# Idrish & Ors v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-29
- **Case number:** Application U/S 482 No. 599 of 2012
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/idrish-ors-v-state-of-u-p-anr-45509
- **Pages:** 5

## Headnote

Law-Code
of
Criminal
Procedure,1973- Section 482- When earlier
application u/s 482 Cr.Pc was rejected while
granting an opportunity for moving a Discharge
Application before Trial court at appropriate
stage, means there was no ground for any
indulgence,
under
exercise
of
inherent
jurisdiction, u/s 482 of Cr.P.C.
Once relief for quashing of the chargesheet as
well as entire proceeding was declined by the
High Court in the previous Criminal Application,
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
then at the time of framing of charge, while
dismissing Discharge Application, pre trial
acquittal is not permissible.

B. Criminal Law - Code of Criminal
Procedure,1973- Section 240 - At the
time of framing of charge as well as
disposal of Discharge Application, hair
splitting analysis of evidence and fact is
not needed.

Only the existence of a prima facie case is
required to be seen at the time of framing the
charge and Charge can even be framed on the
basis of strong suspicion.

C.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 482- This Court,
in exercise of inherent power, u/s 482 of
Cr.P.C., is not expected to embark upon factual
matrix because it may prejudice fair trial and it
is not under the domain of this Court as held
by the Hon'ble Supreme Court.

D.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 239, Section
245 (2)- Application for discharge moved, u/s
245 (2) of Cr.P.C, which is under Chapter XV of
Cr.Pc, 1973, i.e., pertaining to complaint cases,
whereas present case is a State case hence
Application for discharge ought to have been
rejected.

Application for Discharge in a warrant case
case can only be filed under section 239 of the
Cr.Pc and not under section 245 (2) Cr.Pc
which provides for discharge in Complaint
Cases. Hence, discharge application filed u/s
245 (2) Cr.Pc was not maintainable in the
present case. ( Para 9,10,11,12,14,15)

Criminal application rejected.

Case law discussed:-

## Text

2 All. Idrish & Ors. Vs. State of U.P. & Anr.
1449
cases:- (i) R. P. Kapoor Vs. State of
Punjab, AIR 1960 S.C. 866, (ii) State of
Haryana Vs. Bhajanlal, 1992 SCC(Crl)
426, (iii) State of Bihar Vs. P. P. Sharma,
1992 SCC (Crl) 192.

8. From the aforesaid decisions the
Apex Court has settled the legal position
for quashing of the proceedings at the
initial stage. The test to be applied by the
court
is
to
whether
uncontroverted
allegation as made prima facie establishes
the offence and the chances of ultimate
conviction is bleak and no useful purpose
is likely to be served by allowing criminal
proceedings to be continue. In S. W.
Palanattkar & others Vs. State of Bihar,
2002(44) ACC 168, it has been held by the
Hon'ble Apex Court, that quashing of the
criminal proceedings is an exception than
a rule. The inherent powers of the High
Court under Section 482 Cr.P.C. itself
envisages three circumstances under which
the
inherent
jurisdiction
may
be
exercised:-(i) to give effect an order under
the Code; (ii) to prevent abuse of the
process of the court; (iii) to otherwise
secure the ends of justice. The power of
High Court is very wide but should be
exercised very cautiously to do real and
substantial justice for which the court
alone exists.

9. The High Court would not embark
upon an inquiry as it is the function of the
Trial Judge/Court. The interference at the
threshold of quashing of the criminal
proceedings in case in hand cannot be said
to be exceptional as it discloses prima
facie commission of an offence. In the
result,
the
prayer
for
quashing
of
proceeding is refused. There is no merit in
this application filed under Section 482
Cr.P.C., thus the same is accordingly
dismissed. The applicants have ample
opportunity to raise all the objections at
the appropriate stage.

10. However, the applicants are
directed to appear and surrender before the
court below and apply for bail within a
period of thirty days from today, the
prayer for bail shall be considered
expeditiously in accordance with law after
hearing the Public Prosecutor.

11. In case the applicants fail to
surrender within the stipulated period the
court below shall take appropriate action
against him.
----------
(2020)02ILR A1449

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 599 of 2012

Idrish & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Satyam Narayan, Sri Adil Jamal, Sri
Apurva Hajela

Counsel for the Opposite Parties:
A.G.A., Sri S.P. Mishra, Sri V.K. Jaiswal

A.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 482- When earlier
application u/s 482 Cr.Pc was rejected while
granting an opportunity for moving a Discharge
Application before Trial court at appropriate
stage, means there was no ground for any
indulgence,
under
exercise
of
inherent
jurisdiction, u/s 482 of Cr.P.C.
Once relief for quashing of the chargesheet as
well as entire proceeding was declined by the
High Court in the previous Criminal Application,
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
then at the time of framing of charge, while
dismissing Discharge Application, pre trial
acquittal is not permissible.

B. Criminal Law - Code of Criminal
Procedure,1973- Section 240 - At the
time of framing of charge as well as
disposal of Discharge Application, hair
splitting analysis of evidence and fact is
not needed.

Only the existence of a prima facie case is
required to be seen at the time of framing the
charge and Charge can even be framed on the
basis of strong suspicion.

C.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 482- This Court,
in exercise of inherent power, u/s 482 of
Cr.P.C., is not expected to embark upon factual
matrix because it may prejudice fair trial and it
is not under the domain of this Court as held
by the Hon'ble Supreme Court.

D.
Criminal
Law-Code
of
Criminal
Procedure,1973 - Section 239, Section
245 (2)- Application for discharge moved, u/s
245 (2) of Cr.P.C, which is under Chapter XV of
Cr.Pc, 1973, i.e., pertaining to complaint cases,
whereas present case is a State case hence
Application for discharge ought to have been
rejected.

Application for Discharge in a warrant case
case can only be filed under section 239 of the
Cr.Pc and not under section 245 (2) Cr.Pc
which provides for discharge in Complaint
Cases. Hence, discharge application filed u/s
245 (2) Cr.Pc was not maintainable in the
present case. ( Para 9,10,11,12,14,15)

Criminal application rejected.

Case law discussed:-

1. Palwinder Singh Vs. Balwinder Singh & ors.,
(2008) 14 SCC 504

2. St. of A.P Vs. Gaurishetty Mahesh, JT (2010)
6 SC 588

3. Hamida Vs. Rashid, (2008) 1 SCC 474
4. Monica Kumar Vs. St. of U.P (2008) 8 SCC
781

5. Popular Muthiah Vs. St., Re. by Insp. of
Police, (2006) 7 SCC 296

6. Dhanlakshmi Vs. R.Prasana Kumar, (1990)
Cr LJ 320 (DB), AIR (1990) SC 494

7. St. of Bih. Vs. Murad Ali Khan, (1989) Cr LJ
1005: AIR (1989) SC 1

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Application, under Section
482 of Code of Criminal Procedure,
1973 (Hereinafter in short referred to
as 'Cr.P.C.), has been filed by the
Applicants, Idrish, Son of Sadik,
Amna, Wife of Safakat, Haseena, Wife
of Haseen, and Irfan, Son of Taushif,
against State of U.P. and Majid Ali,
with
a
prayer
for
setting
aside
impugned order, whereby, application
moved for discharge was rejected by
the Trial court, in Case No.361 of
2011, under Sections 420, 467, 468 and
471 of Indian Penal Code (Hereinafter
in short referred to as 'IPC'), Police
Station-Garh
Mukteshwar,
District
Ghaziabad, pending in the court of
Civil Judge (Junior Division)/Judicial
Magistrate, Ghaziabad.

2. Learned counsel for applicants
argued that applicant no.1, Idrish, is no
more. Counter affidavit, filed by
Opposite party no.2, is a defective
counter because it has been written at
Page No. 3 of the affidavit that the
deponent
is
Opposite
party
no.2,
whereas, deponent is not Opposite
party no.2, as Opposite party no.2 is
Majid Ali and he has not filed his
counter affidavit. Hence, this counter
2 All. Idrish & Ors. Vs. State of U.P. & Anr.
1451
affidavit
may
not
be
taken
into
consideration.

3. A case crime number was got
registered upon report of Idrish, present
Applicant No.1, against Opposite party
no.2 and others for kidnapping and getting
deed regarding his land executed on the
basis of fraud and fabrication, wherein,
investigation had resulted in submission of
chargesheet. Name of Smt. Bhuriya, who
is wife of Idrish, was got mutated in the
revue record, but, upon protest and
investigation of Idrish, same was got
deleted. Idrish was rightful owner of the
property in question and he had executed
alienation deed in favour of vendee, duly
witnessed by Amna and Haseen, i.e., there
is no commission of offence against any of
the applicants. This accusation was under
abuse of process of law for which a
proceeding, under Section 482 of Cr.P.C.,
being Application U/S 482 No.8416 of
2011, Idrish and others vs. State of U.P.
and another, was filed, wherein, vide
order, dated 16.3.2011, an opportunity for
filing of Discharge Application, before the
Trial court, was given and for availing this
opportunity, an application for discharge
was moved before the Trial court, but,
Trial court, in utter abuse of process of
law, rejected same. Hence, for avoiding
abuse of process of law, this Application,
under Section 482 of Cr.P.C., has been
filed, with above prayer.

4. Learned counsel, appearing for
Opposite party no.2, has vehemently
opposed
this
Application
with
this
contention that the sale deed was obtained
by Opposite party no.2 from Smt. Bhuriya.
She was owner of the property in question.
She had executed sale deed for a valid
consideration and it was a registered
document. Hence, informant, Opposite
party no.2 was bonafide purchaser of the
land in question and he was real owner of
the same. Even after having knowledge of
this fact, Idrish, got executed subsequent
sale deed in favour of accused persons and
it was witnessed by other accused persons.
This was a fraud and fabrication by
accused persons for which this case crime
number
was
got
registered
and
investigation resulted in submission of
chargesheet, wherein, cognizance was
taken.

5. A proceeding, under Section 482
of Cr.P.C., being Application U/S 482 No.
8416 of 2011, was filed with the prayer for
setting aside entire proceeding, including,
chargesheet, but this prayer was not
accepeted by the Court, rather, an
opportunity to file Discharge Application
was granted and once relief, prayed for
quashing of the chargesheet as well as
entire proceeding, was declined, then, at
the time of framing of charge, while
dismissing Discharge Application, pre trial
acquittal is not permissible. Hence, Trial
court has rightly rejected Application,
thus, this Application be dismissed.

6. Learned AGA, representing State
of U.P., has also opposed this Application.

7. Having heard learned counsel for
both parties and gone through materials
placed on record, it is apparent that fact of
death of Idrish is yet to be brought in the
proceeding in trial that too for getting this
fact verified as per Circulars of this Court,
issued on administrative side, by way of
recording statements of Police personnel,
who executed process as well as of near
relatives of the deceased. Hence, for
disposal of present Application, above fact
is of no relevance. However, it may be
raised before the Trial court, where,
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate
abatement
order,
while
observing, appropriate procedure, will be
passed.

8. So far as counter affidavit and
averment made by the deponent is
concerned, it may be mentioned that
nowhere it has been mentioned that
deponent is Opposite Party No.2. Hence,
this very argument of learned counsel for
applicants, on this very score, is against
fact on record.

9. This Court, while disposing of
Application U/S 482 No.8416 of 2011, has
not granted reliefs, as payed for, on the
ground of abuse of process of law, except
an opportunity for moving a Discharge
Application
before
Trial
court
at
appropriate
stage,
while
considering
contentions raised by the applicants before
the Court. Meaning thereby, there was no
ground for any indulgence, under exercise
of inherent jurisdiction, under Section 482
of Cr.P.C., as is being argued before this
Court.

10. Admittedly, a civil suit is pending
and the matter in question is pending
before Civil court. Unless registered sale
deed as well as registered power of
attorney is being declared void ab-initio or
is being cancelled by the competent court
in above civil proceeding, the same exists
and it was under the knowledge of Idrish,
while executing subsequent sale deed, but,
nowhere this was mentioned in the sale
deed that there is previous sale deed,
executed for the same land, and there is a
civil suit pending for its cancellation.
Hence, apparently, prima facie, there was
sufficient ground for framing of charge. As
was held by the Trial court pre acquittal
trial is not permissible and at the time of
framing of charge as well as disposal of
Discharge
Application,
hair
splitting
analysis of evidence and fact is not
needed. Charge can even be framed on the
basis of strong suspicion as has been held
by the Apex Court, in the case of
Palwinder Singh vs. Balwinder Sing and
others, reported in (2008) 14 Supreme
Court Cases 504.

I1. In present case, this Court, too, in
disposal of a proceeding, under Section
482 of Cr.P.C., has not given relief, prayed
for. Meaning thereby, there was no ground
for any indulgence, hence, there remained
ground for proceeding and this ground was
held to be sufficient for framing of charge.

12. Hence, under all above facts and
circumstances, this Court, in exercise of
inherent power, under Section 482 of
Cr.P.C., is not expected to embark upon
factual matrix because it may prejudice
fair trial and, more so, it is not under the
domain of this Court as has been held by
the Apex Court, in State of Andhra
Pradesh v. Gaurishetty Mahesh, JT
2010 (6) SC 588: (2010) 6 SCALE 767:
2010 Cr. LJ 3844, has propounded that
"While
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 apprehension of it accusation
would not be sustained. That is the
function of the trial Judge/Court". In
another subsequent judgment, in the case
of Hamida v. Rashid, (2008) 1 SCC 474,
Hon'ble Apex Court propounded that
"Ends of justice would be better served if
valuable time of the Court is spent in
hearing
those
appeals
rather
than
entertaining petitions under Section 482 at
an interlocutory stage which after filed
with some oblique motive in order to
2 All. Smt. Dhanrawati Devi & Ors. Vs. State of U.P. & Anr.
1453
circumvent the prescribed procedure, or to
delay the trial which enable to win over
the witness or may disinterested in giving
evidence,
ultimately
resulting
in
miscarriage of Justice". In again yet
another judgment, in the case of Monica
Kumar v. State of Uttar Pradesh, (2008)
8 SCC 781, the Apex Court has
propounded "Inherent jurisdiction under
Section 482 has to be exercised sparingly,
carefully and with caution and only when
such exercise is justified by the tests
specifically laid down in the section
itself." While interpreting this jurisdiction
of High Court Apex Court, in the case of
Popular Muthiah v. State, Represented
by Inspector of Police, (2006) 7 SCC
296, has propounded "High Court can
exercise jurisdiction suo motu in the
interest of justice. It can do so while
exercising other jurisdictions such as
appellate or revisional jurisdiction. No
formal application for invoking inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters.
It can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".

13. Regarding prevention of abuse of
process of Court, Apex Court, in the case of
Dhanlakshmi v. R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494, has
propounded "To prevent abuse of the process
of the Court, High Court, in exercise of its
inherent powers under section 482, could
quash the proceedings, but, there would be
justification for interference only when the
complaint did not disclose any offence or was
frivolous vexatious or oppressive" as well as in
the case of State of Bihar v. Murad Ali
Khan, (1989) Cr LJ 1005: AIR 1989 SC 1,
Apex Court propounded "In exercising
jurisdiction under Section 482 High Court
would not embark upon an enquiry whether
the allegations in the complaint are likely to be
established by evidence or not".

14. Meaning thereby, exercise of
inherent jurisdiction under Section 482 Cr.P.C.
is within the limits, propounded as above.

15. One thing is also to be noted that it
was a State case, wherein chargesheet was
filed, whereas, application for discharge was
moved, under Section 245 (2) of Cr.P.C, which
is under Chapter XV of Code of Criminal
Procedure, 1973, i.e., pertaining to complain
cases. Thus, on this score, too, Application for
discharge ought to have been rejected, but, the
Trial
court
considered
Application
for
discharge on the merit and not on took a
technical view and on merit, too, Discharge
Application was rejected.

16. Accordingly, there was no abuse of
process of law.

17. In view of what has been discussed
above, this Application, under Section 482 of
Cr.P.C., merits dismissal and it stands
dismissed accordingly.
----------
(2020)02ILR A1453

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 738 of 2020

Smt. Dhanrawati Devi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Narendra Deo Shukla, Sri Pankaj
Kumar Tiwari