# Heera Lal & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 5 ILRA 2290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Application U/S 482 No. 2700 of 2024
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-lal-anr-v-state-of-u-p-anr-opp-parties-52064
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
Indian Penal Code, 1860 - Sections 323,
504, 506, 390 & 392 - Application u/s 482 -
for quashing the summoning order - issued in a
complaint case to face trial u/s 392, 323, 504,
506 IPC - plea has taken by the applicants that
applicant no. 1 is a retired judicial officer and is
about 87 years old, residing at Kanpur Nagar
and suffering from leukoderma a skin disease, it
is not possible for him to travel up to Banda to
commit such incident - court finds that, opposite
party no. 2 is the son-in-law of the applicant no.
1, - after death of daughter of applicant no. 1
his grandson is residing with him, - a civil
proceedings to obtain custody of child is
pending, - and an application for granting
temporary custody of his son is already been
dismissed by the concern court - these facts did
not disclosed in his complaint - one of the
witnesses in his complaint was not produced as
witness which creates suspicion about the
incident - Moreover, did not immediately seek
police assistance by making a call to police help
line number - he filed moved a complaint to the
SP through registered post after around five
weeks of the incident and filed the complaint u/s
156 (3) around two and half month after the
alleged incident - held, present case is squirely
covered under clause (7) of the judgment of
Bhajan lal Vs St. of Har. and the present
proceedings are manifested with malafide and
are instituted with an ulterior motive due to
private and personal grudge - accordingly, the
present
application
is
allowed
-
entire
proceedings against the applicants is hereby
quashed. (Para - 21, 23, 24, 25)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

## Text

2290 INDIAN LAW REPORTS ALLAHABAD SERIES
the complainant has been accepted by
taking
cognizance
of
the
offences
punishable under Sections 325 and 307
I.P.C. is not sustainable, thus, to that extent,
the impugned order dated 17.8.2023 is set
aside. However, it shall be open for the
complainant/ prosecution as well as the
accused to press their respective claims
before the Special Court, Mathura at the
stage of consideration of the final report
under Section 173(2) Cr.P.C. for framing of
charges.

40. Resultantly, without meaning any
expression of opinion on the merits of the
case, these appeals are partly allowed and
while upholding the impugned order dated
17.8.2023 only to the extent of taking
cognizance of offences contained in police
report under Section 173(2) Cr.P.C., the
remaining part is hereby set aside.
----------
(2024) 5 ILRA 2290
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2024

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Application U/S 482 No. 2700 of 2024

Heera Lal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Imran Ullah, Vineet Vikram

Counsel for the Opp. Parties:
G.A., Rishikesh Tripathi

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
Indian Penal Code, 1860 - Sections 323,
504, 506, 390 & 392 - Application u/s 482 -
for quashing the summoning order - issued in a
complaint case to face trial u/s 392, 323, 504,
506 IPC - plea has taken by the applicants that
applicant no. 1 is a retired judicial officer and is
about 87 years old, residing at Kanpur Nagar
and suffering from leukoderma a skin disease, it
is not possible for him to travel up to Banda to
commit such incident - court finds that, opposite
party no. 2 is the son-in-law of the applicant no.
1, - after death of daughter of applicant no. 1
his grandson is residing with him, - a civil
proceedings to obtain custody of child is
pending, - and an application for granting
temporary custody of his son is already been
dismissed by the concern court - these facts did
not disclosed in his complaint - one of the
witnesses in his complaint was not produced as
witness which creates suspicion about the
incident - Moreover, did not immediately seek
police assistance by making a call to police help
line number - he filed moved a complaint to the
SP through registered post after around five
weeks of the incident and filed the complaint u/s
156 (3) around two and half month after the
alleged incident - held, present case is squirely
covered under clause (7) of the judgment of
Bhajan lal Vs St. of Har. and the present
proceedings are manifested with malafide and
are instituted with an ulterior motive due to
private and personal grudge - accordingly, the
present
application
is
allowed
-
entire
proceedings against the applicants is hereby
quashed. (Para - 21, 23, 24, 25)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

1. Pramod Suryabhan pawar Vs St. of Mah. &
anr. (2019 vol 9 SCC 608),

2. Mohammad Wajid & anr. Vs St. of up &
ors.(2023 SCC Online SC 951),

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

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Heard learned counsel for the
applicants, learned Additional Government
Advocate for the State.
5 All. Heera Lal & Anr. Vs. State of U.P. & Anr.
2291

2. Present application under Section
482 Cr.P.C. has been filed to set aside the
impugned order dated 21.7.2023 in Special
Criminal Case No. 108 of 2022 passed by
the Additional District and Sessions
Judge/Special Judge (Dacoit Affected
Area), Banda, whereby the applicants have
been summoned to face trial under Section
392, 323, 504 and 506 I.P.C. It is also
prayed to stay further proceeding of the
aforesaid case during pendency of present
application.

3. The case of the complainant as set
out in this complaint is that:-

3.1. That the marriage of the first
informant was solemnized in 2005 with the
daughter of applicant no. 1. Out of this
wedlock, one son namely Harshit was born.
The son is residing with the applicants after
the death of his mother.

3.2. The first informant is
working
as
a
professor/doctor
in
Government Hospital, Banda.

3.3. The applicants are keeping
Harshit with them without any authority
and have fetched thousands of rupees from
the first informant.

3.4. On 9.3.2022, at around 3:40
P.M., applicant no. 1 armed with a rifle,
applicant no. 2 carrying a hockey stick
along
with
3-4
unknown
persons
possessing lathi, danda in their hands,
arrived at the house of opposite party no. 2.

3.5. Applicant no. 1 made a
demand of Rs. 10 lacs for the education and
welfare of Harshit.
 3.6. When opposite party No. 2
expressed inability to give such money,
applicant no.1 became furious. He exhorted
other persons to kill him. The complainant
was badly beaten up by all persons with
kicks, fists, lathi danda and butt of the rifle.

3.7. Applicant No. 2 snatched
gold chain worth Rs. 1,00,000/- and
applicant no. 1 took Rs. 50,000/- cash from
the drawer. When opposite party No. 2
raised alarm, witnesses Hub Lal and Asha
came there. When they challenged the
applicants,
the
applicants
ran
away
threatening the complainant with life.

4. The application under Section
156(3) Cr.P.C. was treated as complaint.
The statement of complainant was recorded
under Section 200 Cr.P.C. The statements
of the witnesses such as PW-1 Hub Lal and
PW-2 Pavitri Devi were recorded under
Section 202 Cr.P.C.

5. The learned Special Judge (DAA),
Banda, vide summoning order dated
21.07.2023 summoned the applicants to
face trial under Sections 392, 323, 504, and
506 I.P.C.

6. Mr. Imran Ullah, learned counsel
for the applicants submitted that applicant
no. 1 is a senior citizen aged 87 years. He is
a retired Judicial Officer. He retired as
Additional District and Sessions Judge in
2004. Opposite party no. 2 is son-in-law of
applicant no. 1. Applicant no. 2 is son of
applicant no. 1.

7. It is submitted by learned counsel
that the applicants are residing in District
Kanpur Nagar. It is not possible for
applicant no. 1, who is 78 years old to
travel up to Banda to commit such
incident. He is bracketed an accused by
his son-in-law. Opposite party no. 2
instituted proceedings against applicant
no.1 to obtain custody of Harshit. The
same proceedings are still pending. The
interim application of the first informant
had been dismissed.
2292 INDIAN LAW REPORTS ALLAHABAD SERIES

8. It is vehementally argued by the
learned counsel for the applicants that date
of occurrence, as alleged in the complaint,
is 09.03.2022. whereas, the medical
examination was allegedly conducted on
12.03.2022. Opposite party No. 2 was
posted in the same district hospital at
Banda. Therefore, it is highly improbable
that one person who is a doctor in the same
hospital is not examined at the first
opportunity. It is also submitted that
application to S.S.P. was given on
16.04.2022, i.e. one month after the date of
alleged incident. The complaint has been
filed after two and half month from the date
of occurrence. These facts demonstrate that
the entire proceedings have been initiated
as a counter blast on the basis of concocted
facts and forged medical report.

9. It is further submitted that the
applicant had no reason to go to Banda to
demand money for the welfare and
education of Harshit. Harshit is happily
residing with applicants. The applicant
No.1 is suffering with skin disease
Leukoderma, and his medical prescriptions
are brought on record which indicate that he
is continuously on medicine. Due to old age
complications, he is unable to walk without
any support/assistance.

10. It is also submitted that opposite
party no. 2 has performed second marriage
after the demise of the daughter of applicant
no. 1. Opposite party no. 2 had moved an
application for temporary custody of
Harshit for 20 days during his summer
vacation. The said application was rejected
by the Court.

11. It is further submitted that
complaint has also been filed against three
unknown persons and allegation of maarpeet committed by them is also made.
During his statement under Section 200
Cr.P.C., opposite party no. 2 stated that he
fell down on floor and sustained injuries. It
is submitted that medical examination was
conducted after three days of the alleged
occurrence and no plausible explanation is
offered by the complainant for such
inordinate delay. No application to any
Superior Authority was given immediately
after the alleged incident. He did not make
any call to 112 Police Help Line. Names of
the unknown persons were not disclosed in
primary evidence. The entire story narrated
in the complaint is fabricated, unbelievable,
and concocted.

12. It is vehemently argued that
witness Pavitri Devi is not named as
witness in the complaint while the named
witness Asha is not produced by the
applicant to support the version of the
complaint. It is submitted that on the basis
of the allegation and evidence available on
record, no offence under Sections 392, 323,
504, and 506 I.P.C. is made out against the
applicants.

13. Per contra, learned counsel for
opposite party no. 2 vehemently opposed the
prayer made by learned counsel for the
applicant. He submitted that since opposite
party no. 2 sustained six injuries, including
fracture in his wrist, therefore the incident
cannot be considered to be false. When the
complainant refused to meet the demands of
the applicants, they beat him up with lathi
danda and butt of the rifle. Upon exortation
by applicant no.1, applicant no. 2 snatched
gold chain from the first informant and
applicant no. 1 took Rs. 50,000 from the
drawer. Therefore, prima facie, offence under
Sections 392, 504, 506 I.P.C. is made out.

14. It is further submitted that all the
arguments advanced by the learned counsel
5 All. Heera Lal & Anr. Vs. State of U.P. & Anr.
2293
for the applicants are to be examined at the
time of trial. It is also submitted that
proceedings pending about the custody of
the child in Kanpur District Court are civil
proceedings, therefore, it cannot be said
that opposite party no. 2 instituted the
present proceedings as a counter blast.

15. Perused the record.

16. The Hon'ble Supreme Court in
Pramod Suryabhan Pawar VS State of
Maharashtra and another, (2019) 9 SCC
608 has considered the principles, scope,
and ambit of the powers of the Court under
Section 482 Cr.P.C. and held that:

"6. Section 482 is an overriding
section which saves the inherent powers of
the court to advance the cause of justice.
Under Section 482 the inherent jurisdiction
of the court can be exercised (i) to give
effect to an order under CrPC; (ii) to
prevent the abuse of the process of the
court; and (iii) to otherwise secure the ends
of justice. The powers of the court under
Section 482 are wide and the court is vested
with a significant amount of discretion to
decide whether or not to exercise them. The
court should be guarded in the use of its
extraordinary jurisdiction to quash an FIR
or criminal proceeding as it denies the
prosecution the opportunity to establish its
case through investigation and evidence.
These principles have been consistently
followed and reiterated by this Court. In
Inder Mohan Goswami v. State of
Uttaranchal [Inder Mohan Goswami v.
State of Uttaranchal, (2007) 12 SCC 1 :
(2008) 1 SCC (Cri) 259] , this Court
observed : (SCC p. 10, paras 23-24):

"23. This Court in a number of
cases has laid down the scope and ambit of
courts' powers under Section 482 CrPC.
Every High Court has inherent powers to
act ex debito justitiae to do real and
substantial justice, for the administration of
which alone it exists, or to prevent abuse of
the process of the court. Inherent power
under Section 482 CrPC can be exercised:

(i) to give effect to an order under
the Code;

(ii) to prevent abuse of the
process of the court, and
 (iii) to otherwise secure the ends
of justice.

24.
Inherent
powers
under
Section 482 CrPC though wide have to be
exercised sparingly, carefully and with
great caution and only when exercise is
justified by the tests specifically laid down
in this section itself. Authority of the court
exists for the advancement of justice. If any
abuse of the process leading to injustice is
brought to the notice of the court, then the
court would be justified in preventing
injustice by invoking inherent powers in
absence of specific provisions in the
statute."

7. Given the varied nature of
cases that come before the High Courts,
any strict test as to when the court's
extraordinary powers can be exercised is
likely to tie the court's hands in the face of
future injustices. This Court in State of
Haryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426] conducted a detailed study of
the situations where the court may exercise its
extraordinary jurisdiction and laid down a
list of illustrative examples of where quashing
may be appropriate. It is not necessary to
discuss all the examples, but a few bear
relevance to the present case. The Court in
Bhajan Lal [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] noted that quashing may be appropriate
where: (SCC pp. 378-79, para 102)

"102.
...
(1)
Where
the
allegations made in the first information
2294 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2).

***

(7) 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."

8. In deciding whether to exercise
its jurisdiction under Section 482, the Court
does not adjudicate upon the veracity of the
facts alleged or enter into an appreciation
of competing evidence presented. The
limited question is whether on the face of
the FIR, the allegations constitute a
cognizable offence. As this Court noted in
Dhruvaram Murlidhar Sonar v. State of
Maharashtra
[Dhruvaram
Murlidhar
Sonar v. State of Maharashtra, (2019) 18
SCC 191 : 2018 SCC OnLine SC 3100],
(Dhruvaram Sonar) : (SCC para 13)

"13. It is clear that for quashing
the proceedings, meticulous analysis of
factum of taking cognizance of an offence
by the Magistrate is not called for.
Appreciation of evidence is also not
permissible in exercise of inherent powers.
If the allegations set out in the complaint do
not constitute the offence of which
cognizance has been taken, it is open to the
High Court to quash the same in exercise of
its inherent powers."

17. In the case of Mohammad Wajid
and Another Vs. State of U.P. and Others,
reported in 2023 SCC OnLine SC 951, the
Hon'ble Apex Court observes that:-

"34. At this stage, we would like
to observe something important. Whenever
an accused comes before the Court
invoking either the inherent powers under
Section 482 of
the Code
of
Criminal
Procedure
(CrPC) or
extraordinary
jurisdiction
under
Article 226 of
the Constitution to 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
Section 482 of
the CrPC or
Article 226 of
5 All. Heera Lal & Anr. Vs. State of U.P. & Anr.
2295
the Constitution need 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......"

35. In State
of
Andhra
Pradesh v. Golconda Linga Swamy, (2004)
6 SCC 522, a two-Judge Bench of this
Court elaborated on the types of materials
the High Court can assess to quash an FIR.
The Court drew a fine distinction between
consideration of materials that were
tendered as evidence and appreciation of
such evidence. Only such material that
manifestly fails to prove the accusation in
the FIR can be considered for quashing an
FIR. The Court held:-

"5. ...Authority of the court exists
for advancement of justice and if any
attempt is made to abuse that authority so
as to produce injustice, the court has power
to prevent such abuse. It would be an abuse
of the process of the court to allow any
action which would result in injustice and
prevent promotion of justice. In exercise of
the powers court would be justified to
quash any proceeding if it finds that
initiation or continuance of it amounts to
abuse of the process of court or quashing of
these proceedings would otherwise serve
the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged
and whether any offence is made out even if
the allegations are accepted in toto."

6.
In R.P.
Kapur v. State
of
Punjab, AIR 1960 SC 866 : 1960 Cri LJ
1239,
this
Court
summarised
some
categories of cases where inherent power
can and should be exercised to quash the
proceedings : (AIR p. 869, para 6)

(i) where it manifestly appears
that there is a legal bar against the
institution or continuance e.g. want of
sanction;

(ii) where the allegations in the
first information report or complaint taken
at its face value and accepted in their
entirety do not constitute the offence
alleged;

(iii) where
the
allegations
constitute an offence, but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charge.
 7. In dealing with the last
category, it is important to bear in mind the
distinction between a case where there is no
legal evidence or where there is evidence
which is clearly inconsistent with the
accusations made, and a case where there
is legal evidence which, on appreciation,
may or may not support the accusations.
When exercising jurisdiction under Section
482 of the Code, the High 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 the function of the trial Judge. 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. At the same time the
section is not an instrument handed over to
an accused to short-circuit a prosecution
and bring about its sudden death....."

18. Perusal of record goes to show that
the complaint was filed against the
2296 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants alongwith 3 unknown persons. It
has been alleged that the applicants along
with 3 unknown persons had beaten up
opposite party no. 2 with lathi danda and
butt of the rifle. Participation of unknown
persons is not substantiated during the
statements adduced as primary evidence.
Besides this, their names and identification
was also not disclosed by the complainant
and his witnesses. Therefore, it appears to
be unbelievable that all the injuries,
sustained by opposite party no. 2, were
caused by applicant no. 2 only.

19. Section 390 I.P.C. provides thus:

390. Robbery.-

"In all robbery there is either
theft or extortion.When theft is robbery.-
Theft is "robbery" if, in order to the
committing of the theft, or in committing the
theft, or in carrying away or attempting to
carry away property obtained by the theft,
the offender, for that end, voluntarily
causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear
of instant death or of instant hurt, or of
instant wrongful restraint.When extortion is
robbery.- Extortion is "robbery" if the
offender, at the time of committing the extortion,
is in the presence of the person put in fear, and
commits the extortion by putting that person in
fear of instant death, of instant hurt, or of instant
wrongful restraint to that person or to some
other person, and, by so putting in fear, induces
the person so put in fear then and there to
deliver up the thing extorted."

20. In the case of Mohammad Wajid
and Another Vs. State of U.P. and Others
(supra), the Hon'ble Apex Court observes
that:

"15. Theft amounts to 'robbery'
if, in order to the committing of the theft, or
in committing the theft, or in carrying away
or attempting to carry away property
obtained by the theft, the offender for that
end, voluntarily causes or attempts to cause
to any person death or hurt or wrongful
restraint, or fear of instant death or of
instant hurt, or of instant wrongful
restraint. Before theft can amount to
'robbery',
the
offender
must
have
voluntarily caused or attempted to cause to
any person death or hurt or wrongful
restraint, or fear of instant death or of
instant hurt, or of instant wrongful
restraint. The second necessary ingredient
is that this must be in order to the
committing of the theft, or in committing the
theft, or in carrying away or attempting to
carry away property obtained by the theft.
The third necessary ingredient is that the
offender must voluntarily cause or attempt
to cause to any person hurt etc., for that
end, that is, in order to the committing of
the theft or for the purpose of committing
theft or for carrying away or attempting to
carry away property obtained by the theft.
It is not sufficient that in the transaction of
committing theft, hurt, etc., had been
caused. If hurt, etc., is caused at the time of
the commission of the theft but for an object
other than the one referred to in
Section 390, IPC, theft would not amount to
robbery. It is also not sufficient that hurt
had been caused in the course of the same
transaction as commission of the theft.
 16. The
three
ingredients
mentioned
in
Section 390, IPC,
must
always be satisfied before theft can amount
to robbery, and this has been explained
in Bishambhar Nath v. Emperor, AIR 1941
Oudh 476, in the following words:-

"The words "for that end" in sec.
390 clearly mean that the hurt caused by
the offender must be with the express object
of facilitating the committing of the theft, or
must be caused while the offender is
5 All. Heera Lal & Anr. Vs. State of U.P. & Anr.
2297
committing the theft or is carrying away or
is attempting to carry away the property
obtained by theft. It does not mean that the
assault or the hurt must be caused in the
same
transaction
or
in
the
same
circumstances."

17. In Karuppa
Gounden v. Emperor, AIR 1918 Mad 821,
which
followed
two
Calcutta
cases
of Otaruddi
Manjhi v. Kafiluddi
Manjhi, (1900-01) 5 CWN 372, and King
Emperor v. Mathura Thakur, (1901-02) 6
CWN 72, it has been observed at page 824
as follows:-

"Now it is our duty to give effect
to the words "for that end". It would have
been open to the legislature to have used
other words which would not raise the
difficulty that arises here. The Public
Prosecutor has been forced to argue that
"for that end" must be read as meaning 'in
those circumstances'. In my opinion we
cannot do that in construing a section in
the Penal Code. Undoubtedly, words 'in
those circumstances' would widen the
application of the section and we are not
permitted to do that. The matter has been
considered in two judgments of the
Calcutta High Court one of which is
reported as Otaruddi Manjhi v. Kafiluddi
Manjhi (1900-01) 5 CWN 372. Their
Lordships put the question in this way:

"It seems to us that the whole
question turns upon the words "for that
end". Was any hurt or fear of instant hurt,
that was caused in the present case, caused
for the end of the commission of the theft?
We think not. It seems to us that whatever
violence was used for the purpose of
dispossessing the persons who were
already in possession of the premises in
question and had no relation to the
commission of theft, although theft was
committed at the same time."

18. Ordinarily, if violence or hurt
is caused at the time of theft, it would be
reasonable to infer that violence or hurt
was caused for facilitating the commission
of the theft or for facilitating the carrying
away of the property stolen or for
facilitating the attempt to do so. But there
may be something in the evidence to
indicate that hurt or violence was caused
not for this purpose but for a different
purpose......"

****

28. Section 504 of
the IPC contemplates
intentionally
insulting a person and thereby provoking
such person insulted to breach the peace or
intentionally insulting a person knowing it
to be likely that the person insulted may be
provoked so as to cause a breach of the
public peace or to commit any other
offence. Mere abuse may not come within
the purview of the section. But, the words of
abuse in a particular case might amount to
an intentional insult provoking the person
insulted to commit a breach of the public
peace or to commit any other offence. If
abusive language is used intentionally and
is of such a nature as would in the ordinary
course of events lead the person insulted to
break the peace or to commit an offence
under the law, the case is not taken away
from the purview of the Section merely
because the insulted person did not actually
break the peace or commit any offence
having exercised selfcontrol or having been
subjected to abject terror by the offender.
In judging whether particular abusive
language is attracted by Section 504, IPC,
the court has to find out what, in the
ordinary circumstances, would be the effect
of the abusive language used and not what
the complainant actually did as a result of
his
peculiar
idiosyncrasy
or
cool
temperament or sense of discipline. It is the
ordinary general nature of the abusive
2298 INDIAN LAW REPORTS ALLAHABAD SERIES
language that is the test for considering
whether the abusive language is an
intentional insult likely to provoke the
person insulted to commit a breach of the
peace and not the particular conduct or
temperament of the complainant.

29. Mere
abuse,
discourtesy,
rudeness or insolence, may not amount to
an intentional insult within the meaning of
Section 504, IPC if it does not have the
necessary element of being likely to incite
the person insulted to commit a breach of
the peace of an offence and the other
element of the accused intending to provoke
the person insulted to commit a breach of
the peace or knowing that the person
insulted is likely to commit a breach of the
peace. Each case of abusive language shall
have to be decided in the light of the facts
and circumstances of that case and there
cannot be a general proposition that no one
commits
an
offence
under
Section 504, IPC if he merely uses abusive
language against the complainant. In King
Emperor v. Chunnibhai Dayabhai, (1902)
4 Bom LR 78, a Division Bench of the
Bombay High Court pointed out that:-

"To constitute an offence under
Section 504, I.P.C. it is sufficient if the
insult is of a kind calculated to cause the
other party to lose his temper and say or do
something violent. Public peace can be
broken by angry words as well as deeds."

30. A
bare
perusal
of
Section 506 of the IPC makes it clear that a
part of it relates to criminal intimidation.
Before an offence of criminal intimidation
is made out, it must be established that the
accused had an intention to cause alarm to
the complainant."

21. Admittedly, opposite party no.
2 is the son-in-law of applicant no. 1. The
daughter of applicant no. 1 has passed
away. The grandson of applicant no. 1 is
residing with him after her death. Opposite
party no. 2 has instituted civil proceedings
in Kanpur Nagar to obtain custody of his
son. The application for granting temporary
custody of Harshit has already been
dismissed by the concerned Court. The first
informant did not disclose these facts in his
complaint.

22. Pertinent to mention here that the
first informant name Asha as one of the
witnesses in his complaint. She was not
produced under Section 202 Cr.P.C. as
witness. PW-2 Pavitri Devi, instead, was
produced as witness. This fact creates
suspicion about the incident.

23. It is worthy to note that applicant
no. 1 is aged 87 years old. He is suffering
with "Leukoderma", a skin disease. Besides
this, several documents relating to his
treatment
are
brought
on
record.
Considering the age and health condition of
applicant no. 1, it seems unbelievable that
he could travel from Kanpur Nagar to
Banda along with his rifle and to commit
alleged incident.

24. It is also taken into consideration
that opposite party No. 2 was working as
Assistant Professor/Doctor at District
Hospital, Banda in which he was medically
examined on 12.3.2022. The date of
occurrence is mentioned in the complaint
filed by opposite party no. 2 as 9.3.2022. It
is highly improbable that a doctor who is
posted in the same hospital, was examined
after three days of the incident. Moreover,
opposite party no. 2 did not immediately
seek police assistance by making a call to
police
help
line
number
112. The
complainant moved an application to S.P
Hamirpur through registered post on
16.04.2022 i.e. after around five weeks of
the incident. The complaint is filed by him
5 All. Shabban Khan & Ors. Vs. The State of U.P. & Anr.
2299
on 28.5.2022 i.e. around two and half
month after the alleged incident. Opposite
party no. 2 did not offer any plausible
explanation for such inordinate delay.

25. On the basis of the facts and
circumstances of the case, the present case
is squarely covered under clause (7) of the
judgement Bhajan Lal vs. State of
Haryana (supra). In view of the foregoing
discussion, the Court is of the view that
present proceedings are manifested with
malafide and are instituted with an ulterior
motive due to private and personal grudge.
Therefore, the application deserved to be
allowed.

26.

Accordingly,
the
present
application U/s 482 is allowed.

27. The entire proceedings against the
applicants in aforesaid case is hereby
quashed.
----------
(2024) 5 ILRA 2299
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482 No. 36921 of 2018

Shabban Khan & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Mukhtar Alam, Saquib Mukhtar

Counsel for the Respondents:
G.A., Pankaj Satsangi

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 212, 213 & 482 -
Indian Penal Code, 1860 - Sections - 323,
506 & 498-A - The Dowry Prohibition Act,
1961 - Sections - 3 & 4 - Application on
behalf of the Sisters-in-law & Brother-in-law -
for quashing the entire criminal proceeding -
FIR - as per prosecution case, allegations are
that, after marriage, when the informant come
to her matrimonial home, accused persons are
taunted her for brining less dowry and further
demanded more dowry - court finds that, the
law
contemplates
demand
of
dowry
as
punishable, however, the taunting for giving less
gifts by itself is not a penal offence - more so,
the demand alleged to have been made against
the accused persons are general and wholly
vague in nature - the date, time and manner in
which the demand was made is also not been
St.d in prosecution case - in terms of section 498A IPC the cruelty would be any wilful conduct which
is of such a nature as is likely to drive the woman
to commit suicide or to cause grave injury or
danger to life, limb or health of the woman are also
not shown by the prosecution - even during
investigation no specific role has been assigned to
the applicants - held, criminal proceedings against
applicants are absurd and improbable that no
prudent mind can arrived at conclusion for
proceedings against applicants in view of the
vague allegations - hence, entire proceedings is
hereby
set-aside
-
present
application
is
accordingly partly allowed.
(Para - 23, 31, 32, 33, 34)

Application u/s 482 partly Allowed. (E-11)

List of Cases cited:

1. Kahkashan Kausar Vs St. of Bihar (2022 6 SCC
599),

2. Achin Gupta Vs St. of Har. (2024 INSC 369),

3. Neelu Chopra Vs Bharti (2009 10 SCC 184),

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

5. SMS Pharmaceuticals Ltd. Vs Neeta Bhalla
(2005 8 SCC 89).

(Delivered by Hon'ble Vikram D.
Chauhan, J.)