# Kismati & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 1 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Application u/s 482 No. 23 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kismati-ors-v-state-of-u-p-anr-opp-parties-51134
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
Indian Penal Code, 1860 - Section - 323,
504 & 506 - Application u/s 482 - for quashing
the entire criminal proceedings - during
pendency of a Civil dispute between the parties
- an incident u/s 323, 504, 506 was took place
- FIR - not registered - complaint was filed -
controverted allegations - final report - protest
petition - allowed - complaint case registered -
Statement recorded - summoned issued - plea
taken that proceedings have been instituted
maliciously because of a property dispute is
between the parties - court observed that - the
power of quashing a criminal proceedings
should be exercise very sparingly and with
circumspection and that too in the rarest of rare
cases and this 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 - court held
that, there is sufficient evidence for prosecution
of the applicants and it cannot be said at this
stage that the proceedings are liable to be
quashed for the reason that the same have
been maliciously instituted and that can only be
decided after the parties adduce in support of
their respective cases - accordingly, Application
is dismissed. (Para -10, 13)

Application Dismissed. (E-11)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

1 All. Kismati & Ors. Vs. State of U.P. & Anr.
255
the compliant or not. When the application
is pending consideration of the court, the
police is not expected to carry out the
investigation into the allegations levelled in
the application filed before the court,
without a direction to this effect being
issued by the court.

10. The police may investigate a
cognizable offence under Section 156(1),
after registration of an F.I.R under Section
154 Cr.P.C but without registration of an
F.I.R, the police cannot initiate any
investigation. When no F.I.R was registered
and merely an application under Section
156(3) was filed, investigation can be
carried out under Section 156(3) Cr.P.C
only under an order passed by a Magistrate.
Therefore, the police has acted beyond
authority in carrying out an investigation
and submitting a report to the Magistrate
that
the
allegations
levelled
in
the
complaint could not be established.

11. In the case of Central Bureau of
Investigation vs. Aryan Singh Etc., 2023
SCC Online 379, the compliant has been
registered and the applicant has been
summoned to face the trial, he can raise all
the pleas available to him and submit
evidence in his defense and the correctness
of the allegations levelled in the application
will be decided by the trial court after the
parties have lead their evidence in support
of their respective case. While deciding an
application under Section 482 Cr.P.C, this
court cannot go into correctness of the
allegation and the application cannot be
allowed on the ground that the allegations
are false.

12. In view of the aforesaid
discussion, the application lacks merits and
the same is accordingly rejected.
----------
(2024) 1 ILRA 255
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 23 of 2024

Kismati & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Aditya Tiwari, Deepranjan Pandey

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
Indian Penal Code, 1860 - Section - 323,
504 & 506 - Application u/s 482 - for quashing
the entire criminal proceedings - during
pendency of a Civil dispute between the parties
- an incident u/s 323, 504, 506 was took place
- FIR - not registered - complaint was filed -
controverted allegations - final report - protest
petition - allowed - complaint case registered -
Statement recorded - summoned issued - plea
taken that proceedings have been instituted
maliciously because of a property dispute is
between the parties - court observed that - the
power of quashing a criminal proceedings
should be exercise very sparingly and with
circumspection and that too in the rarest of rare
cases and this 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 - court held
that, there is sufficient evidence for prosecution
of the applicants and it cannot be said at this
stage that the proceedings are liable to be
quashed for the reason that the same have
been maliciously instituted and that can only be
decided after the parties adduce in support of
their respective cases - accordingly, Application
is dismissed. (Para -10, 13)

Application Dismissed. (E-11)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

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

2. Central Bureau of Investigation Vs Aryan
Singh etc. 2023 SCC Online SC 379.no Case
referred.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Aditya Tiwari, the
learned counsel for the applicants, Sri
Anant Pratap Singh, the learned AGA for
the State and perused the record.

2. By means of the instant application
filed under Section 482 Cr.P.C., the
applicants have sought quashing of entire
proceedings of Criminal Complaint Case
No. 20685 of 2022 "Mayaram v. Rajveer
Yadav & Others", arising out of the charge
sheet Case Crime/FIR No. 179/2021 under
Sections 323, 504 & 506 IPC, and final
report dated 27.12.2021, Police Station
Hanswar,
District
Ambedkar
Nagar,
pending in the Court of Civil Judge (Jr.
Div.)/FTC/
Additional
Chief
Judicial
Magistrate, Ambedkar Nagar including the
impugned
summoning
order
dated
20.10.2023.

3. The FIR lodged on 26.11.2021 in
furtherance of an application under Section
156 (3) Cr.P.C. filed on 30.06.2021 against 5
persons, including the applicants, alleged that
a property dispute is going on between the
informant and the applicant no. 2, due to
which reason the accused persons came to the
informant's house and started abusing him.
When the informant opposed it, on the
exhortation of the applicant nos. 1 and 4, the
applicant no. 2 pushed the informant to the
ground and he and another accused Beenu
Yadav had beaten him with kicks and fists.
When the informant's daughter-in-law tried
to save him, the accused persons beaten her
also and snatched away a chain from her
neck. The FIR further stated that the
informant had called the Police by dialing
112. The police had taken both the parties to
the police station but neither the informant's
report was registered, nor was he and his
daughter-in-law examined medically. On
15.05.2021, the informant got himself and his
daughter-in-law medically examined and
thereafter he sent an application to the
Superintendent f Police through registered
post and when no action was taken on it, he
filed the application under Section 156 (3)
Cr.P.C.

4. The medico-legal examination
report of the informant mentions complaint
of pain over chest and a contusion over left
side of back of scapula. The medico legal
examination report of the informant's
daughter-in-law Sarita Pal mentions a
contusion on right side of her face and
complaint of pain.

5. The injured persons had supported
the FIR allegations in their statements
recorded during investigation. However,
some villagers had stated that no such
incident had taken place. The investigating
officer had submitted a final report on
27.12.2021. The informant filed a protest
petition. The same was allowed and was
treated as a complaint. Statements were
recorded under Sections 200 and 202
Cr.P.C. Besides the injured persons, an
independent
person
has
also
given
statement under Section 202 Cr.P.C. in
support of the complaint allegations.
Thereafter
the
applicants
have
been
summoned to face the trial.

6. The learned counsel for the
applicant has submitted that the FIR has
1 All. Kismati & Ors. Vs. State of U.P. & Anr.
257
been lodged on false allegations because of
a property dispute between the parties and
the proceedings have been maliciously
instituted. He has placed reliance on the
judgment of the Hon'ble Supreme Court in
State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335, wherein the Hon'ble
Supreme Court has held 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.

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
258 INDIAN LAW REPORTS ALLAHABAD SERIES
inherent powers do not confer an arbitrary
jurisdiction on the court to act according to
its whim or caprice."

7. The learned counsel for the
applicants submits that the present case is
covered by clauses (3) and (7) of para 102.

8. The FIR in the present case
categorically states that the accused persons
had abused and beaten up the informant
and his daughter-in-law, both of whom had
suffered injuries in the incident. The FIR
also alleges that the accused persons had
snatched away a chain from the neck of the
informant's
daughter-in-law.
The
uncontroverted allegations clearly make out
commission of cognizable offences by the
accused persons. The injured person and an
independent witness have supported the
allegations in their statements recorded by
the trial Court under Sections 200 and 202
Cr.P.C. The allegations are also supported
by the medico-legal examination report of
the complainant and his daughter-in-law.
Therefore, the submission of the learned
counsel for the applicants that the present
case is covered by clause (3) of para 102 of
Bhajan Lal's case, is entirely misconceived
and the same is accordingly turned down.

9. The next submission of the learned
counsel for the applicant is that the
proceedings
have
been
instituted
maliciously because of a property dispute
between the parties.He has submitted that
the reason for false implication is that
Saurabh Pal, son of the informant Maya
Ram Pal had made an application for
claiming a right of way from the land
recorded in the name of the applicant no. 1
- Kismati, which claim was rejected by
means of an order dated 09.12.2020.
Thereafter, he persisted with this claim,
which was again rejected on 21.12.2020
and 29.01.2021. Thereafter the applicant
no. 1 had filed a suit against the informant
and other persons for perpetual injunction
which has been registered as Suit No. 571
of 2020 in the Court of Civil Judge (Senior
Division), Tanda, Ambedkar Nagar and the
FIR has been lodged maliciously due to the
aforesaid civil dispute.

10. As has been held in Bhajan Lal
(Supra), 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 this 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.

11.

In
Central
Bureau
of
Investigation versus Aryan Singh etc.,
2023 SCC OnLine SC 379, the Hon'ble
Supreme Court was dealing with an appeal
filed against a judgment and order by
which the High Court of Punjab and
Haryana, in exercise of the powers under
Section482Cr. P.C., had quashed the
criminal proceedings. Initially, the accused
Aryan Singh was not named in the FIR.
However,
after
conclusion
of
the
investigation, the charge-sheet came to be
filed against the said Aryan Singh also and
he was included as one of the accused. The
High Court had quashed the entire criminal
proceedings
by
observing
that
the
allegations/charges against the accused had
not been proved and that the prosecution
was malicious. Allowing the appeal, the
Hon'ble Supreme Court held that: -

"10.From the impugned common
judgment and order passed by the High
Court, it appears that the High Court has
dealt with the proceedings before it, as if,
the High Court was conducting a mini trial
1 All. Ramesh Kumar Vs.State of U.P. & Anr.
259
and/or the High Court was considering the
applications against the judgment and
order passed by the learned Trial Court on
conclusion of trial. As per the cardinal
principle of law, at the stage of discharge
and/or
quashing
of
the
criminal
proceedings, while exercising the powers
under Section482Cr. P.C., the Court is not
required to conduct the mini trial. The High
Court in the common impugned judgment
and order has observed that the charges
against the accused are not proved. This is
not
the
stage
where
the
prosecution/investigating
agency
is/are
required to prove the charges. The charges
are required to be proved during the trial
on the basis of the evidence led by the
prosecution/investigating
agency.
Therefore, the High Court has materially
erred in going in detail in the allegations
and the material collected during the
course of the investigation against the
accused, at this stage. At the stage of
discharge and/or while exercising the
powers under Section482Cr. P.C., the Court
has a very limited jurisdiction and is
required
to
consider
"whether
any
sufficient material is available to proceed
further against the accused for which the
accused is required to be tried or not".

12. In Aryan Singh (Supra), the
High Court had also recorded that the
initiation
of
the
criminal
proceedings/proceedings was malicious.
The Hon'ble Supreme Court held that: -

"the High Court has erred in
observing at this stage that the initiation of
the criminal proceedings/proceedings is
malicious.
Whether
the
criminal
proceedings was/were malicious or not, is
not required to be considered at this stage.
The same is required to be considered at
the conclusion of the trial. In any case, at
this stage, what is required to be
considered is a prima facie case and the
material collected during the course of the
investigation, which warranted the accused
to be tried."

13. In the present case, when there is prima
facie material to establish the allegations
and a care is made out for trial of the
accused persons, the proceedings cannot be
quashed holding the same to have been
instituted maliciously. The property dispute
between the parties can be a cause for false
implication of the applicants but at the
same time it can also be a motive for
commission of the offence. When the
informant and his daughter-in-law have
suffered injuries in the incident and they
have supported the FIR allegations by their
statements, which is also supported by the
medico legal examination report and the
statement of an independent witness, there
is sufficient evidence for prosecution of the
applicants and it cannot be said at this stage
that the proceedings are liable to be
quashed for the reason that the same have
been maliciously instituted. Whether the
proceedings
have
been
instituted
maliciously, is a question that can only be
decided after the parties adduce evidence in
support of their respective cases.

14. In view of the foregoing
discussion, the application lacks merit and
the same is dismissed.
----------
(2024) 1 ILRA 259
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 482 No. 358 of 2024