# Jitesh Kumar Gupta & Ors v. State of U.P.& Anr

- **Citation:** (2019) 4 ILRA 128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 9172 of 2019
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitesh-kumar-gupta-ors-v-state-of-u-p-anr-44918
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section - Complaint
case- It is settled that the power under
Section 482 Cr.P.C. is not to be exercised
in a routine manner, but it is for limited
purposes, namely, to give effect to any
order under the Code, or to prevent
abuse of process of any Court or
otherwise to secure ends of justice. The
allegation can be adjudicated only after
the
evidence
and
truthfulness
of
allegation cannot be considered in the
proceeding under Section 482 Cr.P.C.
before this Court.

Held - From perusal of allegations made in
complaint, statement of witnesses under
Sections 200 and 202 Cr.P.C., it cannot be said
that no prima facie evidence or sufficient
ground for proceeding is there. At the time of
passing summoning order, Magistrate is only
to see prima facie evidence and sufficient
ground for proceeding. (Para 9,10,16 & 17)

Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

## Text

128 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused-applicants. In view of the
material placed before this Court, at the
most, civil liability would arise.

29. In view of the aforesaid, the
prayer to quash the entire criminal
proceedings as well as the impugned
summoning order passed by the court
below is hereby accepted and accordingly,
the entire proceedings as well as the
impugned summoning order passed in the
present case are hereby quashed.

30.

Resultantly,
the
instant
applications stand allowed.
----------

(2019)12 ILR A128

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
9172 of 2019

Jitesh Kumar Gupta & Ors. ...Applicants
Versus
State of U.P.& Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rajendra Singh

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

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section - Complaint
case- It is settled that the power under
Section 482 Cr.P.C. is not to be exercised
in a routine manner, but it is for limited
purposes, namely, to give effect to any
order under the Code, or to prevent
abuse of process of any Court or
otherwise to secure ends of justice. The
allegation can be adjudicated only after
the
evidence
and
truthfulness
of
allegation cannot be considered in the
proceeding under Section 482 Cr.P.C.
before this Court.

Held - From perusal of allegations made in
complaint, statement of witnesses under
Sections 200 and 202 Cr.P.C., it cannot be said
that no prima facie evidence or sufficient
ground for proceeding is there. At the time of
passing summoning order, Magistrate is only
to see prima facie evidence and sufficient
ground for proceeding. (Para 9,10,16 & 17)

Application u/s 482 Cr.P.C rejected. (E-3)

List of cases cited: -

1. St. of Har. & ors Vs. Ch. Bhajan Lal & ors
1992 Supp (1) SCC 335,

2. Popular Muthiah Vs. St. Rep. by Inspector
of Police (2006) 7 SCC 296,

3. Hamida Vs. Rashid @ Rasheed and Ors.
(2008) 1 SCC 474,

4. Dr. Monica Kumar and Anr. Vs. State of U.P.
and Ors. (2008) 8 SCC 781,

5. M.N. Ojha and Ors. Vs. Alok Kumar
Srivastav and Anr. (2009) 9 SCC 682,

6. St. of A.P. vs. Gourishetty Mahesh and Ors.
JT 2010 (6) SC 588 and

7. Iridium India Telecom Ltd. Vs. Motorola
Inc. & Ors. 2011 (1) SCC 74).

8. Priya Vrat Singh & ors vs. Shyam Ji Sahai,
2008 (8) SCC 232

9. Fakhruddin Ahmad v. St. of Uttaranchal,
(2008) 1 SCC 157

(Delivered by Hon'ble Rajendra Kumar-
IV, J.)

1. By means of this application
under Section 482 Cr.P.C., applicants
jitesh Kumar Gupta and four others
4 All. Jitesh Kumar Gupta & Ors. Vs. State of U.P. & Anr.
129
approached this Court for quashing
summoning order dated 14.2.2019 in
Complaint Case No. 367 of 2019 (Pooja
Rani vs. Jitesh Kumar and others), under
Sections 498-A I.P.C. & 3/4 Dowry
Prohibition Act, Police Station Shivpur,
District Varanasi, pending in the Court of
Additional Chief Judicial Magistrate,
Court
No.
6,
Varanasi
and
entire
proceedings thereof.

2. Brief facts giving rise to the
present application are that Smt. Pooja
Rani filed a complaint under Section
156(3) Cr.P.C. on 18.6.2018 against Jitesh
Kumar Gupta, Gopal Chand Gupta, Smt.
Parvati
Devi,
Chandan
Gupta
and
Chandrkesh
Gupta
stating
that
her
marriage took place with Jitesh Kumar
Gupta on 26.4.2016 as per Hindu rites and
sufficient Dowry was given according to
her father's capability, was given to her in
laws at the time of marriage. Complaint
further recites that her in-laws started
demanding one car and Rs. 5,00,000/- as
Dowry and harassing her by saying that
Jitesh Kumar Gupta, her husband, is a
Government Servant. She was ill-treated
and tortured by accused-applicants. On
13.4.2018, she was kicked out from her
matrimonial house by husband and family
members
by
snatching
her
entire
belongings.

3. Application under Section 156 (3)
Cr.P.C. came to be registered as complaint
case. Magistrate recorded the statement of
victim-complainant under Section 200
Cr.P.C. and made an enquiry by recording
statement of Deen Dayal Prasad (PW-1)
and Ashok Kumar Patel (PW-2) under
Section 202 Cr.P.C. and found prima-facie
case and sufficient ground for proceeding
against accused persons, summoned them
for facing trial under Sections 498-A IPC
and Section 3/4 Dowry Prohibition Act,
PS
Shivpur,
District
Varanasi
vide
impugned order dated 14.2.2019.

4. Feeling aggrieved and dissatisfied
with the impugned summoning order,
accused-applicants
filed
present
application under Section 482 Cr.P.C. for
quashing the summoning order as well as
complaint.

5. I have heard Sri S.B. Singh,
Advocate holding brief of Sri Rajendra
Singh, learned counsel for applicants and
learned AGA for State and perused the
record on file.

6. It is submitted by learned counsel
for applicants that no prima facie case is
made out against the applicants. They
have falsely been implicated for the
purpose of harassment and humiliation.
Magistrate has not applied its mind in
passing the impugned order. There is no
sufficient evidence in the case to summon
the applicants for facing trial. It is
submitted that complainant was not a lady
of good character, she lived in her
parental house at her own will just after
the marriage performed. Marriage is not
consummated, despite that she gave birth
to a male child as a result of adultery. It is
further submitted by him that applicant
no. 1 Jitesh Kumar Gupta filed a divorce
petition in the family court concerned
agaisnt the complainant and just to escape
from legal proceeding of that divorce
petition, complainant filed the impugned
complaint.
Applicants
prayed
for
quashing the impugned complaint.

7.

Learned
AGA
for
State
vehemently opposed the prayer for
quashing the impugned order as well as
complaint
case
and
submitted
that
130 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage of Pooja Rani and applicant no.
1 Jitesh Kumar Gupta is admitted.
Applicant
no.
1
stigmatized
upon
character of his wife and disputed the
parentage of his son. Applicants tortured
and ill-treated the complainant, therefore,
complainant filed the complaint case in
which Magistrate after making inquiry
rightly summoned the accused persons for
facing trial.

8. I have considered the rival
submissions made by the parties and
perused the records.

9. Before I enter into the facts of the
present case it is necessary to consider the
ambit and scope of jurisdiction under
Section 482 Cr.P.C. vested in the High
Court. Section 482 Cr.P.C. saves the
inherent power of the High Court to make
such orders as may be necessary to give
effect to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice.

10. It is settled that the power under
Section 482 Cr.P.C. is not to be exercised
in a routine manner, but it is for limited
purposes, namely, to give effect to any
order under the Code, or to prevent abuse
of process of any Court or otherwise to
secure ends of justice.

11. Time and again, Apex Court and
various High Courts, have reminded when
exercise of power under Section 482
Cr.P.C. would be justified, which cannot
be placed in straight jacket formula, but
one thing is very clear that it should not
preempt a trial and cannot be used in a
routine manner so as to cut short the
entire process of trial before the Courts
below. If from a bare perusal of first
information report or complaint, it is
evident that it does not disclose any
offence at all or it is frivolous, collusive
or oppressive from the face of it, the
Court may exercise its inherent power
under Section 482 Cr.P.C. but it should be
exercised sparingly. This will not include
as to whether prosecution is likely to
establish its case or not, whether the
evidence in question is reliable or not or
whether on a reasonable appreciation of
it, accusation would not be sustained, or
the other circumstances, which would not
justify exercise of jurisdiction under
Section 482 Cr.P.C. (See : State of
Haryana and others Vs. Ch. Bhajan Lal
and others 1992 Supp (1) SCC 335,
Popular Muthiah Vs. State represented
by Inspector of Police (2006) 7 SCC
296, Hamida vs. Rashid @ Rasheed and
Ors. (2008) 1 SCC 474, Dr. Monica
Kumar and Anr. vs. State of U.P. and
Ors. (2008) 8 SCC 781, M.N. Ojha and
Ors. Vs. Alok Kumar Srivastav and
Anr. (2009) 9 SCC 682, State of A.P. vs.
Gourishetty Mahesh and Ors. JT 2010
(6) SC 588 and Iridium India Telecom
Ltd. Vs. Motorola Incorporated and
Ors. 2011 (1) SCC 74).

12. In State of Haryana and others
v. Bhajan Lal and others, 1992 Supp (1)
SCC
335,
Court
has
elaborately
considered the scope and ambit of Section
482 Cr.P.C. Although in the above case
Court was considering the power of the
High Court to quash the entire criminal
proceeding including the FIR, the case
arose out of an FIR registered under
Section 161, 165 IPC and Section 5(2) of
the Prevention of Corruption Act, 1947.
Court elaborately considered the scope of
Section 482 Cr.P.C./ Article 226 of the
Constitution of India in the context of
quashing the proceedings in criminal
investigation.
After
noticing
various
4 All. Jitesh Kumar Gupta & Ors. Vs. State of U.P. & Anr.
131
earlier pronouncements of Court, Court
enumerated certain Categories of cases by
way of illustration where power under
Section 482 Cr.P.C. can be exercised to
prevent abuse of the process of the Court
or secure ends of justice. Paragraph 102
which enumerates 7 categories of cases
where power can be exercised under
Section 482 Cr.P.C. are extracted as
follows:

"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
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."

13. In Priya Vrat Singh and others
vs. Shyam Ji Sahai, 2008 (8) SCC 232,
Court observed that the inherent power
should not be exercised to stifle a
132 INDIAN LAW REPORTS ALLAHABAD SERIES
legitimate prosecution. The High Court
being the highest court of a State should
normally refrain from giving a primafacie decision in a case where the entire
facts are incomplete and hazy, more so
when the evidence has not been collected
and produced before the Court and the
issues involved, whether factual or legal,
are of magnitude and cannot be seen in
their true perspective without sufficient
material. Of course, no hard-and-fast rule
can be laid down in regard to cases in
which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage.

14. In Fakhruddin Ahmad v. State
of Uttaranchal, reported in, (2008) 1
SCC 157, the Court held that :

"20. So far as the scope and
ambit of the powers of the High Court
under Section 482 of the Code is
concerned, the same has been enunciated
and reiterated by this Court in a catena of
decisions and illustrative circumstances
under which the High Court can exercise
jurisdiction in quashing the proceedings
have been enumerated. However, for the
sake of brevity, we do not propose to make
reference to the decisions on the point. It
would suffice to state that though the
powers possessed by the High Court
under the said provision are very wide but
these should be exercised in appropriate
cases, ex debito justitiae to do real and
substantial justice for the administration
of which alone the Courts exist. The
inherent powers possessed by the High
Court are to be exercised very carefully
and with great caution so that a legitimate
prosecution is not stifled. Nevertheless,
where the High Court is convinced that
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 or where the
allegations made in the F.I.R. or the
complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused, the
powers of the High Court under the said
provision should be exercised."

15. In the present case marriage of
applicant no. 1 Jitesh Kumar Gupta with
opposite party no.2 Smt. Pooja Rani is a
admitted fact and applicants could not
dispute the fact of marriage. Evidently,
applicant no. 1 Jitesh Kumar Gupta filed
divorce petition under Section 13 of
Hindu Marriage Act before Principal
Judge Family Court, Varanasi against
complainant Pooja Rani seeking a decree
of nullity of marriage (Annexure-1) in
which in paragraph no. 22, he admitted
that there is no consummation of
marriage. Despite that Pooja Rani gave a
birth to a male child in her parental house
as a result of adultery because she was
living in her parental house since
11.10.2016.
Thus,
applicant
no.
1
stigmatized character of his wife and
parentage of his own son which itself
amount to cruelty to his own wife.

16. The allegation levelled against
each other can be adjudicated only after
the evidence and truthfulness of allegation
cannot be considered in the proceeding
under Section 482 Cr.P.C. before this
Court and trial must go on.

17. From perusal of allegations
made in complaint, statement of witnesses
under Sections 200 and 202 Cr.P.C., it
4 All. Salim Vs. State of U.P.
133
cannot be said that no prima facie
evidence
or
sufficient
ground
for
proceeding is there. At the time of passing
summoning order, Magistrate is only to
see prima facie evidence and sufficient
ground for proceeding.

18. Application under Section 482
Cr.P.C. is accordingly dismissed.
----------
(2019)12 ILR A133

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2019

BEFORE
THE HON'BLE VIVEK KUMAR SINGH, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
11646 of 2007

Salim ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Anil Mullick

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

A. Criminal Law - U.P. Gangster & AntiSocial Activities (Prevention) Act, 1986 -
Sections 2/3 - Cr.P.C - Section 403 &
Section 482 - Implication on the basis of
a single case -The trial of the said case
commenced and after the trial the
applicant
was
acquitted
-
The
proceedings under the Gangsters Act are
not independent proceedings. There is
only
one
case
shown
against
the
applicant in the gang chart in which the
applicant
was
acquitted
by
the
competent
Court
and
therefore
his
implication and trial under Section 2/3 of
the Gangsters Act was not justified. (Para
14,15 & 16)

Application u/s 482 Cr.P.C allowed. (E-3)
List of cases cited: -

1. Pritam Singh & anr. Vs. St. of Punj., AIR,
1956 Supreme Court 415

2. N.R. Ghosh Vs. the St. of W.B, AIR 1960
Supreme Court (SC) 239

3. Manipur Admin., Manipur Vs. Thokchon
Veere Singh, AIR 1965 (SC) 87

4. Lalta & ors. Vs. St. of U.P., AIR 1970 (SC)
1381

5. Municipal Corp. of Delhi vs. Shiv Singh 1971
(1) SCC 422

6. Bhagat Ram Vs. St. of Raj. (1972) 2 SCC
466

7. Masood Khan Vs. St. of U.P. (1974) 3 SCC
469

8. V.K. Agrawal, Assist. Collector of Customs
Vs. Vasant Raj Bhagwan Ji Bhatia & ors,
(1988) 3 SCC 467

9. Kolla Vira Raghav Rao vs. Gorantla
Vlalalalalal Rao, (2011) 2 SCC 703

(Delivered by Hon'ble Vivek Kumar
Singh, J.)

1. Heard Sri Anil Mullick learned
counsel for the applicant and Sri Abhinav
Prasad, learned A.G.A. on behalf of the
state.

2. This 482 Cr.P.C. application has
been preferred for quashing the charge
sheet No.117 dated 13.9.2001, under
Section 2/3 The U.P. Gangster & Anti
Social
Activities
(Prevention)
Act,
1986,Police Station Kotwali, District
Meerut, pending in the Court of learned
Special Judge Gangster Act, Meerut.

3. The facts of the case are that a
first information report was lodged