# Kaushal Kishore Mishra & Ors v. State of U.P

- **Citation:** Application U/S 482/378/407 Cr.P.C. No. 3651 of 2012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-16
- **Case number:** Application U/S 482/378/407 Cr.P.C. No. 3651 of 2012
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushal-kishore-mishra-ors-v-state-of-u-p-46370
- **Pages:** 10

## Headnote

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 147, 323, 336,
296, 504, 505 (3), 506 IPC - accused
applicants sustained injuries on a
particular date (21.11.2008 ) - a
matter of evidence - At this stage, it
cannot be said that no incident has
taken place or no offence has been
committed and there is no evidence
whatsoever
-
Whether
accused
defence is justified or not is not to be
examined
at
this
stage
-
The
allegations being factual in nature can
be decided only after evidence is
recorded in trial- no findings can be
recorded about veracity of allegations
at
this
juncture
in
absence
of
evidence - no interference under
Section
482
Cr.P.C.
would
be
justified.(Para-10,11,28)

Seven accused applicants, have challenged
Charge Sheet No. 358A of 2008 dated
06.07.2009 in Case No.1713 of 2009 (Case
Crime No. 827 A of 2008) under Sections 147,
323, 336, 296, 504, 505 (3), 506 IPC, and the
entire proceedings in the aforesaid case pending
in the Court of Judicial Magistrate Second -
Applicants have also requested that final report
submitted by police in Case Crime No.
827A/2008, under Sections 147, 323, 336, 296,
504, 505 (3), 506 IPC be accepted.(Para-1)

HELD:- 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
Cr.P.C. 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.(Para-17)

Application u/s 482 Cr.P.C. dismissed.
(E-7)

List Of Cases Cited:-
3-5 All. Kaushal Kishore Mishra & Ors. Vs. State of U.P.
1589

## Text

1588 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant, therefore considering the
principles of statutory interpretation even
victim has to file appeal against acquittal in
a case constituted upon complaint, before
High Court only. This will not only avoid
uncertainty but will also serve the purpose
of the enactment.

52. Registrar General of this Court is
directed to ensure the circulation of this
order amongst all the judicial officers in the
State for their guidance.

53. Let a copy of this order be also
sent to the Chief Secretary, Principal
Secretary (Law) & Legal Remembrancer,
Government of U.P. Lucknow and Stamp
Reporter of this Court for taking necessary
follow up action.

54. Let the records of these cases be
accordingly placed before the respective
Single Judge as per roster for final disposal.
----------
(2020)03-05ILR A1588
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482/378/407 Cr.P.C. No. 3651
of 2012

Kaushal Kishore Mishra & Ors.
 ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Arun Sinha, Alok Srivastava

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections 147, 323, 336,
296, 504, 505 (3), 506 IPC - accused
applicants sustained injuries on a
particular date (21.11.2008 ) - a
matter of evidence - At this stage, it
cannot be said that no incident has
taken place or no offence has been
committed and there is no evidence
whatsoever
-
Whether
accused
defence is justified or not is not to be
examined
at
this
stage
-
The
allegations being factual in nature can
be decided only after evidence is
recorded in trial- no findings can be
recorded about veracity of allegations
at
this
juncture
in
absence
of
evidence - no interference under
Section
482
Cr.P.C.
would
be
justified.(Para-10,11,28)

Seven accused applicants, have challenged
Charge Sheet No. 358A of 2008 dated
06.07.2009 in Case No.1713 of 2009 (Case
Crime No. 827 A of 2008) under Sections 147,
323, 336, 296, 504, 505 (3), 506 IPC, and the
entire proceedings in the aforesaid case pending
in the Court of Judicial Magistrate Second -
Applicants have also requested that final report
submitted by police in Case Crime No.
827A/2008, under Sections 147, 323, 336, 296,
504, 505 (3), 506 IPC be accepted.(Para-1)

HELD:- 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
Cr.P.C. 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.(Para-17)

Application u/s 482 Cr.P.C. dismissed.
(E-7)

List Of Cases Cited:-
3-5 All. Kaushal Kishore Mishra & Ors. Vs. State of U.P.
1589
1. Md. Allauddin Khan Vs. St. of Bihar & ors. Criminal
Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.)
No.1151 of 2018)

2. St. of M.P. Vs. Yogendra Singh Jadaun & anr.,
Criminal Appeal No. 175 of 2020

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

4. Google India Pvt. Ltd. Vs. Visakha Industries and
ors. , AIR 2020 SC 350

5. Jeffrey J. Diermeier & ors., Vs. St. of W.B. and ors.,
2010 (6) SCC 243

6. Som Mittal Vs. St. of Karnataka, 2008 (3) SCC 753

7. Lakshman vs. St. of Karnataka & ors., 2019 (9)
SCC 677

8. Chilakamarthi Venkateswarlu & ors. Vs. St. of A.P.
& ors. AIR 2019 SC 3913

9. Zandu Pharmaceuticals Works Ltd. & ors. vs Mohd.
Sharaful Haque & ors., 2005 (1) SCC 122

10. M.A.A. Annamalai Vs. St. of Karnataka & ors.,
2010 (8) SCC 524

11. Sharda Prasad Sinha Vs. St. of Bihar, AIR 1977
SC 1754

12. Nagawwa Vs. Veeranna Shivalingappa Konjalgi &
ors., 1976 AIR 1976 SC 1947

13. Rakhi Mishra Vs. St. of Bihar & ors., 2017 (16)
SCC 772

14. Sonu Gupta Vs. Deepak Gupta & ors., 2015 (3)
SC 424

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

16. Dy. Chief Controller of Imports & Exports v.
Roshanlal Agarwal & ors., (2003) 4 SCC 139

17. U. P. Pollution Control Board vs. Mohan Meaking
Limited & ors., 2000 (3) SCC 745

18. Kanti Bhadra Shah Vs St. of W.B., 2001 SCC 722

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

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

21. Arun Singh and other Vs St. of U.P., Criminal
Appeal no.250 of 2020 (arising out of Special Leave
Petition (Crl.) No. 5224 of 2017)

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

1. By means of this application filed
under Section 482 of the Code of Criminal
Procedure (hereinafter referred to as "the
Cr.P.C."),
seven
accused
applicants,
namely, Kaushal Kishore Mishra, Smt.
Indrani Mishra, Kaushika Mishra, Shailja
Mishra,
Shailka
Mishra,
Kaushlendra
Mishra and Harsh Vardhan Verma, have
challenged Charge Sheet No. 358A of 2008
dated 06.07.2009 in Case No.1713 of 2009
(Case Crime No. 827 A of 2008) under
Sections 147, 323, 336, 296, 504, 505 (3),
506 IPC, Police Station Kotwali Nagar,
District Gonda and the entire proceedings
in the aforesaid case pending in the Court
of Judicial Magistrate Second, Gonda.
Applicants have also requested that final
report submitted by police in Case Crime
No. 827A/2008, under Sections 147, 323,
336, 296, 504, 505 (3), 506 IPC be
accepted.

2. Facts, in brief, giving rise to this
application are that a First Information
Report (hereinafter referred to as "FIR")
No. 90/09 registered as Case Crime No.
827A/2008, under Sections 147, 323, 336,
296, 504, 505 (3), 506 IPC, was lodged on
19.03.2009 at 05:40 P.M. at Police Station
Kotwali Nagar, District Gonda by Mohd.
Shabbir Khan son of Abdul Rajjak Khan
(hereinafter
referred
to
as
the
"Complainant"),
wherein
ten
accused
including all the applicants and others were
implicated
alleging
that
they
are
1590 INDIAN LAW REPORTS ALLAHABAD SERIES
resourceful persons indulged in unlawful
activities and also have political patronage.
They have unauthorisedly encroached upon
the land of Maszid Hanafia Madarsa
Islamia Mousul Ulma Warsi, Baharaich
Road, Gonda and have created a mound of
earth soil causing lot of inconvenience to
the people who used to go Madrasa for
study and offer Namaj in Maszid belong to
Muslim Community. Accused persons are
intending to raise unauthorised construction
on the disputed land which used to be
opposed by Complainant as well as other
respected persons of society and they also
put pressure upon authorities to make
impartial enquiry in the matter so that
communal
harmony
be
maintained.
Pursuant
thereto
police
made
an
investigation
and
after
perusal
of
government record, illegal possession of
accused persons was removed. A document
of compromise was also prepared and
signed by representatives of both parties
which included signatures of accused
persons.
Representatives
of
Muslim
Community were honestly following the
aforesaid compromise but accused and their
relatives used to talk senseless and tried to
find
out
an opportunity
to
weaken
Complainant and other representatives of
Muslim Community. On 21.11.2008 when
people had gone to offer Namaj, after
parking their cycles, accused persons
started to damage their cycles as also
throwing bricks and stones and started
riots. Hearing noise, members of Peace
Committee came to settle the matter but
accused
being
annoyed
attacked
collectively upon Syed Ali, Sonu, Babbu,
Mansoor Khan, Kallan Khan, Complainant
and others and also hit them with Lathi and
Danda causing injuries to several persons.
Complainant and others ran away to protect
themselves but accused continued to
threaten them of killing and evicting from
area itself. Accused with a common
intention
formed
unlawful
assembly,
entered Maszid and Madarsa to kill
Complainant and others, beat them inside
the Mosque and damaged goods kept in
Mosque, like, Clock, Chatai etc. They also
attempted to take away Rs. 630/- which
was a donation. Naib Secretary, Kallan
Khan tried to stop them from taking away
donation
box,
whereupon
accused
Kaushlendra hit on the chest of Kallan
Khan with his legs and forcibly taken away
donation box.

3. Police made investigation and
during course of investigation recorded
various
statements
including
that
of
Shabbir
Khan,
Complainant,
on
19.03.2009. On the same day Police also
recorded statements of Heera Lal Gupta
and Sheetla Bux Tripathi, who said that
accused Kaushlendra Mishra was with him
when he had gone to Court for some work
and in the afternoon he received an
information that Kaushlendra Mishra's
family members were assaulted by the
persons who had come to offer Namaz. The
witnesses and Kaushlendra Mishra rushed
to the house and found Kaushlendra
Mishra's father, aged about 70 years and
mother as well as sister in serious injured
condition. Sri Kaushal Kishore Mishra,
Smt. Indrani Mishra, Smt. Kaushaka
Mishra, Smt. Shalaja Mishra, Km. Shalaka
Mishra and Harsh Vardhan Verma were
medically examined on 21.11.2008 at
District Hospital Gonda and their medical
report containing injuries are Annexures-4
to 9 to the application. Smt. Indrani Mishra
also found to have suffered fracture in the
shaft of middle phalanx of right index
finger. Medical examination of Mansoor,
Mohd. Kallan Khan, Sonu, Syed Ali and
Babbu was held on 09.12.2008 wherein
also they found to have sustained injuries
3-5 All. Kaushal Kishore Mishra & Ors. Vs. State of U.P.
1591
and all where categorized by Doctors in
District Hospital, Gonda as simple injuries
caused by hard and blunt object about three
weeks back.

4. On 19.05.2009 investigation was
transferred to SIS, Bahraich vide order of
Deputy
Inspector
General
of
Police,
Devipatan and after transfer Investigating
Officer recorded statements of Babbu Ali,
Sonu, Monu, Kaleem, Shahjadey, Guddu
alias Shakoor, Nawab, Rajjoo, Lallan Khan
and Akbar Ali. Police submitted charge
sheet on 06.07.2009 against 10 accused
persons including all applicants under
Sections 147, 323, 336, 296, 504, 505 (3),
506 IPC.

5. It is contended that no case under
the aforesaid provisions is made out at all
and Police has submitted charge sheet in
hurried manner without making proper
investigation and charge sheet is founded
on no evidence at all.

6. Police, during investigation, also
recorded statements of Dr. Roop Chandra,
Chief Medical Superintendent, District
Hospital, Gonda who admitted that he
conducted
medical
examination
on
09.12.2008 and by mistake noticed duration
of injuries as three weeks though it was
only three days. Similar statement was
given by Dr. Ajeet Singh, Emergency
Medical Officer, District Hospital, Gonda,
who also conducted medical examination
of some injured persons on 09.12.2008.
Consequently,
a
Final
Report
was
submitted by Police on 17.12.2009 in Case
Crime No. 827A of 2008. Complainant
filed protest petition which was allowed by
Court below and applicants have been
summoned to face trial vide order dated
11.01.2010.

7. Learned counsel for applicants
submitted that as per own complaint of
Complainant, incident took place on
21.11.2008 and alleged injured persons of
Complainant side were examined on
09.12.2008, i.e., almost on 18th day while
the accused injured persons were examined
on 21.11.2008 itself and their injuries are
well supported by medical examination but
ignoring the same Magistrate has failed to
apply its mind that Doctors who examined
Complainant's injured persons mentioned
duration of their injuries as three weeks
while in statement recorded by Police they
clearly said that duration was only three
days hence Complainant's story was
apparently false, still Magistrate has taken
cognizance
and
summoned
applicants
which is nothing but a sheer gross abuse of
process of law.

8.

Learned
A.G.A.,
however,
submitted that statements of two Doctors
that they mistakenly mentioned duration of
three weeks though it was only three days,
is subject to further examination in
evidence as it is not probable that when
more than one medical officer conducted
medical examination, both committed same
mistake with respect of duration of injuries
and at this stage, therefore, defence of
applicants cannot be examined.

9. I have gone through the record and
rival submissions. It is no doubt true that
injured witnesses have confirmed FIR story
that they sustained injuries on 21.11.2008
and the factum that injuries were found on
the person/ persons named by Complaint
also cannot be doubted but further question
is, "whether they sustained injuries on
21.11.2008 or just three days earlier when
medical examination was conducted on
09.12.2008".
1592 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Further, accused applicants
sustained injuries on 21.11.2008 is also a
matter of evidence but atleast this much is
clear that some incident took place on
21.11.2008. As per own showing of
applicants, they sustained injuries and not
Complainant's named persons. If there was
a cross case, who was aggressor, who
started dispute, who attacked first, is all a
matter of evidence. At this stage, it cannot
be said that no incident has taken place or
no offence has been committed and there is
no evidence whatsoever. Whether accused
defence is justified or not is not to be
examined at this stage. The allegations
being factual in nature can be decided only
after evidence is recorded in trial.

11. In view of settled legal
proposition, no findings can be recorded
about veracity of allegations at this juncture
in absence of evidence. Apex Court has
highlighted that jurisdiction under Section
482 Cr.P.C. be sparingly/rarely invoked
with complete circumspection and caution.
Very recently in Criminal Appeal No.675
of 2019 (Arising out of S.L.P. (Crl.)
No.1151 of 2018) (Md. Allauddin Khan
Vs. The State of Bihar & Ors.) decided
on 15th April, 2019, Supreme 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)

12. 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.

13. 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 State of Haryana vs. Bhajan
Lal and others, 1992 Supp (1) SCC 335
was leading precedent and thereafter matter
has also been examined by even Larger
Benches.

14. In State of Haryana vs. Bhajan
Lal
and
others
(supra)
issue
of
jurisdiction of this Court under Section 482
3-5 All. Kaushal Kishore Mishra & Ors. Vs. State of U.P.
1593
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 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)

15. 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
1594 INDIAN LAW REPORTS ALLAHABAD SERIES
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)

16. 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.

17. Supreme Court in Jeffrey J.
Diermeier (supra) infact 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
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.

18. 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.

19.

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
3-5 All. Kaushal Kishore Mishra & Ors. Vs. State of U.P.
1595
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)

20. 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.

21. 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. (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
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.

22. 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.

23. However, it is also true that at the
stage of issuing process to the accused,
Magistrate is not required to record detailed
reasons. In U. P. Pollution Control Board
1596 INDIAN LAW REPORTS ALLAHABAD SERIES
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
:

"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)

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

25. 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
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
3-5 All. Smt. Anshu Goel & Anr. Vs. State of U.P. & Anr.
1597
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)

26. 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 by Supreme Court on 10.02.2020.

27. Reliance placed by learned counsel
for petitioner in Pepsi Foods Ltd (supra) on
the scope of Section 482 CrPC is also in
conformity with law as discussed above. I do
not find anything otherwise stated therein or
something which is different than what has
been discussed above, which may help
petitioner in a different manner. No doubt Court
said that summoning of accused in criminal
case is a serious matter and Criminal law cannot
be set into motion as a matter of course, but to
suggest that at the cognizance stage, defence
evidence can be looked into and assessed on
merit or it can be done by this Court when an
application under Section 482 CrPC is brought
to
this
Court
against
order
of
cognizance/summoning is neither legal nor
permissible. This argument is, therefore,
rejected.

28. In view of above discussion and facts
and circumstances, I do not find that any case
has been made out justifying interference at this
stage. It cannot be said that no incident has
taken place or there is no evidence whatsoever
to show that applicants have committed no
offence. Hence, no interference under Section
482 Cr.P.C. would be justified.

29. Application is accordingly dismissed.
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(2020)03-05ILR A1597
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482/378/407 No. 3716 of 2010

Smt. Anshu Goel & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants: