# Irshad Hussain v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-13
- **Case number:** Application u/s 482 No. 4048 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irshad-hussain-v-state-of-u-p-anr-46146
- **Pages:** 13

## Headnote

A. Criminal Law - Application u/s 482 -
Jurisdiction of Court - Indian Penal Code:
Ss. 420, 468, 471, 257, 259, 379, 411, 413,
120B; Code of Criminal Code: Section 100,
482 - In exercise of jurisdiction under S.
482 Cr.P.C. this Court is not supposed to
examine defence evidence as a Trial Court
when after taking cognizance Magistrate has
issued warrant and evidence is yet to be adduced
in Trial. (Para 13)

In exercise of jurisdiction u/s 482 CrPC, it is not
permissible for the Court to act as if it were Trial
Court. Court has only to be prima facie satisfied
about
existence
of
sufficient
ground
for
proceeding against accused. For that limited
purpose, Court can evaluate material and
documents on record but it cannot appreciate
evidence to conclude whether materials produced
are sufficient or not for convicting accused. High
Court should not exercise jurisdiction u/s 482
CrPC embarking upon an enquiry into whether
evidence is reliable or not or whether on
reasonable apprehension of evidence, allegations
are not sustainable, or decide function of Trial
Judge. (Para 21, 30)

In State of Haryana vs. Bhajan Lal and others
(infra) issue of jurisdiction of this Court u/s 482
Cr.P.C. has been considered and what has been
laid down therein in para. 102 has been
repeatedly followed and reiterated consistently.
They have been reproduced in very recent
judgment in Google India Private Limited Vs.
Visakha Industries and Ors., AIR 2020 SC 350.
(Para 15)

B. Exercise of inherent power under
Section 482 CrPC is not a rule but
exception. The power of quashing a
criminal proceeding should be exercised
very sparingly and with circumspection and
that too in the rarest of rare cases; and that
the extraordinary or inherent powers do not
1 All. Irshad Hussain Vs. State of U.P. & Anr.
995
confer an arbitrary jurisdiction on the court to act
according to its whim or caprice.(Para 16, 18)

Words "rarest of rare cases" are used after the
words 'sparingly and with circumspection' while
describing scope of Section 482 CrPC. Those
words merely emphasize and reiterate what is
intended to be conveyed by the words 'sparingly
and with circumspection'. They mean that the
power u/s 482 to quash proceedings should not
be used mechanically or routinely, but with care
and caution, only when a clear case for
quashing is made out and failure to interfere
would lead to a miscarriage of justice. The
expression "rarest of rare cases" is not used in
the sense in which it is used with reference to
punishment for offences u/s 302 IPC, but to
emphasize that the power u/s 482 Cr.P.C. to
quash FIR or criminal proceedings should be
used sparingly and with circumspection. (Para
17)

For interference u/s 482, three conditions
are to be fulfilled. The injustice which comes to
light should be of a grave, and not of a trivial
character; it should be palpable and clear and not
doubtful and there should exist no other provision
of law by which the party aggrieved could have
sought relief. (Para 20, 22)

In the present case, the entire argument of
applicant is basically his defence which cannot be
examined at this stage. No material irregularity in
the procedure followed by Court below has been
pointed out. It is not a case of grave injustice
justifying interference in this application at this
stage. (Para 29, 33)

Application dismissed. (E-3)

Precedent followed:

## Text

_Characters 0–39,977 of 43,282. This is a partial read: ask again with offset=39977 for what follows._

994 INDIAN LAW REPORTS ALLAHABAD SERIES
stand the test of the law as laid down in the
cases of ''Ashok Kumar' (Supra) and
Ram Deo Food Products (Supra) of the
Hon'ble Supreme Court, and in the case of
''Gulab Chand Upadhyay' (Supra) of this
Court.

44. The present revision therefore,
deserves to be allowed and the order under
challenge deserves to be set-aside, with the
direction to the learned Magistrate to pass fresh
orders
on
the
application
of
the
revisionist/applicant, after affording opportunity
of hearing to him in accordance with law,
within a period of two months from the date of
production of true/attested copy of this
judgment, before him. It is made clear that this
Court has not commented upon the merits of
the application under Section 156(3) Cr.P.C.
either way. In other words this Court has not
adjudicated if the order for police investigation
be passed or the application be registered as a
complaint case. This would be in the discretion
of the learned Magistrate to be exercised
keeping in view the principles of law as
discussed above.

45. With the aforesaid observations and
directions, this revision /petition is allowed.

46. No orders as to costs.
----------
(2021)01ILR A994
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application u/s 482 No. 4048 of 2004

Irshad Hussain ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicant:
Sri M.D.Singh Shekhar, Sri Shanshank
Shekhar, Sri Vaibhav Goswami

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

A. Criminal Law - Application u/s 482 -
Jurisdiction of Court - Indian Penal Code:
Ss. 420, 468, 471, 257, 259, 379, 411, 413,
120B; Code of Criminal Code: Section 100,
482 - In exercise of jurisdiction under S.
482 Cr.P.C. this Court is not supposed to
examine defence evidence as a Trial Court
when after taking cognizance Magistrate has
issued warrant and evidence is yet to be adduced
in Trial. (Para 13)

In exercise of jurisdiction u/s 482 CrPC, it is not
permissible for the Court to act as if it were Trial
Court. Court has only to be prima facie satisfied
about
existence
of
sufficient
ground
for
proceeding against accused. For that limited
purpose, Court can evaluate material and
documents on record but it cannot appreciate
evidence to conclude whether materials produced
are sufficient or not for convicting accused. High
Court should not exercise jurisdiction u/s 482
CrPC embarking upon an enquiry into whether
evidence is reliable or not or whether on
reasonable apprehension of evidence, allegations
are not sustainable, or decide function of Trial
Judge. (Para 21, 30)

In State of Haryana vs. Bhajan Lal and others
(infra) issue of jurisdiction of this Court u/s 482
Cr.P.C. has been considered and what has been
laid down therein in para. 102 has been
repeatedly followed and reiterated consistently.
They have been reproduced in very recent
judgment in Google India Private Limited Vs.
Visakha Industries and Ors., AIR 2020 SC 350.
(Para 15)

B. Exercise of inherent power under
Section 482 CrPC is not a rule but
exception. The power of quashing a
criminal proceeding should be exercised
very sparingly and with circumspection and
that too in the rarest of rare cases; and that
the extraordinary or inherent powers do not
1 All. Irshad Hussain Vs. State of U.P. & Anr.
995
confer an arbitrary jurisdiction on the court to act
according to its whim or caprice.(Para 16, 18)

Words "rarest of rare cases" are used after the
words 'sparingly and with circumspection' while
describing scope of Section 482 CrPC. Those
words merely emphasize and reiterate what is
intended to be conveyed by the words 'sparingly
and with circumspection'. They mean that the
power u/s 482 to quash proceedings should not
be used mechanically or routinely, but with care
and caution, only when a clear case for
quashing is made out and failure to interfere
would lead to a miscarriage of justice. The
expression "rarest of rare cases" is not used in
the sense in which it is used with reference to
punishment for offences u/s 302 IPC, but to
emphasize that the power u/s 482 Cr.P.C. to
quash FIR or criminal proceedings should be
used sparingly and with circumspection. (Para
17)

For interference u/s 482, three conditions
are to be fulfilled. The injustice which comes to
light should be of a grave, and not of a trivial
character; it should be palpable and clear and not
doubtful and there should exist no other provision
of law by which the party aggrieved could have
sought relief. (Para 20, 22)

In the present case, the entire argument of
applicant is basically his defence which cannot be
examined at this stage. No material irregularity in
the procedure followed by Court below has been
pointed out. It is not a case of grave injustice
justifying interference in this application at this
stage. (Para 29, 33)

Application dismissed. (E-3)

Precedent followed:

1. Bhajan Lal & ors., (1992) Supp (1) SCC 335
(Para 14)

2. Google India Private Limited Vs Viisakha
Industries & ors., AIR 2020 SC 350 (Para 15)

3. Jeffrey J. Diermeier & ors. Vs St. of W.B. & ors.,
(2010) (6) SCC 243 (Para 17)

4. Som Mittal Vs St. of Karn., (2008) (3) SCC 753
(Para 18)
5. Lakshman Vs St. of Karn. & ors., (2019) (9) SCC
677 (Para 19)

6. Chilakamarthi Venkateswarlu & ors. Vs St. of
Andhra Pradesh & ors., AIR 2019 SC 3913 (Para
20)

7. Zandu Pharmaceuticals Works Ltd. & ors. Vs
Mohd. Sharaful Haque & ors., (2005) (1) SCC 122
(Para 21)

8. M.A.A. Annamalai Vs St. of Karn. & ors., (2010)
(8) SCC 524 (Para 22)

9. Sharda Prasad Sinha Vs. St. of Bih., AIR 1977
SC 1754 (Para 22)

10. Nagawwa Vs Veeranna Shivalingappa Konjalgi
& ors., 1976 AIR 1976 SC 1947 (Para 22)

11. Rakhi Mishra Vs St. of Bih. & ors., (2017) (16)
SCC 772 (Para 23)

12. Sonu Gupta Vs Deepak Gupta & ors., (2015)
(3) SC 424 (Para 23)

13. Roshni Chopra & ors. Vs St. of U.P. & ors.,
(2019) (7) Scale 152 (Para 23)

14. Dy. Chief Controller OF Imports & Exports
Vs Roshanlal Agarwal & ors., (2003) 4 SCC 139
(Para 23)

15. U.P. Pollution Control Board Vs Mohan
Marketing Ltd. & ors., (2000) (3) SCC 745 (Para
24)

16. Kanti Bhadra Shah Vs St. of W.B. (2001)
SCC 722 (Para 24)

17. Nupur Talwar Vs C.B.I. & ors., (2012) (11)
SCC 465 (Para 25)

18. Parbatbhai Aahir & ors. Vs St. of Guj. & ors.,
(2017) (9) SCC 641 (Para 26)

19. Arun Singh & ors. Vs St. of U.P. passed in
Criminal Appeal No. 250 of 2020 (arising out of
Special Leave Petition (Crl.) No. 5224 of 2017),
decided on 10.02.2020 (Para 27)

20. Md. Allauddin Khan Vs The St. of Bih. & ors.,
(2019) 6 SCC 107 (Para 31)
996 INDIAN LAW REPORTS ALLAHABAD SERIES
21. St. of M.P. Vs. Yogendra Singh Jadaun &
anr., Criminal Appeal No. 175 of 2020, decided
on 31.01.2020 (Para 32)

Present application u/s 482 Cr.P.C. has
been filed, with the prayer to quash entire
proceedings of Criminal Case u/Ss 419,
420, 467, 468, 471, 256, 259, 379, 411,
413 and 120B I.P.C. and order dated
07.04.2004, passed
by
Chief Judicial
Magistrate, Chitrakoot.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri M.D. Singh Shekhar,
learned Senior Advocate, assisted by Sri
Vaibhav Goswami, Advocate, for applicant
and learned A.G.A. for State.

2. This is an application under Section
482 Cr.P.C. filed by sole applicant, Irshad
Hussain, with the prayer to quash entire
proceedings of Criminal Case No. 803 of
2004 under Sections 419, 420, 467, 468, 471,
256, 259, 379, 411, 413 and 120B I.P.C. and
order dated 07.04.2004 whereby Chief
Judicial Magistrate, Chitrakoot (hereinafter
referred to as "CJM, Chitrakoot") has taken
cognizance and issued warrants to applicant
and another, pending in the Court of Chief
Judicial Magistrate (hereinafter referred to as
"CJM"), Chitrakoot.

3. Facts in brief, as stated in the
application, are that applicant obtained his
Bachelor of Technology degree in Electrical
and Electronics and appointed as Junior
Engineer in Indian Telephone Industries
Limited,
Naini,
Allahabad
(hereinafter
referred to as "ITI, Allahabad") which is a
Central
Government
undertaking
and
instrumentality of State within the meaning
of Article 12 of Constitution. In August,
1997, i.e., 23.08.1997 applicant departed for
Jeddah (Saudi Arabia) to perform religious
obligation Haj (Umera). Just a two days
before, i.e., on 21.08.1997, at P.S. Kotwali
Karvi, District Chitrakoot, a First Information
Report (hereinafter referred to as "FIR") was
lodged by one R.N. Verma, Superintendent
of Post Offices, Banda Prakhand, Banda
against Ram Lakhan Verma, Ayodhya Prasad
Pandey and Sushil Chand Tripathi under
Sections 409, 419, 420, 467, 468, 471, 120B
I.P.C.
for
committing
fraud
and
embezzlement of 5,70,500/-.

4. The case set up in FIR was that on
04.07.1997 one Ayodhya Prasad Pandey, son
of
Ram
Bahori
Pandey,
resident
of
Bharatpuri,
Karvi,
working
as
Postal
Assistant and Supervisor has shown payment
of Rs. 75,000/- to R.L. Verma. He also
mentioned that he personally knew @ R.L.
Verma. The number of Kisan Vikas Patra
encahsed are numbers 35BB922551 to
35BB922560, each of which is of Rs. 5,000/-
Thereafter on 05.07.1997 one Sushil Chandra
Tripathi, son of Chhote Lal Tripathi, resident
of Village and Post Lodhwara (Karvi), DakAssistant and the above Ayodhya Prasad
Pandey
again
made payment of
Rs.
2,25,000/- to aforesaid R.L. Verma against
five
years-Kisan
Vikas
Patra
Nos.
35BB922561 to 35BB922590, value of each
of which was Rs. 5,000/-, at Post Office
Karvi. On these Kisan Vikas Patra shown
encahsed, Ayodhya Prasad Pandey has
obtained signature of a woman Smt. Vimla
Devi, who is working as Waterer in Karvi
Post Office stating that it is just a paper
formality. Vimla Devi informed that the
person who has taken payment of these Vikas
Patra, was neither known to her nor she had
ever seen him. Again on 07.08.1997 working
as Dak-Assistant in Karvi Post Office itself,
Sushil Chandra Tripathi and Ayodhya Prasad
Pandey have shown payment of Rs.
1,50,000/- to above R.L. Verma and on the
encahsed Vikas Patras, witness of Smt. Uma
Tiwari, wife of Sriram Autar Tiwari was
shown by Ayodhya Prasad Pandey. Smt.
1 All. Irshad Hussain Vs. State of U.P. & Anr.
997
Uma Tiwari has clarified that on 07.08.1997
when she came to Karvi Post Office,
Ayodhya Prasad Pandey told her that this
person is very close to him and asked her to
witness
him
stating
that
it
is
his
responsibility. Smt. Uma Tiwari informed
that she said that she does not know R.L.
Verma on which he (Ayodhya Prasad
Pandey) said that he (R.L. Verma) is resident
of Bankat Road. Reposing faith on Ayodhya
Prasad Pandey, she witnessed R.L. Verma.
That apart, on 26.05.1997 Sushil Chandra
Tripathi, Dak-Assistant and Ayodhya Prasad
Pandey, Supervisor, Karvi Post Office, have
shown payment of Rs. 1,20,000/- to aforesaid
R.L. Verma against Kisan Vikas Patra Nos.
31BB0155933 to 015948, each of Rs. 5,000/-
. In this way, on 26.05.1997, 04.07.1997,
05.07,1997 and on 07.08.1997 payment of
total Rs. 5,70,000/- was shown by Sushil
Chandra Tripathi and Ayodhya Prasad
Pandey at Karvi Post Office to R.L. Verma. It
is further alleged that neither aforesaid Kisan
Vikas Patra was issued from any Post Office
in the name of R. L. Verma or any other
person nor issuance thereof was mentioned in
any Government record. Neither Ayodhya
Prasad Pandey and Sushil Chandra Tripathi
nor Smt. Uma Tiwari were able to tell
address or whereabouts of alleged R.L.
Verma nor they produced him. In this way
R.L. Verma and the abovenamed persons
have caused loss of Rs. 5,70,000/- to Postal
Department.
The
aforesaid
FIR
was
registered as Case Crime No. 211 of 1997.

5. Police made investigation and on
interrogation of Ram Lakhan Verma found
that his real name is Madhrakhan Singh and
he has committed fraud along with one
Prabhash Singh. On the pointing out of Ram
Lakhan Verma alias Madhrakhan Singh and
Prabhash Singh Police searched at applicant's
house on 26.08.1997 when he was not
present and only his wife was present and
claimed to have recovered following articles
from bed room of applicant:

Sl.
Details
of
the articles
Distin
ctive
nos.
Qty.
(nos.
)
Value of
Articles
(Rs.)
each
1.
Kishan
Vikas Patra
34CC
57998
8
1
10,000/-
2.
Kishan
Vikas Patra
35AA
60573
1-732
2
1,000/-
3.
Kishan
Vikas Patra
31BB
01098
1-998
18 5,000/-
4.
Kishan
Vikas Patra
31BB
01100
0
1
5,000/-
5.
Indira
Vikas Patra
44C65
2146170
25 5,000/-
6.
Plain nonjudicial
stamp
papers

4
5,000/-
each

6. Consequentially on the basis of
aforesaid recovery, another FIR as Case
Crime No. 216 of 1997 was registered on
27.08.1997 under Sections 419, 420, 467,
568, 471, 256, 257, 259, 379, 411, 413,
120B I.P.C. at P.S. Kotwali Karvi, District
Chitrakoot and the allegations in the FIR
are that the Informant, Sri R.P. Srivastava,
Station House Officer, along with Police
Team, on reaching Post Office Karvi,
found
Ramesh
Chandra
Upadhyay,
Assistant Dak Pal and Shiv Ganesh
Tripathi, Supervisor. There was also
another person namely R.L. Verma and on
being searched, from his possession 40
998 INDIAN LAW REPORTS ALLAHABAD SERIES
Kisan Vikas Patras of Rs. 5000/-each from
Sl.No. 31BB010941 to 980, in the name of
aforesaid R.L. Verma, maturity amount
whereof was Rs. 3 lac, were found. On
being enquired, he told that these Vikas
Patra have been given to him by Prabhash
Singh Patel who has come on Scooter and I
have come here after leaving him on
Station. Only he can tell about the Vikas
Patras. On this information Police Team
along with R.L. Verma proceeded in the
search of Prabhash Singh Patel and after a
hectic search, information was received
that one person has run towards Khoh from
the Post Office. On reaching Khoh, seeing
the Police he tried to start his Scooter but
was caught by employees. He disclosed his
name Prabhash Singh, son of Ramesh
Singh Patel, Village Rakshpalpur, Police
Station
Khakhred,
District
Fatehpur,
present address House No. 777A/664,
Sultanpur Bhawa, Khuldabad, Allahabad.
He also told the name of R.L. Verma as
Madhrakhan Singh Patel, son of Shambhoo
Singh Patel, Resident of Prashidhpur,
Police Station Dhata, District Fatehpur and
present address Rajrooppur, Police Station
Dhoomanganj, Allahabad. He told nothing
about his Scooter UP71A/8414. On search
being made, one pistol of 315 bore in
working condition and four cartridges of
315 bore were found from his possession.
In his Scooter, in a polythene bag 50 Kisan
Vikas Patra of five and half years of the
value
of
Rs.
5000/-
Series
No.
31BB015801 to 850 were found in respect
of which he informed that he has been
given these Vikas Patras by Irshad Ahmad,
resident of Karailabad Colony, Allahabad
and Jalaluddin, resident of G.T.B. Nagar,
Kareli,
Allahabad
for
payment
on
assurance of 25 per cent commission. If
immediate search is made, Kisan Vikas
Patras may be recovered from the house of
Irshad and Jalaluddin. Prabhash Singh and
Madhrakhan Singh also confirmed this
information on the basis whereof in the
presence of Madhrakhan Singh, his house
was searched wherefrom S.B.B.L. Gun
Licence No. 8364/77 and 26 live and 5
used
cartridges
were
recovered.
He
informed that this gun belong to Prabhash
Singh but kept in his (Madhrakhan Singh's)
house. On further search, 50 Kisan Vikas
Patras and 19 Indira Vikas Patras, each of
Rs. 5000/- were recovered from an Attatche
kept in inner room. On search of house of
Prabhash Singh, one Kisan Vikas Patra of
Rs. 10,000/- and one of Rs. 5,000/- in the
name of Suneeta Singh, issued from
Rajrooppur
Post
Office
were
found.
Besides, 20 Kisan Vikas Patras, 25 Indira
Vikas Patras each of Rs. 5000/-, one gold
biscuit weighed about 93.80 gram, worth
about Rs. 50,000, three stamps of Post
Office, Sahatwar, Ballia, 5 piece date
blocks, four non-judicial forged stamp
papers each of Rs. 5,000/- and cash Rs.
4,34,544/- were recovered. In respect of the
cash recovered, it was stated that it is the
maturity amount of the Kisan Vikas Patras,
encashsed last month at Karvi. On pointing
out of Madhrakhan Singh and Prabhash
Singh, search was made at the house of
Irshad, at Karailabag Colony, Allahabad in
presence of his wife Shahida Parveen,
wherefrom one Kisan Vikas Patra of Rs.
10,000/- two Kisan Vikas Patras of Rs.
1000/- each, 19 Kisan Vikas Patras and 25
Indira Vikas Patras of Rs. 5000/, and four
non judicial stamp papers of Rs. 5000/-
which appeared to be forged, were
recovered. On the search at the residence of
Jalaluddin, at G.T.B. Nagar, karaily,
Allahabad 49 Kisan Vikas Patras of Rs.
5000/- each, 30 Indira Vikas Patras each of
Rs. 5000/- and 5 forged non judicial stamp
papers of Rs. 5000/-, 80 revenue tickets and
stamp of post office etc. were recovered.
From the Maruti Suzuki Zen parked
1 All. Irshad Hussain Vs. State of U.P. & Anr.
999
adjacent to the house, service book,
Insurance certificate, 50 Kisan Vikas
Patras, Cheque Book and Pass Book of
bank account were recovered. The Maruti
Zen was allegedly purchased from the
payment received from forged encashment
of Kisan Vikas Patras in the name of Dr.
S.J. Ahmad, 676, G.T.B. Nagar, Kareli,
Allahabad. Further investigation revealed
that aforesaid Madhrakhan Singh, Javed
Ahmad,
Jalaluddin,
Irshad
Ahmad,
Prabhash Singh, and Bhupendra Singh have
formed a gang and they used to obtain
illegally stolen Kisan Vikas Patras and
Indira Vikas Patras and by encashing them
used to cause loss to Government revenue
and in this way they have acquired crores
of rupees. Their income is many times than
their known sources of income. Request
was lastly made to lodge FIR.

7.

Police,
after
investigation,
submitted charge-sheet No. 222 dated
18.11.1997 in Case Crime No. 211 of 1997
and another Charge Sheet No. 221 dated
18.11.1997 in Case Crime No. 216 of 1997.

8. On 28.11.1997, investigation was
transferred to Economics Offences Wing of
C.I.D. (hereinafter referred to as "EOW,
CID, Lucknow") for further investigation
under Section 173(8) Cr.P.C. There it was
registered as EOW Investigation No. 71 of
1997 in both Crime No. 211 and 216 of
1997.
EOW,
CID,
Lucknow
during
investigation
recorded
statements
of
applicant's wife, Smt. Shahida Parveen,
applicant and one Sandeep Mishra. In
Parcha No. 38, Investigating Officer
(hereinafter referred to as 'I.O.') noted that
the applicant, Jalaluddin and Javed Ahmad
are not found involved in Crime and,
therefore, submitted charge sheet under
Sections 409, 419, 420, 467, 468, 471,
120B I.P.C. against Madhrakhan Singh,
Prabhash Singh, Ayodhya Prasad, Shushil
Chandra Tripathi and Bhupendra Singh.
However,
in
Parcha
No.
36
dated
15.11.2002, I.O. submitted charge sheet
against R.L. Verma alias Madhrakhan
Singh, Prabhash Singh, Bhupendra Singh,
applicant, i.e. Irshad Hussain, Jalaluddin
and Javed Ahmad under Sections 420, 468,
471, 257, 259, 379, 411, 413, 120B I.P.C.
Magistrate,
thereafter,
has
taken
cognizance and issued warrants to applicant
and others vide order dated 07.04.2004.

9. It is contended by learned counsel
for applicant that search was conducted in
the absence of independent witness and
without complying with the provisions of
Section 100 Cr.P.C. Kishan Vikas Patras
and Indira Vikas Patras were recovered
from the accused Madhrakhan Singh and
Prabhash Singh but planted in the house of
applicant to implicate him falsely and
recovery is nothing but fake.

10. Learned Senior Counsel for
applicant further submitted that once a
Parcha was submitted and nothing was
found against applicant, another chargesheet
submitted
against
applicant
is
patently illegal and applicant has been
falsely implicated.

11. Record shows that statement of
applicant's wife herself was recorded by
I.O., EOW, CID, Lucknow. She admitted
that Police came to her house for making
search though did not find anything
objectionable therefrom. Recovery memo
shows that she refused to put her signature
on the Fard.

12. Whether the defence taken by
applicant that seizure is forged and nothing
was found from applicant's house is correct
or not is a matter of defence of applicant
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
and evidence is yet to be recorded in Trial.
At this stage, it is impermissible to assess
and examine the entire case as a Trial Court
to find out whether applicant has been
falsely implicated or not.

13. In exercise of jurisdiction under
Article 482 Cr.P.C. this Court is not
supposed to examine defence evidence as a
Trial Court when after taking cognizance
Magistrate has issued warrant and evidence
is yet to be adduced in Trial.

14. The principles which justify
interference under Section 482 Cr.P.C. by
Court have been laid down in various
authorities in which Supreme Court's
judgment in Bhajan Lal and others, 1992
Supp (1) SCC 335 was leading precedent
and thereafter matter has been examined by
even Larger Benches.

15. In State of Haryana vs. Bhajan
Lal
and
others
(supra)
issue
of
jurisdiction of this Court under Section 482
Cr.P.C. has been considered and what has
been laid down therein in paragraph 102
has been repeatedly followed and reiterated
consistently. In very recent judgment in
Google
India
Private
Limited
Vs.
Visakha Industries and Ors., AIR 2020
SC 350, guidelines laid down in paragraph
102 in Bhajal Lal's case (supra) have
been reproduced as under :

"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.

(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
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 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 a case against
the Accused.

(4) 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.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
1 All. Irshad Hussain Vs. State of U.P. & Anr.
1001
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 in 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 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." (emphasis added)

16. Court has also reproduced note of
caution given in paragraph 103 in Bhajan
Lal's case (supra) which reads as under :

"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." (emphasis added)

17. What would be the scope of
expression "rarest of rare cases" referred to
in para 103 in State of Haryana vs.
Bhajan Lal (supra) has been considered in
Jeffrey J. Diermeier and Ors. Vs. State
of West Bengal and Ors. , 2010 (6) SCC
243. Court has said that words "rarest of
rare cases" are used after the words
'sparingly and with circumspection' while
describing scope of Section 482 CrPC.
Those
words
merely
emphasize
and
reiterate what is intended to be conveyed
by
the
words
'sparingly
and
with
circumspection'. They mean that the power
under Section 482 to quash proceedings
should not be used mechanically or
routinely, but with care and caution, only
when a clear case for quashing is made out
and failure to interfere would lead to a
miscarriage of justice. The expression
"rarest of rare cases" is not used in the
sense in which it is used with reference to
punishment for offences under Section 302
IPC, but to emphasize that the power under
Section 482 Cr.P.C. to quash FIR or
criminal proceedings should be used
sparingly and with circumspection.

18. Supreme Court in Jeffrey J.
Diermeier (supra) in fact referred to an
earlier three Judges' Bench judgment in
Som Mittal Vs. State of Karnataka, 2008
(3) SCC 753, to explain phrase "rarest of
rare cases". In Som Mittal (supra), Court
also said that exercise of inherent power
under Section 482 CrPC is not a rule but
exception. Exception is applied only when
it is brought to notice of Court that grave
miscarriage of justice would be added if
trial is allowed to proceed where accused
would be harassed unnecessarily or if trial
is allowed to linger when prima facie it
appears to Court that trial would likely to
be ended in acquittal. Whenever question
of fact is raised which requires evidence,
Courts always said that at pre trial stage i.e.
at the stage of cognizance taken by
Magistrate power under Section 482 CrPC
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
would not be appropriate to be utilized,
since, question of fact has to be decided in
the light of evidence which are yet to be
adduced by parties.

19. In Lakshman vs. State of
Karnataka and others, 2019 (9) SCC 677
Court said that it is not permissible for High
Court in application under Section 482 CrPC
to record any finding wherever there are
factual disputes. Court also held that even in
dispute of civil nature where there is
allegation of breach of contract, if there is any
element of breach of trust with mens rea, it
gives rise to criminal prosecution as well and
merely on the ground that there was civil
dispute, criminality involved in the matter
cannot be ignored. Further whether there is
any mens rea on part of accused or not, is a
matter required to be considered having
regard to facts and circumstances and
contents of complaint and evidence etc,
therefore, it cannot be said pre judged in a
petition under Section 482 CrPC.

20.

In
Chilakamarthi
Venkateswarlu and Ors. Vs. State of
Andhra Pradesh and Ors., AIR 2019 SC
3913,
Court
reiterated
that
inherent
jurisdiction though wide and expansive has
to be exercised sparingly, carefully and
with caution and only when such exercise
would justify by tests specifically laid
down in Section itself. In paragraph 14 of
judgment, Court said :

"14.
For
interference
Under
Section 482, three conditions are to be
fulfilled. The injustice which comes to light
should be of a grave, and not of a trivial
character; it should be palpable and clear
and not doubtful and there should exist no
other provision of law by which the party
aggrieved
could
have
sought
relief."
(emphasis added)

21. Court also said that in exercise of
jurisdiction under Section 482 CrPC it is
not permissible for the Court to act as if it
were Trial Court. Court has only to be
prima facie satisfied about existence of
sufficient ground for proceeding against
accused. For that limited purpose, Court
can evaluate material and documents on
record but it cannot appreciate evidence to
conclude whether materials produced are
sufficient or not for convicting accused.
High Court should not exercise jurisdiction
under Section 482 CrPC embarking upon
an enquiry into whether evidence is reliable
or
not
or
whether
on
reasonable
apprehension of evidence, allegations are
not sustainable, or decide function of Trial
Judge. For the above proposition, Court
relied on its earlier authority in Zandu
Pharmaceuticals Works Limited and
others vs Mohd. Sharaful Haque and
others, 2005 (1) SCC 122.

22. Power under section 482 CrPC
should not be exercised to stifle legitimate
prosecution. At the same time, if basic
ingredients
of
offfences
alleged
are
altogether absent criminal proceedings can
be quashed under Section 482 CrPC.
Relying on M.A.A. Annamalai Vs. State
of Karnataka and Ors. , 2010 (8) SCC
524, Sharda Prasad Sinha Vs. State of
Bihar, AIR 1977 SC 1754 and Nagawwa
Vs. Veeranna Shivalingappa Konjalgi
and Ors., 1976 AIR 1976 SC 1947, Court
in Chilakamarthi Venkateswarlu and
Ors. Vs. State of Andhra Pradesh and
Ors. (supra) said that where allegations set
out in complaint or charge sheet do not
constitute any offence, it is open to High
Court exercising its inherent jurisdiction
under Section 482 CrPC to quash order
passed by Magistrate taking cognizance of
offence. Inherent power under Section 482
CrPC is intended to prevent abuse of
1 All. Irshad Hussain Vs. State of U.P. & Anr.
1003
process of Court and to clear ends of
justice. Such power cannot be exercised to
do something which is expressly barred
under CrPC. Magistrate also has to take
cognizance applying judicial mind only to
see whether prima facie case is made out
for summoning accused persons or not. At
this stage, Magistrate is neither required to
consider FIR version nor he is required to
evaluate value of materials or evidence of
complainant find out at this stage whether
evidence would lead to conviction or not.

23. It has also been so observed in
Rakhi Mishra Vs. State of Bihar and Ors.,
2017 (16) SCC 772 and Sonu Gupta Vs.
Deepak Gupta and Ors. , 2015 (3) SC 424
and followed recently in Roshni Chopra
and others vs. State of U.P. and others,
2019 (7) Scale 152. Here Court also referred
to judgment in Dy. Chief Controller of
Imports & Exports v. Roshanlal Agarwal
and Ors., (2003) 4 SCC 139, wherein
paragraph 9, Court said that in determining
the question whether any process has to be
issued or not, Magistrate has to be satisfied
whether there is sufficient ground for
proceeding or not and whether there is
sufficient ground for conviction; whether the
evidence
is
adequate
for
supporting
conviction, can be determined only at the trial
and not at the stage of inquiry.

24. However, it is also true that at the
stage of issuing process to the accused,
Magistrate is not required to record reasons.
In U. P. Pollution Control Board vs.
Mohan Meaking Limited and others, 2000
(3) SCC 745 after referring to a decision in
Kanti Bhadra Shah Vs State of West
Bengal 2001 SCC 722, Court said as under :

"Legislature has stressed the
need to record reasons in certain situations
such as dismissal of complaint without
issuing
process.
There
is
no
such
requirement imposed on a Magistrate for
passed
detailed
order
while
issuing
summons. Process issued to accused
cannot be quashed merely on the ground
that Magistrate had not passed a speaking
order." (emphasis added)

25. Same proposition was reiterated in
Nupur Talwar Vs Central Bureau of
Investigation and others, 2012 (11) SCC
465.

26. In a Three Judges' Bench in
Parbatbhai Aahir and Ors. Vs State of
Gujarat and Ors, 2017 (9) SCC 641,
Court has observed that Section 482 CrPC
is prefaced with an overriding provision. It
saves inherent power of High Court, as a
superior court, to make such orders as are
necessary (i) to prevent an abuse of the
process of any court; or (ii) otherwise to
secure the ends of justice. In Paragraph 15
of the judgment Court summarized as
under :

"(i) Section 482 preserves the
inherent powers of the High Court to
prevent an abuse of the process of any
court or to secure the ends of justice. The
provision does not confer new powers. It
only recognises and preserves powers
which inhere in the High Court;

(ii)
The
invocation
of
the
jurisdiction of the High Court to quash a
First Information Report or a criminal
proceeding
on
the
ground
that
a
settlement has been arrived at between the
offender and the victim is not the same as
the invocation of jurisdiction for the
purpose of compounding an offence.
While compounding an offence, the power
of the court is governed by the provisions
of Section 320 of the Code of Criminal
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure, 1973. The power to quash
Under Section 482 is attracted even if the
offence is non-compoundable.

(iii) In forming an opinion
whether
a
criminal
proceeding
or
complaint should be quashed in exercise of
its jurisdiction Under Section 482, the
High Court must evaluate whether the
ends of justice would justify the exercise
of the inherent power;

(iv) While the inherent power of
the High Court has a wide ambit and
plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to
prevent an abuse of the process of any
court;

(v) The decision as to whether a
complaint or First Information Report
should be quashed on the ground that
the offender and victim have settled the
dispute, revolves ultimately on the facts
and circumstances of each case and no
exhaustive elaboration of principles can
be formulated;

(vi) In the exercise of the power
Under Section 482 and while dealing
with a plea that the dispute has been
settled, the High Court must have due
regard to the nature and gravity of the
offence. Heinous and serious offences
involving mental depravity or offences
such as murder, rape and dacoity cannot
appropriately be quashed though the
victim or the family of the victim have
settled the dispute. Such offences are,
truly speaking, not private in nature but
have a serious impact upon society. The
decision to continue with the trial in such
cases is founded on the overriding
element of public interest in punishing
persons for serious offences;

(vii)
As
distinguished
from
serious offences, there may be criminal
cases which have an overwhelming or
predominant element of a civil dispute.
They stand on a distinct footing in so far
as the exercise of the inherent power to
quash is concerned;

(viii) Criminal cases involving
offences which arise from commercial,
financial,
mercantile,
partnership
or
similar transactions with an essentially
civil flavour may in appropriate situations
fall for quashing where parties have settled
the dispute;

(ix) In such a case, the High
Court may quash the criminal proceeding
if in view of the compromise between the
disputants, the possibility of a conviction
is remote and the continuation of a
criminal
proceeding
would
cause
oppression and prejudice; and

(x) There is yet an exception to
the principle set out in propositions (viii)
and
(ix)
above.
Economic
offences
involving the financial and economic wellbeing of the state have implications which
lie beyond the domain of a mere dispute
between private disputants. The High
Court would be justified in declining to
quash where the offender is involved in an
activity akin to a financial or economic
fraud or misdemeanour. The consequences
of the act complained of upon the financial
or economic system will weigh in the
balance." (emphasis added)

27. Above observations have been
reiterated in Arun Singh and other Vs
State of U.P. passed in Criminal Appeal
no.250 of 2020 (arising out of Special
Leave Petition (Crl.) No. 5224 of 2017),
decided on 10.02.2020.
1 All. Irshad Hussain Vs. State of U.P. & Anr.
1005

28. I do not propose to burden this
judgment with similar catena of decisions,
since all are in similar lines.

29. In the present case, the entire
argument of applicant is basically his
defence which cannot be examined at this
stage.

30. Time and again it has been
highlighted by Supreme Court that at the
stage of charge sheet factual query and
assessment of defence evidence is beyond
purview of scrutiny under Section 482
Cr.P.C. The allegations being factual in
nature can be decided only subject to
evidence.
In
view
of
settled
legal
proposition, no findings can be recorded
about veracity of allegations at this juncture
in absence of evidence. Courts have
highlighted repeatedly that jurisdiction
under
Section
482
Cr.P.C.
be
sparingly/rarely invoked with complete
circumspection and caution.

31. In Md. Allauddin Khan Vs. The
State of Bihar and others (2019) 6 SCC
107, Court observed as to what should be
examined by High Court in an application
under Section 482 Cr.P.C. and in paras 15,
16 and 17 said as under:

"15. The High Court should have
seen that when a specific grievance of the
appellant in his complaint was that
respondent Nos. 2 and 3 have committed
the offences punishable under Sections 323,
379 read with Section 34 IPC, then the
question to be examined is as to whether
there are allegations of commission of
these two offences in the complaint or not.
In other words, in order to see whether
any prima facie case against the accused
for taking its cognizable is made out or
not, the Court is only required to see the
allegations made in the complaint. In the
absence of any finding recorded by the
High Court on this material question, the
impugned order is legally unsustainable.

16. The second error is that the
High Court in para 6 held that there are
contradictions in the statements of the
witnesses on the point of occurrence.

17. In our view, the High Court had
no jurisdiction to appreciate the evidence of
the proceedings under Section 482 of the Code
Of Criminal Procedure, 1973 (for short
"Cr.P.C.")
because
whether
there
are
contradictions or/and inconsistencies in the
statements of the witnesses is essentially an
issue relating to appreciation of evidence and
the same can be gone into by the Judicial
Magistrate during trial when the entire
evidence is adduced by the parties. That stage
is yet to come in this case." (emphasis added)

32. Recently, above view has been
reiterated by Apex Court in Criminal Appeal
No. 175 of 2020 (State of Madhya Pradesh
Vs. Yogendra Singh Jadaun and another)
decided on 31.01.2020.

33. No material irregularity in the
procedure followed by Court below has been
pointed out. It is not a case of grave injustice
justifying interference in this application at this
stage.

34 In view of above discussion, I do not
find any illegality or infirmity in impugned
charge sheet or cognizance order of Magistrate.

35. This application lacks merit and is
accordingly dismissed.

36. Interim order, if any, stands
vacated.
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1006 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A1006
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2020

BEFORE

THE HON'BLE DEEPAK VERMA, J.

Application u/s 482 No. 11808 of 2020

Smt.