# Hanumant Kumar Gupta v. State of U.P. and others

- **Citation:** (2003) 2 ILRA 275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-06-11
- **Case number:** Criminal Misc. Writ Petition No. 3155 of 2003
- **Bench:** Dr. B.S. Chauhan, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hanumant-kumar-gupta-v-state-of-u-p-and-others-40084
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226-
quashing of Criminal proceedings- the
inherent power of quashing the criminal
proceedings has to be exercised very
sparingly and with circumspection and
that too in the rarest of rare cases and
the
Court
cannot
be
justified
in
embarking upon an enquiry as to the
reliability of geniuses of otherwise of
allegations
made
in
the
F.I.R.
or
complaint and the extra ordinary and
inherent powers of court do not confer
an arbitrary jurisdiction on the Court to
act according to its whim of caprice.

Held- Para 3

The inherent power of quashing the
criminal proceedings has to be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases
and the Court cannot be justified in
embarking upon an enquiry as to the
reliability or genuineness or otherwise of
allegations
made
in
the
F.I.R.
or
complaint and the extraordinary and
inherent powers of Court do not confer
an arbitrary jurisdiction on the Court to
act according to its whims or caprice.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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Case law referred :
AIR 1945 PC 18, AIR 1988 SC 709,
AIR 1977 SC 2229, AIR 1982-709,
AIR 1993 SC 892, AIR 1003 SC 1082,
 (1995) 6 SCC 194, (1996) 7 SCC 440,
JT 1996 (1) SC 601,(1998) 1SCC 133,
(1998) 5 SCC 749,JT (1999)1 SCC 548,
1999 (1) SCC 188, AIR 1999 SC 1044,
1999 (6) SC 146, 1999 (8) SCC 728,
2000 (1) SCC 722, 2000(2) SCC 636,
1996 (7) SCC 705, AIR 1985 SC 628,
AIR 1976 SC 1947, AIR 1983 SC 1219,
1997 SCC (Crl) 1073, 1998 (8) SCC 745,
JT 2000 (2) SC 426, 1992 SC 604,
AIR 1947, SC 877, AIR 1980 SC 329,
AIR 1995 SC 785, AIR 2001 SC 40,
1994 (4) SCC 142, (2000) 2 SCC 57,
AIR 2001 SC 556, AIR 2001 SC 1507,
(2002) 8 SCC 161, (2002) 5 SCC 371

## Text

http://www.allahabadhighcourt.nic.in
2 All] Hanumant Kumar Gupta V. State of U.P. and others
275
circumstances of this case inasmuch as
the nature of service which is expected of
a person belonging to a disciplined force.
If the authorities below keeping in view
of this fact that the petitioner being a
member of the disciplined force of the
State Police when deliberately absented
from duty, committed grave misconduct,
this Court while acting under Article 226
of the Constitution of India is not
supposed to interfere in the said finding
recorded by them. The learned counsel in
this context has placed reliance on the
case law of M/s Lakshmi Precision
Screws Ltd. V. Ram Bahagat, reported in
JT 2002 (6) SC 162 and the Regional
Manager and Disciplinary Authority
State Bank of India, Hyderabad and
another vs. S. Mohammed Gaffar,
reported in JT 2002 (6) SC 157.

12. In the aforesaid view of the
matter that the petitioner being a police
personnel belonging to a disciplined force
made his deliberate absence from duty
and did not perform the assigned job of
Santari on the date 2.6.1992, instead he
left for his village home where he is
shown to have involved himself in a
murder case which has ended into his
conviction from the trial court, his alleged
misconduct is not to be taken lightly and
if the punishing authority has awarded the
extreme penalty of dismissal from his
service and the same has been confirmed
by the appellate authority as well as the
Tribunal,
there
is
no
scope
for
interference in such orders under Article
226 of the Constitution of India by this
Court.

13. In the result, the writ petition
having no merit, fails and it is hereby
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.6.2003

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ASHOK BHUSHAN, J.

Criminal Misc. Writ Petition No. 3155 of
2003

Hanumant Kumar Gupta
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri D.V. Singh

Counsel for the Respondents:
A.G.A.

Constitution
of
India,
Article
226-
quashing of Criminal proceedings- the
inherent power of quashing the criminal
proceedings has to be exercised very
sparingly and with circumspection and
that too in the rarest of rare cases and
the
Court
cannot
be
justified
in
embarking upon an enquiry as to the
reliability of geniuses of otherwise of
allegations
made
in
the
F.I.R.
or
complaint and the extra ordinary and
inherent powers of court do not confer
an arbitrary jurisdiction on the Court to
act according to its whim of caprice.

Held- Para 3

The inherent power of quashing the
criminal proceedings has to be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases
and the Court cannot be justified in
embarking upon an enquiry as to the
reliability or genuineness or otherwise of
allegations
made
in
the
F.I.R.
or
complaint and the extraordinary and
inherent powers of Court do not confer
an arbitrary jurisdiction on the Court to
act according to its whims or caprice.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
276
Case law referred :
AIR 1945 PC 18, AIR 1988 SC 709,
AIR 1977 SC 2229, AIR 1982-709,
AIR 1993 SC 892, AIR 1003 SC 1082,
 (1995) 6 SCC 194, (1996) 7 SCC 440,
JT 1996 (1) SC 601,(1998) 1SCC 133,
(1998) 5 SCC 749,JT (1999)1 SCC 548,
1999 (1) SCC 188, AIR 1999 SC 1044,
1999 (6) SC 146, 1999 (8) SCC 728,
2000 (1) SCC 722, 2000(2) SCC 636,
1996 (7) SCC 705, AIR 1985 SC 628,
AIR 1976 SC 1947, AIR 1983 SC 1219,
1997 SCC (Crl) 1073, 1998 (8) SCC 745,
JT 2000 (2) SC 426, 1992 SC 604,
AIR 1947, SC 877, AIR 1980 SC 329,
AIR 1995 SC 785, AIR 2001 SC 40,
1994 (4) SCC 142, (2000) 2 SCC 57,
AIR 2001 SC 556, AIR 2001 SC 1507,
(2002) 8 SCC 161, (2002) 5 SCC 371

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the FIR dated 28.5.2003
lodged by the respondent no. 4 in case
crime no. 3453 of 2003 under section 395
IPC in Police Station Kotwali, Khalilabad
district Sant Kabir Nagar.

2. Learned counsel for the petitioner
has submitted that the FIR has been
lodged
as
the
respondent
no.
4
complainant was having grievance against
the petitioner and had malicious intention,
thus , the same is liable to be quashed.

3. Legal maxim "quando Aliquid
Mandatur, Mandatur Et Omne Per Quod
Per Venitur Ad Illud"- means if anything
is commanded, every thing by which it
can be accomplished is also commanded.
But the inherent power of quashing the
criminal proceedings has to be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases and
the Court cannot be justified in embarking
upon an enquiry as to the reliability or
genuineness or otherwise of allegations
made in the F.I.R. or complaint and the
extraordinary and inherent powers of
Court
do
not
confer
an
arbitrary
jurisdiction on the Court to act according
to its whims or caprice. The same can be
resorted to for correcting some grave
errors that might be committed by the
subordinate
courts
or
where
the
complainant, at the instance of somebody
else wants to settle his score with other
party and uses deliberately the machinery
of the court for oblique purpose and the
party is likely to be subjected to
unnecessary
harassment
for
facing
criminal proceedings or where the court is
satisfied that in case the proceedings are
not
quashed,
there
will
be
gross
miscarriage of justice. However, the
Court, under its inherent powers, can
neither intervene at an uncalled for stage
nor it can soft pedal the course of justice
at a crucial stage of investigation/
proceedings. (vide Emperor vs. Khwaja
Nazir
Ahmed
AIR
1945
PC
18,
Kurukshetra University vs. state of
Haryana, AIR 1977 SC 229, State of West
Bengal vs. Swapan Kumar Gupta AIR
1982 949, Madhavrao Jiwaji Rao Scindia
vs. Sambharjirao Chandrojirao.

4. Angre & ors. AIR 1988 SC 709,
Janta Dal vs. H.S. Chowdhary & ors. AIR
1993 SC 892, Union of India vs. W.N.
Chandha AIR 1993 SC 1082, Rupal Deol
Bajaj & anr. Vs. Kanwar Pal Singh Gill &
Anr. 1995) 6 SCC 194, Musthaq Ahmad
vs. Mohammed Habibur Rahman Faizi &
ors. (1996) 7 SCC 440, State of Bihar vs.
Rajendra Agarwal, JT 1996 (1) SC 601,
Ashim Kumar Roy vs. Bipinbhai Vadilal
Mehta, (1998) 1 SCC 133, M/s Pepsi
Foods Ltd. & Anr. Vs. Special Judicial
Magistrate & Ors. (1998) 5 SCC 749, M.
Krishna vs. State of Karnataka, JT 1999
(1) SC 540, Rakesh Ranjan Gupta vs.
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2 All] Hanumant Kumar Gupta V. State of U.P. and others
277
State of U.P. & ors. (1999) 1 SCC 188,
State of Kerala vs. O.C. Juttan AIR 1999
SC 1044, Arun Shanker Shukla vs. State
of U.P. & ors. (1999) 6 SCC 146,
Satvinder Kaur vs. State (Govt. of NCT of
Delhi & Anr. (1999) 8 SCC 728, Kanti
Badra Shah & Anr. Vs. State of West
Bengal (2000) 1 SCC 722 and G. Sagar
Suri & Anr. Vs. State of U.P. & ors.
(2000) 2 SCC 636).

5. In State of U.P. vs. O.P. Sharma
(1996) 7 SCC 705, the Hon'ble Supreme
Court has indicated that the High Court
should be loath to interfere at the
threshold to thwart the prosecution
exercising its inherent power under
section 482 of Code or under article 226
or 227 of the Constitution of India, as the
case may be, and allow the law to take its
own course. Similar view had been taken
in Pratibha Rani vs. Suraj Kumar & Anr.
AIR 1985 SC 628.

6. State of Karnataka vs. L.
Muniswami AIR 1977 SC 1489 the Apex
court held that for the purpose of
determining whether there is sufficient
ground for proceeding against an accused
the court possesses a comparatively wider
discretion in the exercise of which it can
determine the question whether the
material on record, if unrebutted, is such
on the basis of which a conviction can be
said reasonably to be possible".

7. In Smt. Nagawwa vs. Veeranna
Shivalingappa Konjalgi AIR 1976 SC
1947, the Hon'ble Supreme Court held as
under:-

"(1) Where the allegations made in the
complaint or the statements of the
witnesses recorded in support of the
same taken at their face value make
out absolutely no case against the
accused or the complaint does not
disclose the essential ingredients of an
offence which is alleged against the
accused,
(2) Where the allegations made in the
complaint are patently absurd and
inherently improbable so that no
prudent person can ever reach a
conclusion that there is sufficient
ground for proceeding against the
accused,
(3) Where the discretion exercised by the
Magistrate in issuing process in
capricious and arbitrary having been
based either on no evidence or on
materials which are wholly irrelevant
or inadmissible, and
(4) Where the complaint suffers from
fundamental legal defects, such as,
want of sanction, or absence of
complaint
by
legally
competent
authority and the like,
The cases mentioned by us are purely
illustrative and provide sufficient
guide lines to indicate contingencies
where the High Court can quash
proceedings.

8. In L.V. Jadhav vs. Shankararo
Abasaheb Pawar AIR 1983 SC 1219, the
Apex court held that Court's power is
limited only to examine that the process
of law should not be misused to harass a
citizen and for that purpose, the high
Court has no authority or jurisdiction to
go into the matter or examine the
correctness of allegations unless the
allegations are patently absurd and
inherently improbable so that no prudent
person can ever reach to such a
conclusion and that there is sufficient
ground for proceeding against the accused
but the Court, at that state, cannot go into
the truth or falsity of the allegations.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
278
9. Similar view has been reiterated
in the Nagpur Steel and Alloys Pvt. Ltd.
vs. P. Radhakrishna, (1997) SCC (Crl.)
1073.

10. In Trisuns Chemical Industry vs.
Rajesh Agarwal & ors. (1999) 8 SCC 686,
the Supreme Court placed reliance upon
its earlier judgment in Rajesh Bajaj vs.
State N.C.T. of Delhi, AIR 1999 SC 1216
and observed that the inherent power of
the High Court be limited to very extreme
exceptions.

11. In M/s Medchi Chemicals &
Pharma Pvt. Ltd. vs. M/s Biological E.
Ltd. & ors, JT 2000 (2) SC 426, the Apex
Court placed reliance upon its earlier
judgement including

12. Dr. Sharma's Nursing Home vs.
Delhi Administration, (1988) 8 SCC 745,
and held that a criminal prosecution can
be short circuited in rarest of rare cases,
and even in a case of breach of contract,
not only civil remedy is attracted but a
person can be held responsible for
criminal
prosecution
and
under
no
circumstance civil profile can out way the
criminal out fit.

13. In State of Haryana & ors. Vs.
Ch. Bhajan Lal & ors. AIR 1992 SC 604,
the Hon'ble Supreme Court laid down the
guide lines for exercising the inherent
power as under :-

(1) 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.
(2) 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
S. 156(1) of the Code except under an
order of a Magistrate within the purview
of S. 155 (2) of the Code.
(3) 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 as case against the
accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence, no
investigation is permitted by as police
officer without an order of a Magistrate as
contemplated under S. 155 (2) of the
Code.
(5) 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.
(6) 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 the code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.
(7) Where a criminal proceeding is
manifestly attended with malafide 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
personal grudge."

14. The issue of mala fides decided
by the Hon'ble Apex Court in clause (7)
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2 All] Hanumant Kumar Gupta V. State of U.P. and others
279
referred to above has to be read with the
observations made in the same judgment
further where it has been held as under :

"At this stage, when there are only
allegations and recriminations on no
evidence, this Court could not anticipate
the result of the investigation and
rendered a finding on the question of mala
fides on the materials at present available.
Therefore, we are unable to see any force
in the contentions that the complaint
should be thrown over board on the some
unsubstantiated plea of mala fides."

15. In Sheonandan Paswan vs. State
of Bihar, AIR 1987 SC 877, the Hon'ble
Apex Court while dealing with the issue
of mala fides in criminal law observed as
under:

"It is well established proposition of
law that a criminal prosecution, if
otherwise, justifiable and based upon
adequate evidence does not become
vitiated on account of mala fides or
political vendetta of the first informant or
the complainant."

16. Similarly, in State of Bihar vs.
J.A.C. Saldanna AIR 1980 SC 329, the
Apex Court has held as under:

"It must, however, be pointed out
that if an information is lodged at the
police station and an offence is registered,
the mala fide of the informant would be of
secondary importance if the investigation
produced
unimpeachable
evidence
disclosing he offence."

17. In Sarjudas & anr. Vs. State of
Gujrat, 1999 (8) SCC 508 the Hon'ble
Supreme Court held that there must be
cogent evidence of mala fide or malicious
intention
of
the
informant
or
the
complainant for taking note of the
allegations of mala fide. The bald
statement in this respect is not sufficient.

18. Similar points have been
formulated by the apex court in State of
west Bengal vs. Mohammaed Khalid AIR
1995 SC 785.

19. In state of Delhi vs. Gyan Devi
and ors. AIR 2001 SC 40, the Hon'ble
Supreme Court deprecated the practice of
interference in exercise of the power
under sections 228 and 482 Cr.P.C. for
quashing the charges in a matter where no
strong reason could be found and held
that in the interest of justice and in order
to avoid the abuse of process of the Court,
the charges needed to be quashed. The
Apex Court observed as under:

"At the stage of charge the court is to
examine the materials only with a view to
be satisfied that a prima facie case of
commission of offence alleged has made
out against the accused persons. It is also
well settled that when the petition is filed
by the accused under section 482 Cr.P.C.
seeking for the quashing of charge framed
against them the court should not interfere
with the order unless there are strong
reasons to hold that in the interest of
justice and to avoid abuse of the process
of the court a charge framed against the
accused needs to be quashed. Such an
order can be passed only in exceptional
cases and on rare occasions. It is to be
kept in mind that once the trial court has
framed a charge against an accused the
trial must proceed without unnecessary
interference by a superior court and the
entire evidence from the prosecution side
should be placed on record. Any attempt
by an accused for quashing of a charge
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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before the entire prosecution evidence has
come on record should not be entertained
sans exceptional cases."

20. In Minakshi Bala vs. Sudhir
Kumar (1994) 4 SCC 142, the Hon'ble
Apex Court held that once the charge had
been framed under section 240 Cr.P.C.
,the high court, in exercise of its
revisional jurisdiction, is not justified in
invoking its inherent power to quash the
same except in those rare cases where
forensic
exigencies
and
formidable
compulsions justify such a course. Similar
view has been reiterated by the Hon'ble
Supreme Court in State of Madhya
Pradesh vs. S.B. Johan (2000) 2 SCC 57.

21. In Ram Kumar Laharia vs. state
of Madhya Pradesh & Anr. AIR 2001 SC
556, the Supreme Court considered the
scope of exercise of revisional powers and
held that at this stage, the Court is not
permitted
to
weight
the
evidence.
Whatever is permissible in law is that the
court can assess the improbability or
absurdity of the statement of witnesses. In
case the evidence so collected prima facie
suggests direct contact with the accused,
the court cannot interfere with the order
of framing the charge.

22. In Smt. Om Wati & Anr. Vs.
State through Delhi Admn. & Anr. AIR
2001 SC 1507, the Apex Court held that
in exercise of the revisional jurisdiction,
the High Court is not permitted to
interfere at initial stage of framing the
charges
merely
on
hypothesis,
imagination and far-fetched reasons. The
Court observed as under :

"We would again remind the High
Courts of their statutory obligation not
to interfere at initial stage of framing
the
charges
merely
on
hypothesis,
imagination
and
far-fetched
reasons
which, in law, amounts of interdicting the
trial
against
accused
persons.
Unscrupulous
litigants
should
be
discouraged from protracting the trial and
prevent culmination of the criminal cases
by having resort to uncalled for and
unjustified litigation in the cloak of
technicalities of law."

23. Thus, in view of the above, it is
settled legal proposition that the High
Court in exercise of its powers under
Article 226/227 of the Constitution or
Section 482 Cr.P.C. is not permitted
either to weigh the evidence or examine
the adequacy of the evidence for framing
of the charges and if it comes to the
conclusion that there is some prima facie
evidence connecting the accused with the
crime the charge cannot be quashed at this
stage. However, the Court has to examine
that in case the ingredients of the offence
alleged against the accused are absent in
the fact and circumstance of the case and
the trial was noting but an abuse of the
process of the court, the court should not
hesitate in quashing the charges.

24. In Sanju alias Sanjay Singh
Sengar vs. State of Madhya Pradesh &
ors. (2002)5 SCC 371, the Hon'ble Apex
Court quashed the charges for the reason
that the appellant therein had been
charged of the offence of abetment and
after considering the evidence, the Apex
Court recorded the finding that the
ingredients of abetment were totally
absent in the facts and circumstances of
the case. Similarly, in Ram Ekbak Missir
vs. Ram Niwas Pandey & ors. (2002)8
SCC 161, the Hon'ble Supreme Court
quashed the criminal proceedings wherein
the cognizance of the offence was taken
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2 All] Supher Ram V. Additional Director and others
281
after twenty one years of lodging the first
information report and the case had been
dragged for more than two decades
without any fault on the part of the
accused. More so, the Apex Court also
came
to
the
conclusion
that
the
cognizance
had
been
taken
in
a
mechanical manner. It has further been
observed that neither the victim nor the
accused should suffer by the mischief of
the investigating agency or the staff of the
court and such a delay was found to be a
ground for quashing the charges.

25. Thus in view of the above if the
case of the petitioner is examined in the
light of the aforesaid settled legal
proposition, it is evident that the F.I.R.
clearly makes out a case against the
petitioner as it has been alleged by the
respondent no. 4 in the F.I.R. that the
petitioner alongwith others entered into
her house broke open the lock, searched
for the file of litigation and had taken
away large number of articles, including
the ornaments and cash and caused
serious injuries to her husband. The
defence taken by the petitioner cannot be
taken into consideration at this stage.

26. Thus petition is found to be
devoid of ay merit and accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.3.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 20497 of 1998

Supher Ram

...Petitioner
Versus
Additional Director and others

 ...Respondents

Counsel for the Petitioner:
Sri Somesh Khare
Sri Grdhar Nath
Sri Pranay Krishna

Counsel for the Respondents:
Sri M.B. Singh

(a) U.P. Agricultural Produce Market
Committee
(Centralised)
Services
(Amendment) Regulations, 1991, Reg.
24 (1) Transfer- order of legality -
transfer
order
made
in
special
circumstances-
Not
necessary
to
elaborate
special
circumstances-
Authority indicating that transfer made
in interest of administration and in
public interest- impugned transfer order,
held- valid.

Held ( Para 13)

I find that by the impugned transfer
order in question dated 30.5.1988 the
petitioner has been transferred from
Jhansi region to another region of
Mirzapur by Addl. Director, therefore, the
Addl. Director was in power to pass such
order of transfer under Regulation 24(1)
of Regulation, 1991 and in the impugned
order itself it has been mentioned that in
special circumstances, the transfer in
question has been made. It is not
necessary
to
elaborate
the
special
circumstances if the authority himself
has indicated that the transfer has been
made in special circumstances in the