applicant
no. 2) could be arrested any moment, and
he had handed over the papers of the case
to the Advocate, who had told him that the
preparation of the case will take some time.
In the meanwhile, the Advocate got an
affidavit of the applicant no. 1 prepared and
got some blank papers signed by him,
although the applicant no. 1 had told the
Advocate that he had come to seek opinion
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1115
only and he had not come prepared to get
the case filed and he was not even carrying
any fee and expenses. The applicant no. 2
had independently approached Sri. Fazal
Haider Zaidi, Advocate for the same
purpose on 19.01.2024, who had called
both the applicants on the following day.
Both the applicants met Sri. Zaidi Advocate
on 23.01.2024, who got an affidavit of the
applicant no. 1 prepared in the affidavit
centre of this Court and told the applicants
to contact the Advocate after a couple of
days and the petition would be prepared in
the meantime. The applicant no. 1 met Sri.
Zaidi Advocate on 25.01.2024, on which
date the petition was prepared, it was
signed on 26.01.2024 and Sri. Zaidi
Advocate told him that the petition would
be filed on 27.01.2024. The applicant no. 1
received a phone call from Sri. Pawan
Kumar Singh Advocate in the evening of
29.01.2024 informing that he had filed the
Writ Petition under instructions of Sri. K.
K. Yadav Advocate and it would come up
on 30.01.2024. The applicants told him that
he had not instructed Sri. Yadav Advocate
to file any petition and he had already
instructed some other Counsel to file the
petition. He instructed Sri. Pawan Kumar
Singh Advocate to inform the Court that he
had not been instructed for filing the
petition on behalf of the applicant no. 1.

10. Written submissions have been
filed by the learned Counsel for the
applicants inter alia submitting that the
judgment in Ramlal Yadava (Supra) was
given in the backdrop of the fact that
Section 438 Cr.P.C., which provides for
grant of anticipatory bail, had been taken
away in the State of U. P. vide U. P. Act
No. 16 of 1976. As the fundamental right
guaranteed
by
Article
21
of
the
Constitution of India was under threat of
violation, redress was being granted by this
Court in petitions filed under Article 226 of
the Constitution of India as an alternative to
anticipatory bail under Section 438 Cr.P.C.
It is for this reason that when a chargesheet is filed, the party is relegated to file a
petition under Section 482 Cr.P.C. and its
legality is not examined in the petition
under Article 226, even if it is pending. The
learned Counsel for the applicants has
submitted that Ramlal Yadava (Supra) is
no more a good law because it does not
take into consideration the law laid down
by the Hon'ble Supreme Court in the case
of R. P. Kapoor versus State of Punjab
1960 SCC OnLine SC 21 and Pratibha
Rani versus Suraj Kumar (1985) 2 SCC
370 in correct perspective. The aforesaid
judgements have been considered by the
Hon'ble Supreme Court in State of
Haryana versus Bhajanlal 1992 Supp (1)
SCC 335, wherein it has been held that an
F.I.R. can be quashed in exercise of
inherent powers under Section 482 Cr.P.C.
After the Full Bench decision in Ramlal
(Supra), the Hon'ble Supreme Court has
consistently held in numerous judgments
that a First Information Report can be
challenged under Section 482 Cr.P.C. Some
of those judgments are Abhishek versus
State of Madhya Pradesh : 2023 SCC
OnLine SC 1083, Mahmood Ali and
others versus State of U.P. : 2023 SCC
OnLine SC 950, Mitesh Kumar J. Sha
versus State of Karnataka and others :
(2022) 14 SCC 572, Ananad Kumar
Mohatta versus State (NCT of Delhi) :
(2019) 11 SCC 706, Padal Venkata Rama
Reddy versus Kovvuri Satyanarayana
Reddy : (2011) 12 SCC 437 and Inder
Mohan Goswami and another versus
State of Uttaranchal and others : (2007)
12 SCC 1.

11. Reference has also been made to a
judgment dated 04.10.2023 rendered by a
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
coordinate Bench of this Court in Jawed
Aslam versus State of U.P. and other :
Neutral
Citation
No.
2023:AHCLKO:64280, wherein it has been held that a
petition filed under Section 482 Cr.P.C. is
maintainable
for
challenging
a
First
Information Report and it is not necessary
to invoke the jurisdiction under Article 226
of the Constitution of India. The decision of
the coordinate Bench is binding on this
Court as per the law laid down by the
Hon'ble Supreme Court in Sub Inspector
Roop Lal and another versus Lt. Governor
through Chief Secretary, Delhi and others :
(2000) 1 SCC 644.

12. Regarding the principle laid down
in Sarjuga Transport (Supra), it has been
submitted that the petitioner has not
invoked the jurisdiction under Article 226
again and he had abandoned the remedy
under Article 226 by instructing his
Counsel, but he had not abandoned the
right to file an application under Section
482.

13. Reliance has been placed upon the
decision in the case of Ashok Kumar
versus New India Assurance Company :
(2024) 1 SCC 357 wherein it has been held
that due to an act of a lawyer of
withdrawing a complaint, the litigant
cannot be precluded to institute a fresh
complaint after the withdrawal of the
earlier complaint by the lawyer without
instructions.

14. The learned Counsel for the
opposite party no. 2 has submitted that the
conduct of the applicants in first filing a
Writ Petition seeking quashing of the
F.I.R., thereafter withdrawing the same
without seeking any liberty from the
Division Bench dealing with Criminal Writ
Petition and then filing an application
under Section 482 Cr.P.C. before a Single
Judge Bench, and that too, without
disclosing the fact of filing and dismissal of
the Writ Petition, amounts to bench hunting
tactics, which has been deprecated time and
again. He has relied upon the judgments in
the cases of Ambalal Parihar versus State
of Rajasthan and others 2023 SCC
OnLine Raj 1374, R. Annapurna versus
Ramadugu Anantha Krishna Shastry
and other (2002) 10 SCC 401, Bhisham
Lal Verma versus State of Uttar Pradesh
and another 2023 SCC OnLine SC 1399,
Kamini Jaiswal versus Union of India
and another (2018) 1 SCC 156, Sarguja
Transport Service v. S.T.A.T., (1987) 1
SCC 5, Hari Singh Mann versus
Harbhajan Singh Bajwa and others
(2001) 1 SCC 169, Dheer Singh and
another versus State of U. P. & another
(2019) SCC OnLine All 2776 and Abdul
Gaffar and another vesrus Ishtiaque
Ahmad and another 1989 All.L.J. 297.

15. In Ramlal Yadava versus State
of U.P. (1989) 1 MWN (Cr.) 198 All (FB) it
was held that an application under Section
482 Cr.P.C. is not maintainable for the
relief of quashing of an F.I.R. and this relief
can be claimed only by filing a Writ
Petition
under
Article
226
of
the
Constitution of India. The learned Counsel
for the applicants submits that this
judgment
was
delivered
without
considering the precedents in the correct
perspective. There is neither any need nor
any occasion to decide the correctness of
the seven Judge Bench of this Court in
Ramlal Yadava (Supra), as there are
numerous subsequent decisions of the
Hon'ble Supreme Court laying down that
an F.I.R. can be quashed in exercise of the
inherent powers recognized by Section 482
Cr.P.C., subject to the conditions laid down
in those judgments.
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1117

16. A Bench consisting of seven
Hon'ble Judges of the Hon'ble Supreme
Court held in P. Ramachandra Rao v.
State of Karnataka, (2002) 4 SCC 578
that: -

"21....In
appropriate
cases,
inherent power of the High Court, under
Section 482 can be invoked to make such
orders, as may be necessary, to give effect
to any order under the Code of Criminal
Procedure or to prevent abuse of the
process of any court, or otherwise, to
secure the ends of justice. The power is
wide and, if judiciously and consciously
exercised, can take care of almost all the
situations where interference by the High
Court becomes necessary on account of
delay in proceedings or for any other
reason
amounting
to
oppression
or
harassment in any trial, inquiry or
proceedings. In appropriate cases, the
High
Courts
have
exercised
their
jurisdiction under Section 482 Cr.P.C. for
quashing of first information report and
investigation, and terminating criminal
proceedings if the case of abuse of process
of law was clearly made out. Such power
can certainly be exercised on a case being
made out of breach of fundamental right
conferred
by
Article
21
of
the
Constitution."

17. In State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335, the Hon'ble
Supreme
Court
considered
numerous
precedents on the point and summarized
the law on the point in the following words:
-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

i. 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.

ii. 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.

iii. 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.

iv. 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.

v. Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

vi. Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (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
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

vii. Where a criminal proceeding
is manifestly attended with mala fide
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.

103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases; that the court will not be
justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the
FIR or the complaint and that the
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the
court to act according to its whim or
caprice."

18. In Mahmood Aliand others
versus State of U.P.: 2023 SCC OnLine
SC 950, it was observed that: -

"Whenever an accused comes
before the Court invoking either the
inherent
powers
under
Section482of
theCode of Criminal Procedure(Cr.P.C.) or
extraordinary
jurisdiction
under
Article226of theConstitutionto get the FIR
or the criminal proceedings quashed
essentially on the ground that such
proceedings are manifestly frivolous or
vexatious or instituted with the ulterior
motive for wreaking vengeance, then in
such circumstances the Court owes a duty
to look into the FIR with care and a little
more closely. We say so because once the
complainant decides to proceed against the
accused with an ulterior motive for
wreaking personal vengeance, etc., then he
would ensure that the FIR/complaint is very
well drafted with all the necessary
pleadings. The complainant would ensure
that
the
averments
made
in
the
FIR/complaint are such that they disclose
the necessary ingredients to constitute the
alleged offence. Therefore, it will not be
just enough for the Court to look into the
averments made in the FIR/complaint alone
for the purpose of ascertaining whether the
necessary ingredients to constitute the
alleged offence are disclosed or not. In
frivolous or vexatious proceedings, the
Court owes a duty to look into many other
attending circumstances emerging from the
record of the case over and above the
averments and, if need be, with due care
and circumspection try to read in between
the lines. The Court while exercising its
jurisdiction
under
Section482of
theCr.P.C.or
Article226of
theConstitutionneed not restrict itself only
to the stage of a case but is empowered to
take into account the overall circumstances
leading to the initiation/registration of the
case as well as the materials collected in
the course of investigation."

19. In Abhishek v. State of M.P.,
2023 SCC OnLine SC 1083 also, it was
held that "It is well settled that the High
Court would continue to have the power to
entertain and act upon a petition filed
under Section482Cr. P.C.to quash the FIR
even when a charge-sheet is filed by the
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1119
police during the pendency of such
petition".

20. Thus the Hon'ble Supreme Court
has always treated the extraordinary powers
under Article 226 of the Constitution of
India and the inherent powers recognized
by Section 482 Cr.P.C. at par and an F.I.R.
can be quashed in exercise of either of the
aforesaid two proceedings.

21. It is also settled law that in case
there is a conflict in the judgments of the
Hon'ble Supreme Court and a High Court,
undisputedly the law declared by the High
Court has to give way to the law laid down
by the Hon'ble Supreme Court. As the law
laid down by the seven Judge Bench of this
Court in Ramlal Yadava (Supra) is in
conflict with the law laid down by the
Hon'ble
Supreme
Court
in
P.
Ramachandra
Rao,
Bhajan
Lal,
Mahmood Ali and Abhishek (Supra),
undisputedly the law laid down by the
Hon'ble Supreme Court would govern the
field.

22. Therefore, the applicants had the
option to file a Writ Petition or to file an
application under Section 482 Cr.P.C. The
learned Counsel for the applicants has
submitted that the principle of dominus
litus entitles the applicants to choose the
any one of the fora.

23. There can be no dispute to the
proposition that in case a litigant has the
option of approaching more than one forum
for redressal of his grievances, he has the
right
to
choose
the
forum
of
his
convenience. However, the question in the
present
case
is
not
regarding
maintainability of the application under
Section 482 Cr.P.C. - the question is of
propriety of filing of the application.

24. As per the provisions contained in
Chapter V Rule 2 of the Allahabad High
Court Rules, 1952, the applications under
Section 482 Cr.P.C. are to be placed before
a single Judge Bench whereas Criminal
Writ Petitions filed for quashing of an
F.I.R. are to be placed before a Division
Bench. Although the powers of the High
Court under extraordinary jurisdiction
under Article 226 of the Constitution of
India and the inherent powers of the High
Court recognized by Section 482 Cr.P.C.
are the same, the Hon'ble Chief Justice has
assigned the roster of Criminal Writ
Petitions to a Division Bench and the roster
of Applications under Section 482 Cr.P.C.
has been assigned to the Single Judge
Bench.

25. The principle of dominus litus
was applicable at the inception, when the
applicants had to choose one of the two
remedies available to them. The applicants
had chosen to file a Writ Petition in which
the scope of enquiry and interference was
the same as that under Section 482 Cr.P.C.
However, the applicants got the Writ
Petition dismissed as not pressed although
their grievance still existed. The applicants
did not disclose any reason for getting the
writ petition dismissed as not pressed. The
reason could well be an assessment that
they would not be able to get a favourable
order from the Division Bench. The Writ
Petition was got dismissed as not pressed
without seeking a liberty from the Division
Bench to approach the Single Judge Bench
by filing an application under Section 482
Cr.P.C.

26. In Union of India v. Cipla Ltd.,
(2017) 5 SCC 262, the Hon'ble Supreme
Court held that the Court is required to
adopt a functional test vis-à-vis the
litigation and the litigant. What has to be
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
seen is whether there is any functional
similarity in the proceedings between one
court and another or whether there is some
sort of subterfuge on the part of a litigant. It
is this functional test that will determine
whether a litigant is indulging in forum
shopping or not. The facts stated above
clearly establish that it is a typical example
of forum shopping, which practice has
always been deprecated by the Courts.

27. Moreover, the facts of filing and
dismissal of the earlier petition filed under
Article 226 for the same relief was
concealed in the application under Section
482 Cr.P.C. The learned A.G.A. raised a
preliminary
objection
regarding
maintainability of the application under
Section 482 and the learned Counsel for the
applicant replied to it. It was only after the
learned Counsel for the opposite party no. 2
had pointed out concealment of the fact of
filing of the Writ Petition and its dismissal,
that the learned Counsel for the applicants
filed the supplementary affidavit. It appears
that the supplementary affidavit was kept
ready to meet the contingency of the
concealment of filing and dismissal of the
Writ Petition being brought to the notice of
this Court.

28. This conduct of the applicants in
concealing the material fact of filing and
dismissal of the Writ Petition while they
have approached to invoke the inherent
powers of this Court to make such orders as
may be necessary to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice, appears to be an abuse
of the process of Court and it does not in
any manner secure the ends of justice and it
is liable to be deprecated.

29. In Sarguja Transport Service v.
S.T.A.T., (Supra), the Hon'ble Supreme
Court considered the question whether it
would or would not advance the cause of
justice if the principle underlying Rule 1 of
Order XXIII of the Code of Civil Procedure
is adopted in respect of Writ Petitions filed
under Articles 226/227 of the Constitution
of India also. While answering this
question, the Hon'ble Supreme Court held
that: -

"8...It is plain that when once a
Writ Petition filed in a High Court is
withdrawn by the petitioner himself he is
precluded from filing an appeal against the
order passed in the Writ Petition because
he cannot be considered as a party
aggrieved by the order passed by the High
Court. He may as stated inDaryaov.State of
U.P.[AIR 1961 SC 1457] in a case
involving the question of enforcement of
fundamental rights file a petition before the
Supreme Court under Article 32 of the
Constitution of India because in such a
case there has been no decision on the
merits by the High Court. The relevant
observation of this Court inDaryao caseis
to be found at p. 593 and it is as follows:

"If the petition is dismissed as
withdrawn it cannot be a bar to a
subsequent petition under Article 32,
because in such a case there has been no
decision on the merits by the court. We wish
to make it clear that the conclusions thus
reached by us are confined only to the point
of res judicata which has been argued as a
preliminary issue in these Writ Petitions
and no other."

* * *

"9...But we are of the view that
the principle underlying Rule 1 of Order
XXIII of the Code should be extended in
the interests of administration of justice to
cases of withdrawal of Writ Petition also,
not on the ground of res judicata but on
the ground of public policy as explained
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1121
above. It would also discourage the
litigant from indulging in bench-hunting
tactics. In any event there is no justifiable
reason in such a case to permit a petitioner
to invoke the extraordinary jurisdiction of
the High Court under Article 226 of the
Constitution
once
again.
While
the
withdrawal of a Writ Petition filed in a
High Court without permission to file a
fresh Writ Petition may not bar other
remedies like a suit or a petition under
Article 32 of the Constitution of India since
such withdrawal does not amount to res
judicata, the remedy under Article 226 of
the Constitution of India should be deemed
to have been abandoned by the petitioner in
respect of the cause of action relied on in
the Writ Petition when he withdraws it
without such permission. ... We, however,
make it clear that whatever we have stated
in this order may not be considered as
being applicable to a Writ Petition
involving the personal liberty of an
individual in which the petitioner prays for
the issue of a writ in the nature of habeas
corpus or seeks to enforce the fundamental
right guaranteed under Article 21 of the
Constitution since such a case stands on a
different footing altogether. We, however
leave this question open."

30. The principle of law laid down in
Sarguja Transport (Supra) will apply to
the present case as well, where although the
previous petition was filed under Article
226 of the Constitution of India and the
subsequent application has been filed under
Section 482 Cr.P.C., the prayers made in
both the petitions and the scope of enquiry
and interference are the same and the only
difference is that the earlier Writ petition
was to be heard by a Division Bench while
the instant application under Section 482
Cr.P.C. is to be heard by a Single Judge
Bench.

31. Now I will proceed to consider the
explanation given by the applicants in the
supplementary affidavit for withdrawal of
the Writ Petition, that the Writ Petition had
been filed by a Counsel who had no
instructions. The applicant no. 1 has stated
in the supplementary affidavit that he had
met Sri. K. K. Yadav Advocate on
22.01.2024, had told him that there was a
grave urgency for filing a petition as he and
his brother (the applicant no. 2) could be
arrested any moment, and he had handed
over the papers of the case to the Advocate,
who had told him that the preparation of
the case will take some time. In the
meanwhile, the Advocate got an affidavit of
the applicant no. 1 prepared and got some
blank papers signed by him, although the
applicant no. 1 had told the Advocate that
he had come to seek opinion only and he
had not come prepared to get the case filed
and he was not even carrying any fee and
expenses.

32. The earlier petition was signed by
the applicants on 22.01.2024 and it was
filed on 23.01.2024 and it indicates that the
Advocate engaged by the applicants acted
promptly,
keeping
in
mind
the
apprehension expressed by the applicant no
1 that he and his brother might be arrested
any moment. The applicant no. 1 has
disclosed his qualification to be 'B.Tech.'
and he is running a business. A reasonable
person of ordinary prudence would not
accept that an engineer businessman would
meet an Advocate, tell him that there was a
grave urgency for filing a petition as he and
his brother could be arrested any moment,
he would hand over the papers of the case
to the Advocate, sign an affidavit and some
blank papers, but at the same time he would
tell the Advocate that he had come to seek
opinion only and he had not come prepared
to get the case filed, although he was
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
apprehending
arrest
any
moment.
Admittedly the applicant no. 1 had given
the relevant papers to the Advocate and he
had signed the papers and executed an
Affidavit and although the applicants have
not stated anything about Vakalanama, the
mere filing of the petition establishes that
both
the
applicants
had
signed
a
Vakalatnama also. In these circumstances,
it cannot be accepted that the Writ Petition
filed on 23.01.2024 filed after the applicant
no. 1 had handed over and signed the
papers on 22.01.2024, had been filed by the
Advocate
without
any
instruction.
Therefore, the averments made in the
supplementary affidavit do not inspire
confidence.

33. The supplementary affidavit
further states that both the applicants had
met Sri. Fazal Haider Zaidi Advocate on
23.01.2024, who had got an affidavit of the
applicant no. 1 prepared in the affidavit
centre of this Court and told the applicants
to contact the Advocate after a couple of
days and the petition will be prepared in the
meantime. The applicant no. 1 met Sri.
Zaidi Advocate on 25.01.2024, on which
date the petition was prepared and it was
signed on 26.01.2024. However, the
affidavit filed with the application under
Section 482 discloses that it was signed by
the applicant no. 1 and the contents of the
affidavit were solemnly affirmed before an
Oath Commissioner appointed by this
Court on 27.01.2024. While verifying the
affidavit, the Oath Commissioner was
performing his official function and,
therefore, there is a legal presumption that
he has performed his official act in a
regular manner. There is nothing to rebut
this presumption, except the contention of
the applicant no. 1 himself, which suffers
from serious self-contradictions. Therefore,
the
declaration
made
by
the
Oath
Commissioner has to be presumed to be
correct.

34. It appears that the applicant no. 1
has cooked up a story to overcome the bar
against filing of the second application for
the same relief and the charge of
concealment of material fact of filing and
dismissal of the earlier Writ petition. In this
regard, it is also significant to note that
even regarding the instant application the
applicants claim that they had met and
instructed Sri. Fazal Haider Zaidi Advocate
only whereas the application has not been
filed by Sri. Fazal Haider Zaidi. The
application has been signed and filed by
Sri. Anshuman Singh and Ms. Geetika
Yadav Advocates. Ms. Geetika Yadav has
not accepted the Vakalatnama executed by
the
petitioners.
In
this
manner
the
applicants have again left the scope of
repeating the story and disowning Sri.
Anshuman Singh and Ms. Geetika Yadav in
case they are not satisfied with the outcome
of the case.

35. So far as the judgment in Ashok
Kumar v. New India Assurance Co. Ltd.,
(2024) 1 SCC 357 is concerned, in that case
the appellant had filed a complaint before
the Consumer Forum on 11.06.2009
alleging that the respondent was delaying
the settlement of the claim for theft of a
stolen truck. On the date of the complaint,
the Insurance Company had not repudiated
the claim. After that, on 15-10-2009 the
respondent Insurance Company repudiated
the claim. The complaint came up before
the District Forum on 22.11.2020 when the
appellant's Advocate made a statement that
he did not want to proceed with the case
and it may be dismissed. The claimant filed
a fresh complaint inter alia stating that after
filing the earlier complaint, since the
counsel for the Insurance Company sought
2 All. Dr. Faisal Khan & Anr. Vs. State of U.P. & Ors.
1123
numerous adjournments, his counsel got
annoyed with the attitude of the said
advocate and, by mistake, withdrew the
case on 22-11-2020. It was expressly
pleaded that the withdrawal of the said
complaint was unfortunate, and that the
appellant should not be made to suffer for
the wrong deeds of the counsel. In the
complaint, the appellant prayed for a
direction to the Insurance Company to pay
the insurance amount.In the aforesaid
factual background, the Hon'ble supreme
Court held that: -

"21.In
any
event,
we
are
convinced that interest of justice requires
that the appellant, in the peculiar facts and
circumstances of this case, should not be
non-suited on the ground that his earlier
complaint was withdrawn. We say so for
the following reasons:

(i)Firstly, the original Complaint
No. 515 was filed on 11-6-2009 when the
Insurance Company had not taken any
decision on the claim. In fact, the
complainant had alleged that the Insurance
Company was lingering on with the issue
and had complained of not rendering
"sufficient service";

(ii)Secondly,
pending
that
complaint, it was on 15-10-2009 that the
repudiation letter was issued on purported
breach of Conditions 1 & 5 of the Policy;

(iii)Thirdly,
we
find
that
a
separate proceeding has been drawn up
recording the statement of only the lawyer
of the complainant. The statement of the
lawyer stated that "I, Surender Kumar
Gulia, Advocate, state that I do not want to
proceed with my case. It may be
dismissed".

(iv)Fourthly, in the complaint
filed on 6-3-2012, the appellant avers that
since the lawyer for the opposite partyInsurance Company was taking numerous
dates for arguments, his counsel getting
annoyed with the attitude of the advocate of
the opposite party withdrew the abovesaid
case by mistake.

(v)Fifthly, the appellant further
avers that the withdrawal was unfortunate
and he ought not to have been prejudiced
for the deeds of his lawyer.

(vi)Sixthly, the finding of the
National Commission is also factually
erroneous, on this score. The learned
counsel for the appellant drew our
attention to para 9 of the order of the
National
Commission
wherein
the
following erroneous finding was recorded.
(Ashok Kumar case[New India Assurance
Co. Ltd.v.Ashok Kumar, 2018 SCC OnLine
NCDRC 1920] , SCC OnLineNcdrc)

"9. It is not disputed that earlier
also, the complainant had filed consumer
Complaint No. 515 of 2009 against the
opposite party/Insurance Company on the
same cause of action. Perusal of record
would show that aforesaid complaint filed
by
the
complainant
in
respect
of
repudiation of insurance claim regarding
the same theft was withdrawn by the
complainant unconditionally on 22-112010. Copy of the relevant order in CC No.
515 of 2009 is on the record. The order is
reproduced as under:

'Statement of learned counsel
for the complainant for withdrawal of the
complaint recorded separately. In view of
the statement, the complaint of the
complainant is hereby dismissed as
withdrawn. File be consigned to record
room after due compliance'."