# Kunal Chawala v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-24
- **Case number:** Application U/S 482. No. 11542 of 2023
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunal-chawala-v-state-of-u-p-anr-50385
- **Pages:** 15

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 173(2) & 482 - Indian
Penal Code, 1860 - Sections 420 & 120-B -
UP Excise Act, 1910 - Sections 60, 63 &
70: - Application - for quashing the chargesheet and summoning order as well as entire
proceeding - recovery - arrest - investigation -
FIR - punishment of criminal conspiracy -
charge-sheet - summoning order - plea taken
that, company has not been made as an
accused - court finds that, illegal liquor was
being recovered which unloaded from the truck
and being stocked in his godown and same has
not come through legal channel - in the present
petition also the ownership of godown and the
recovery is not challenged - held, the argument
of the applicant that the godown is of the
company, the same is to be taken up in the trial
at the appropriate stage to show as to who is
the owner of the godown and whose material is
being stocked therein - the proposition of law
with regards to maintainability of a petition u/s
482 Cr.P.C. even at the stage of recording of
evidence in trial is not dispute at all but the
decision of the same would be in the facts and
circumstances
of
each
and
every
case
independently - therefore, proceeding on the
said ground itself cannot be quashed -
accordingly, Application is dismissed.
(Para - 24, 25, 26)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,919 of 49,217. This is a partial read: ask again with offset=39919 for what follows._

582 INDIAN LAW REPORTS ALLAHABAD SERIES
error in the order impugned, accordingly
the application u/s 482 is dismissed.

35. The Court below is directed to
proceed in accordance with law.
----------
(2023) 7 ILRA 582
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482. No. 11542 of 2023

Kunal Chawala ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Dileep Kumar Pandey, Sri Gopal S.
Chaturvedi

Counsel for the Opposite Parties:
G.A., Sri Shashi Kant Pandey

Criminal Law - Criminal Procedure Code,
1973 - Sections 173(2) & 482 - Indian
Penal Code, 1860 - Sections 420 & 120-B -
UP Excise Act, 1910 - Sections 60, 63 &
70: - Application - for quashing the chargesheet and summoning order as well as entire
proceeding - recovery - arrest - investigation -
FIR - punishment of criminal conspiracy -
charge-sheet - summoning order - plea taken
that, company has not been made as an
accused - court finds that, illegal liquor was
being recovered which unloaded from the truck
and being stocked in his godown and same has
not come through legal channel - in the present
petition also the ownership of godown and the
recovery is not challenged - held, the argument
of the applicant that the godown is of the
company, the same is to be taken up in the trial
at the appropriate stage to show as to who is
the owner of the godown and whose material is
being stocked therein - the proposition of law
with regards to maintainability of a petition u/s
482 Cr.P.C. even at the stage of recording of
evidence in trial is not dispute at all but the
decision of the same would be in the facts and
circumstances
of
each
and
every
case
independently - therefore, proceeding on the
said ground itself cannot be quashed -
accordingly, Application is dismissed.
(Para - 24, 25, 26)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Dayle De Souza Vs Government of India
through Deputy Chief Labour Commissioner &
anr.: AIR 2021 SC 5626.

2. Shueb Mahmood Kidwai @ Bobby Vs St. of
U.P.: (2021) (0) Supreme (All) 122,

3. Surinder Kumar Khanna Vs Intelligence
Officer Directorate of Revenue Intelligence:
(2018) 8 SCC 271,

4. Ratilal Bhanji Mithani Vs St. of Mah. & ors..:
(1979) 2 SCC 179,

5. R.P. Kapur Vs St. of Pun.: AIR 1960 SC 866;

6. St. of Har. & ors..Vs Bhajan Lal & ors..: 1992
Supp (1) SCC 335;

7. St. of Bihar Vs P. P. Sharma: 1992 Supp (1)
SCC 222;

8. Trisuns Chemical Industry Vs Rajesh Agarwal
& ors..: (1999) 8 SCC 686;

9. M. Krishnan Vs Vijay Singh & anr. : (2001) 8
SCC 645;

10. Zandu Pharmaceuticals Works Ltd. Vs
Mohammd Shariful Haque: (2005) 1 SCC 122;

11. M. N. Ojha Vs Alok Kumar Srivastava:
(2009) 9 SCC 682;

12. Joseph Salvaraj A. Vs St. of Guj. & ors..:
(2011) 7 SCC 59;

13. Arun Bhandari Vs St. of U. P. & ors..: (2013)
2 SCC 801;
7 All. Kunal Chawla Vs. State of U.P. & Anr.
583
14. Md. Allauddin Khan Vs St. of Bihar: (2019)
6 SCC 107;

15. Anand Kumar Mohatta & anr.Vs St. (NCT of
Delhi), Department of Home & anr.(2019) 11
SCC 706;

16. Rajeev Kourav Vs Balasaheb & ors..: (2020)
3 SCC 317;

17. Nallapareddy Sridhar Reddy Vs The St. of
Andhra Pradesh: (2020) 12 SCC 467,

18. Priti Saraf & anr. Vs St. of NCT of Delhi &
anr.: 2021 SCC Online SC 206,

19. Ramveer Upadhyay Vs St. of U.P. : 2022
SCC Online SC 484,

20. Daxaben Vs St. of Guj. : 2022 SCC Online
SC 936,

21. St. of Maharashtra Vs Sayyed Hassan
Sayyed Subhan : (2019) 18 SCC 145,

22. Kunwar Pal Singh Vs St. of U. P. : (2020) 14
SCC 331,

23. Shueb Mahmood Kidwai @ Bobby Vs St. of
U.P. : Criminal Misc. 482/378/407 No. 3044 of
2017, decided on 23.02.2021 : [(2021) 0
Supreme (All) 122].

(Delivered by Hon'ble Samit Gopal, J.)

1. List revised.

2. Heard Sri Gopal S. Chaturvedi, learned
Senior Advocate assisted by Sri Dileep Kumar
Pandey, learned counsel for the applicant and
Sri Shashi Kant Pandey, learned brief holder for
the State of U.P. and perused the records.

3. The present Criminal Misc. Application
U/S 482 Cr.P.C. has been filed by the applicant
Kunal Chawala with the following prayers:

"It is, therefore Most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow this
application and quash the Charge Sheet
dated
26.02.2022
and
cognizance/
summoning order dated 28.02.2022 as well
as entire proceeding in Case No. 11020 of
2022 (State Vs. Raman Jaiswal and others),
under Sections 420, 120-B IPC and Section
60, 63, 72 of U.P. Excise Act, arising out of
Case Crime No. 666 of 2021, Police
Station- Madhuban Bapudham, District
Ghaziabad, pending before the Court of
learned
Chief
Judicial
Magistrate,
Ghaziabad.

It is further prayed that this
Hon'ble Court may graciously be pleased
to stay the further proceeding of Case No.
11020 of 2022 (State Vs. Raman Jaiswal
and others), under Sections 420, 120-B IPC
and Section 60, 63, 72 of U.P. Excise Act,
arising out of Case Crime No. 666 of 2021,
Police Station- Madhuban Bapudham,
District Ghaziabad, pending before the
Court of learned Chief Judicial Magistrate,
Ghaziabad, during the pendency of the
present case, otherwise the applicant shall
suffer irreparable loss and injury, and/or
may pass such other and further order
which this Hon'ble Court may deem fit and
proper under the facts and circumstances
of the case."

4. The prosecution case as per the
First
Information
Report
lodged
on
30.12.2021 by Smt. Sheelabh Mishra the
Excise Inspector, Sector-3, Ghaziabad, the
opposite party no.2 under Sections 420,
120-B IPC and Section 60, 63, 72 of U.P.
Excise
Act,
1910,
Police
Station-
Madhuban Bapudham, District Ghaziabad
against the applicant Kunal Chawala,
Raman Jaiswal, Ramveer Singh, Sunil
Kumar, Lalji Yadav and Vipin Yadav on
the basis of a recovery memo of recovery
of 4809 cartons and 266 loose bottles of
584 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Made Foreign Liquor, arrest of four
accused persons and recovery of four
vehicles being Truck No. HR 55 X 0004,
Truck No. HR 68 C 5032, Ford Ecosport
DL 5 CR 468 and Hyundai i-20 UP 16 Z
0006 alleging therein that FIR No. 385 of
2021 was lodged in District Moradabad in
which Nagendra Yadav resident of Meerut
was apprehended transporting 40 bottles of
Indian Made Foreign Liquor. He disclosed
that the liquor was brought from the custom
godown of Kunal Chawla from Ghaziabad
and he supplies it illegally in various
Districts in Uttar Pradesh. For the supply,
Vipin Yadav who is the person of Kunal
Chawla
and
having
mobile
No.
8800482499 helps him and by calling on
the said number liquor can be called
anywhere. On the said information, the
District Excise Officer, Ghaziabad under
supervision of the first informant along
with Excise Inspectors and Enforcement
Officers of Excise Department of Meerut
formed a team. On the basis of information
received from Moradabad on 29.12.2021,
the said Officers reached the godown of
Kunal Chawla in P.S. Madhuban. The main
gate of the godown was open and two
trucks were standing inside from which
cartons of liquor was being kept inside.
Two persons met inside. On asking, they
disclosed their names as Raman Jaiswal
and Ramveer Singh. On further asking,
they disclosed that they were in the said
godown for Kunal Chawla and their work
is to get the cartons of liquor unloaded and
supplied to various places. On asking about
Vipin Yadav they refused to tell anything
but on checking their mobiles, the number
of Vipin Yadav was found in it and their
were regular calls on the mobile. On being
suspicious, the godown was searched
thoroughly. The papers with regards to the
material which was being unloaded from
the trucks was demanded which could not
be shown. The drivers of the truck
disclosed their names as Sunil Kumar and
Lalji. They also could not show the papers
of the material on demand. On asking for
license with regards to the liquor kept in
the godown, the persons could not show
any license and neither could produce any
documents with regards to the stock and the
details of it. From Truck No. HR 55 X
0048 Ballentine brand liquor was being
unloaded and on other truck No. HR 68 C
5032, 500 cartons of Red Label brand
liquor was present which was being
unloaded. The godown was then inspected
where liquor of various brands were found.
A list was then drawn by the said team of
75 Indian Made Foreign Liquor which in
total was in 4809 cartons and there were
266 loose bottles. The cartons were
inspected and in some cartons there was no
tag of FSSAI and mother company which
would go to show that the material did not
come through the legal channel. The
Government of India and the State
Government were incurring loss of customs
and excise duty. Apart from this, there was
different
batch
numbers
of
mother
company. Even the batch numbers and date
of manufacture were missing. On thorough
inspection, 50 plastic bags of white colour,
one blue colour plastic bag, one packet of
rubber band, 7 bundles of tape, one packet
of black polythene, one packet of blue
polythene, 180 empty boxes of Glenfiddich
and five seals which were used in boxes
were found. On further probe from the said
persons, they stated that they work for
Kunal Chawla and the liquor is transported
in black ploythenes to various places. In the
Ford Ecosport and Hyundai i-20 also liquor
was recovered. On probing Raman Jaiswal
and Ramveer Singh they disclosed that on
the instruction from godown of Kunal
Chawla delivery of liquor in various places
in the State and in various districts and also
7 All. Kunal Chawla Vs. State of U.P. & Anr.
585
in Ghaziabad is done without payment of
customs duty and excise duty. It is stated
that as such Kunal Chawla and other
persons are running a gang due to which
Government is being defrauded of its
customs duty and State Government is also
being defrauded of excise duty. Samples of
the material recovered was drawn and
recovery memo was prepared which was
given for lodging of the First Information
Report and the First Information Report
was thus lodged.

5. The investigation in the matter
concluded
and
a
charge
sheet
was
submitted against Raman Jaiswal, Ramveer
Singh, Sunil Kumar, Lalji Yadav and
Kunal Chawla (the present applicant) under
Sections 420, 120-B IPC and Section 60,
63, 63 of the Uttar Pradesh Excise Act,
1910.

6. The trial court vide its order dated
28.02.2022 took cognizance upon the said
charge sheet and summoned the applicant
Kunal Chawla and other accused persons to
face trial.

7. The applicant was granted
anticipatory
bail
vide
order
dated
08.02.2022 passed by the Sessions Judge,
Ghaziabad in Crl. Misc. Anticipatory Bail
Application No. 21 of 2022 (Kunal Chawla
Vs. State of U.P.).

8. The trial court vide its order dated
30.03.2023 framed charges against the
applicant under Sections 420, 120-B IPC
and Section 60, 63 of the Uttar Pradesh
Excise Act, 1910. The said charge was read
to the applicant-accused who pleaded not
guilty and claimed to be tried.

9. The trial then started as Criminal
Case No. 753 of 2022 (State of U.P. Vs.
Raman Jaiswal and others) in which the
statement of PW-1 the first informant
Sheelabh Mishra started to be recorded on
22.03.2023 which concluded on 04.05.2023
and then the statement of Akhilesh Verma
the Excise Inspector, Ghaziabad was
recorded as PW-2 which started on
11.04.2023 and is yet to be concluded.

10.

During
the
pendency
of
investigation, the applicant filed a writ
petition before this Court numbered as
Criminal Misc. Writ Petition No. 13402 of
2022 (Kunal Chawla Vs. State of U.P and 2
others)
for
quashing
of
the
First
Information Report with a further prayer to
not to arrest him in the case in which a
Division Bench of this Court vide order
dated 19.09.2022 directed that till the next
date of listing or till the submission of
police report under Section 173(2) Cr.P.C.
whichever is earlier, the respondents are
restrained to arrest the petitioner pursuant
to the impugned FIR subject to cooperation
in the on going investigation.

The present application under
Section 482 Cr.P.C. has thus been filed
with the prayers as aforesaid.

11. Learned counsel for the applicant
argued as follows:-

(i) Cognizance could not have
been taken by the trial court for offences
under Section 60, 63 of the Excise Act as
the same cannot be done on a police report.
As per Section 70 of the Excise Act,
cognizance can be taken on a complaint or
report of an Excise Officer only. The trial
against the applicant is void ab-initio as the
same cannot proceed.

(ii) No offence whatsoever under
Sections 420, 120-B IPC is made out.
There is no fraudulent act, no false
586 INDIAN LAW REPORTS ALLAHABAD SERIES
representation
and
there
is
nothing
dishonest which has come in evidence
which would make out a case against the
applicant.

(iii) The applicant Kunal Chawla
and his wife Ruchi Chawla are the
Directors of M/s Mehar Global Spirit
Private Ltd. The company has been
incorporated on 05.11.2018 under the
Companies Act, 2013 but the company has
not been made as an accused and as such
the Director of the company cannot be
prosecuted. Reliance has been placed upon
the judgment of the Apex Court in the case
of Dayle De Souza Vs. Government of
India through Deputy Chief Labour
Commissioner and another : AIR 2021
SC 5626.

(iv) If the case is of evasion of
customs and excise duty then the concerned
relevant authorities should have proceeded
as per law and should have taken action for
it but the charge as framed does not in any
manner show that the applicant is being
tried for it.

(v) A petition under Section 482
Cr.P.C. for quashing of the proceedings is
maintainable even if the trial has started
and some of the witnesses have been
examined as has been held by a Division
Bench of this Court in the case of Shueb
Mahmood Kidwai @ Bobby Vs. State of
U.P. : (2021) (0) Supreme (All) 122.

(vi) Reliance has been placed
upon the judgment of the Apex Court in the
case of Surinder Kumar Khanna Vs.
Intelligence
Officer
Directorate
of
Revenue Intelligence : (2018) 8 SCC 271
and while relying upon paragraph nos. 7, 8
and 14 it is argued that in so far as the
evidence against the applicant is concerned,
the same is only a confession of coaccused. The court may take the confession
into consideration but the same is not a
proof, there must be other evidence also to
corroborate it.

12. Per contra, learned counsel for the
State opposed the prayer for quashing and
argued as follows:

(i) The applicant is named in the
First Information Report. There is an
allegation that the applicant is the owner of
godown in question from where illicit
liquor has been recovered.

(ii) In so far as the ownership of
godown is concerned, the same has not
been disputed and even the material as has
been recovered has not been disputed.

(iii) The allegations in the First
Information Report prima facie make out a
case against the applicant.

(iv) In so far as the allegations of
the offences under the Indian Penal Code
are concerned, it is clear from the perusal
of the First Information Report that there is
an allegation that illegal/illicit liquor was
found for which the documents could not
be shown and even the liquor was not
having any tagging of FSSAI and mother
company which would go to show that the
same was not coming through genuine
channels. There is further an allegation that
the batch number and the date of
manufacture were also not mentioned. It is
submitted that even many empty boxes of
liquor were found. No satisfactory reply
was given by the persons there. It is
submitted that the proceedings are under an
Special
Act
and
general
law.
The
proceedings are not barred to continue
together.
7 All. Kunal Chawla Vs. State of U.P. & Anr.
587

(v) In so far as the argument of
the company not being made as an accused
is concerned and the proceedings be
quashed on the said ground is concerned,
prima facie it was found that godown was
under the ownership of the applicant and
whether the same was for the use of the
company or not, is a matter of trial.

(vi) The trial in the present matter
has started in which one witness has been
examined and the statement of the second
witness is being recorded. The quashing of
the proceedings at this stage, may not be in
the fitness of things as scuttling the trial at
this stage will not be proper.

13. After having heard learned
counsels for the parties and perusing the
records, it is evident that the applicant is
named in the First Information Report.
There are allegations against him that
illegal liquor was being unloaded from the
truck and being stocked in his godown. The
material as found in the godown was
deficient for certain necessary formalities
due to which a conclusion was drawn that
the same has not come through legal
channel. Even there was no explanation and
presentation of relevant documents by the
concerned persons with regards to the
same. In the present petition also the
ownership of godown and the recovery of
the material is not challenged. After
recovery of the material and arrest of some
of the accused, the First Information Report
was lodged after which the investigation
concluded and charge sheet was submitted
on which the trial court took cognizance
and summoned the applicant and other
accused persons. On appearance of the
applicant, the trial court framed charges
against him. The said charges were read to
the applicant to which he pleaded not guilty
and claimed to be tried. There was no
challenge of the order taking cognizance on
the charge sheet, summoning of the
applicant by the trial court and also to the
framing of charge against him but the only
things stated by him after framing of charge
was that he denies the charges and claims
to be tried. The trial started in which the
statement of PW-1 who is the first
informant has been recorded. The statement
of the other witness as PW-2 is being
recorded. Now at this stage, the present
petition has been filed for quashing of the
proceedings.

14. The Apex Court in the case of
Ratilal Bhanji Mithani Vs. State of
Maharashtra and others : (1979) 2 SCC
179 has held that after framing of charge
there cannot be a discharge but only an
acquittal can be done on a finding of not
guilty turning on the merits of the case. It
has been held as follows :-

"24. At the outset, let us have a
look at the relevant provisions of the Code
of
Criminal
Procedure,
1898, which
admittedly
governed
the
pending
proceedings in this case. The procedure for
trial of warrant cases by Magistrates is
given in Chapter XXI of that Code. The
present case was instituted on a criminal
complaint. Section 252 provides that in
such a case, the Magistrate shall proceed to
hear the complainant (if any) and take all
such evidence, as may be produced, in
support of the prosecution. Sub-section (2)
of that Section casts a duty on the
Magistrate to ascertain the names of
persons likely to be acquainted with the
facts of the case and to be able to give
evidence for the prosecution, and to
summon all such persons for evidence.
Section 253 indicates when and in what
circumstances
an
accused
may
be
discharged: It says:
588 INDIAN LAW REPORTS ALLAHABAD SERIES

"253. (1) If, upon taking all the
evidence referred to in Section 252, and
making such examination (if any) of the
accused as the Magistrate thinks necessary,
he finds that no case against the accused
has been made out which, if unrebutted,
would
warrant
his
conviction,
the
Magistrate shall discharge him.

(2) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded by such Magistrate, he considers
the charge to be groundless."

Section 254 indicates when and
in what circumstances a charge should be
framed. It reads:

"254. If, when such evidence and
examination have been taken and made, or
at any previous stage of the case, the
Magistrate is of opinion that there is ground
for presuming that the accused has
committed an offence triable under this
Chapter,
which
such
Magistrate
is
competent to try, and which, in his opinion
could be adequately punished by him, he
shall frame in writing a charge against the
accused."

Section 255 enjoins that the
charge shall then be read over and
explained to the accused, and he shall be
asked whether he is guilty or has any
defence to make. If the accused pleads
guilty, the Magistrate shall record that plea,
and may convict him thereon.

25. Section 256 provides that if
the accused refuses to plead or does not
plead, or claims to be tried, he shall be
required to state at the next hearing whether
he wishes to cross-examine any of the
witnesses for
the prosecution whose
evidence has been taken, and if he says he
so wants to cross-examine, the witnesses
named by him shall be recalled and he will
be allowed to further cross-examine them.
"The evidence of any remaining witnesses
for the prosecution shall next be taken" and
thereafter the accused shall be called upon
to enter upon and produce his defence.

26. Section 257 is not material.
Section 258(1) provides that if in any case
in which a charge has been framed the
Magistrate finds the accused not guilty, he
shall record an order of acquittal. Subsection (2) requires, where in any case
under this chapter the Magistrate does not
proceed in accordance with the provisions
of Section 349 or Section 562, he shall, if
he finds the accused guilty, pass sentence
on him in accordance with law.

27. From the scheme of the
provisions noticed above it is clear that in a
warrant case instituted otherwise than on a
police report, "discharge" or "acquittal" of
accused are distinct concepts applicable to
different stages of the proceedings in Court.
The
legal
effect
and
incidents
of
"discharge"
and
"acquittal"
are
also
different. An order of discharge in a
warrant case instituted on complaint, can be
made only after the process has been issued
and before the charge is framed. Section
253(1) shows that as a general rule there
can be no order of discharge unless the
evidence of all the prosecution witnesses
has
been
taken
and
the
Magistrate
considers for reasons to be recorded, in the
light of the evidence, that no case has been
made out. Sub-section (2) which authorises
the Magistrate to discharge the accused at
any previous stage of the case if he
considers the charge to be groundless, is an
exception to that rule. A discharge without
7 All. Kunal Chawla Vs. State of U.P. & Anr.
589
considering the evidence taken is illegal. If
a prima facie case is made out the
Magistrate must proceed under Section 254
and frame charge against the accused.
Section 254 shows that a charge can be
framed if after taking evidence or at any
previous stage, the Magistrate, thinks that
there is ground for presuming that the
accused has committed an offence triable
as a warrant case.

28. Once a charge is framed, the
Magistrate has no power under Section 227
or any other provision of the Code to
cancel
the
charge,
and
reverse
the
proceedings to the stage of Section 253 and
discharge the accused. The trial in a
warrant case starts with the framing of
charge; prior to it, the proceedings are only
an inquiry. After the framing of the charge
if the accused pleads not guilty, the
Magistrate is required to proceed with the
trial in the manner provided in Sections 254
to 258 to a logical end. Once a charge is
framed in a warrant case, instituted either
on complaint or a police report, the
Magistrate has no power under the Code to
discharge the accused, and thereafter, he
can either acquit or convict the accused
unless he decides to proceed under Section
349 and 562 of the Code of 1898 (which
correspond to Sections 325 and 360 of the
Code of 1973).

29.
Excepting
where
the
prosecution must fail for want of a
fundamental defect, such as want of
sanction, an order of acquittal must be
based upon a "finding of not guilty" turning
on the merits of the case and the
appreciation of evidence at the conclusion
of the trial.

30. If after framing charges the
Magistrate whimsically, without appraising
the evidence and without permitting the
prosecution to produce all its evidence,
"discharges" the accused, such an acquittal,
without
trial,
even
if
clothed
as
"discharge", will be illegal. This is
precisely what has happened in the instant
case. Here, the Magistrate, by his order
dated December 12, 1962, framed charges
against
Mithani
and
two
others.
Subsequently, when on the disposal of the
revision applications by Gokhale, J., the
records were received back he arbitrarily
deleted those charges and discharged the
accused, without examining the "remaining
witnesses" of the prosecution which he had
in the order of framing charges, said, "will
be examined after the charge"."

(emphasis supplied)

15. The situation is the same in the
present matter. After taking cognizance on
the chargesheet, framing of charges,
accused not pleading guilty and claiming to
be tried, the trial starting and one witness
has been examined whereas the statement
of the other prosecution witnesses is being
recorded, the applicant who is facing trial
comes
up
challenging
the
cognizance/summoning
order
dated
28.02.2022 as well as entire proceedings of
the trial at such a belated stage.

16. It has been held by the Apex
Court in the cases of R.P. Kapur Vs. State
of Punjab : AIR 1960 SC 866; State of
Haryana and Ors. Vs. Bhajan Lal and
Others : 1992 Supp (1) SCC 335; State of
Bihar Vs. P. P. Sharma : 1992 Supp (1)
SCC 222; Trisuns Chemical Industry Vs.
Rajesh Agarwal and Ors. : (1999) 8 SCC
686; M. Krishnan Vs. Vijay Singh & Anr.
:
(2001)
8
SCC
645;
Zandu
Pharmaceuticals
Works
Ltd.
Vs.
Mohammd Shariful Haque : (2005) 1
590 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC 122; M. N. Ojha Vs. Alok Kumar
Srivastava : (2009) 9 SCC 682; Joseph
Salvaraj A. Vs. State of Gujarat and Ors. :
(2011) 7 SCC 59; Arun Bhandari Vs.
State of Uttar Pradesh and Ors. : (2013) 2
SCC 801; Md. Allauddin Khan Vs. State
of Bihar : (2019) 6 SCC 107; Anand
Kumar Mohatta and Anr. Vs. State (NCT
of Delhi), Department of Home and Anr. :
(2019) 11 SCC 706; Rajeev Kourav Vs.
Balasaheb & others : (2020) 3 SCC 317;
Nallapareddy Sridhar Reddy Vs. The State
of Andhra Pradesh : (2020) 12 SCC 467,
that exercise of inherent power of the High
Court under Section 482 of the Code of
Criminal Procedure is an exceptional one.
Great care should be taken by the High
Court before embarking to scrutinise the
complaint/FIR/charge-sheet
in
deciding
whether the rarest of the rare case is made
out to scuttle the prosecution.

17. Further in the case of Priti Saraf
& anr. Vs. State of NCT of Delhi & anr. :
2021 SCC Online SC 206 the Apex Court
while considering the powers under Section
482 Cr.P.C. has held as follows:

"23. It being a settled principle of
law that to exercise powers under Section 482
CrPC, the complaint in its entirety shall have
to be examined on the basis of the allegation
made in the complaint/FIR/charge-sheet and
the High Court at that stage was not under an
obligation to go into the matter or examine its
correctness. Whatever appears on the face of
the complaint/FIR/charge-sheet shall be taken
into consideration without any critical
examination of the same. The offence ought
to
appear
ex
facie
on
the
complaint/FIR/charge-sheet
and
other
documentary evidence, if any, on record.

24. The question which is raised
for
consideration
is
that
in
what
circumstances and categories of cases, a
criminal proceeding may be quashed either
in exercise of the extraordinary powers of
the High Court under Article 226 of the
Constitution, or in the exercise of the
inherent powers of the High Court under
Section 482 CrPC. This has often been
hotly debated before this Court and various
High Courts. Though in a series of
decisions, this question has been answered
on several occasions by this Court, yet the
same still comes up for consideration and is
seriously debated.

25. In this backdrop, the scope
and ambit of the inherent jurisdiction of the
High Court under Section 482 CrPC has
been examined in the judgment of this
Court in State of Haryana and Others Vs.
Bhajan Lal and Others, (1992 Suppl (1)
SCC 335). The relevant para is mentioned
hereunder:-

"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
7 All. Kunal Chawla Vs. State of U.P. & Anr.
591
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."

26. This Court has clarified the
broad contours and parameters in laying
down the guidelines which have to be kept
in mind by the High Courts while
exercising inherent powers under Section
482 CrPC. The aforesaid principles laid
down by this Court are illustrative and not
exhaustive. Nevertheless, it throws light on
the circumstances and the situation which
is to be kept in mind when the High Court
exercises its inherent powers under Section
482 CrPC.

27.
It
has
been
further
elucidated recently by this Court in Arnab
Manoranjan
Goswami
Vs.
State
of
Maharashtra and Others, 2020 SCC
Online SC 964 where jurisdiction of the
High Court under Article 226 of the
Constitution of India and Section 482
CrPC has been analysed at great length.

28. It is thus settled that the
exercise of inherent power of the High Court
is an extraordinary power which has to be
exercised with great care and circumspection
before
embarking
to
scrutinise
the
complaint/FIR/charge-sheet
in
deciding
whether the case is the rarest of rare case, to
scuttle the prosecution at its inception."

18. In the case of Ramveer Upadhyay
Vs. State of U.P. : 2022 SCC Online SC
484 the Apex Court has held in paragraph
nos. 27, 38 and 39 that quashing of a criminal
case by exercising jurisdiction under Section
482 Cr.P.C. should be done in exceptional
cases only. Paragraphs 27, 38 and 39 are
quoted herein:
592 INDIAN LAW REPORTS ALLAHABAD SERIES

"27. Even though, the inherent
power of the High Court under Section 482
of the Cr.P.C., to interfere with criminal
proceedings is wide, such power has to be
exercised
with
circumspection,
in
exceptional
cases.
Jurisdiction
under
Section 482 of the Cr.P.C is not to be
exercised for the asking.

*****************************

38. Ends of justice would be
better served if valuable time of the Court
is spent on hearing appeals rather than
entertaining petitions under Section 482 at
an
interlocutory
stage
which
might
ultimately result in miscarriage of justice as
held in Hamida v. Rashid @ Rasheed and
Others, (2008) 1 SCC 474.

39. In our considered opinion
criminal proceedings cannot be nipped in
the bud by exercise of jurisdiction under
Section 482 of the Cr.P.C. only because the
complaint has been lodged by a political
rival. It is possible that a false complaint
may have been lodged at the behest of a
political
opponent.
However,
such
possibility would not justify interference
under Section 482 of the Cr.P.C. to quash
the criminal proceedings. As observed
above, the possibility of retaliation on the
part of the petitioners by the acts alleged,
after closure of the earlier criminal case
cannot be ruled out. The allegations in the
complaint constitute offence under the
Atrocities Act. Whether the allegations are
true or untrue, would have to be decided in
the trial. In exercise of power under Section
482 of the Cr.P.C., the Court does not
examine the correctness of the allegations
in a complaint except in exceptionally rare
cases where it is patently clear that the
allegations are frivolous or do not disclose
any
offence.
The
Complaint
Case
No.19/2018 is not such a case which should
be quashed at the inception itself without
further Trial. The High Court rightly
dismissed the application under Section
482 of the Cr.P.C."

19. Further in the case of Daxaben
Vs. State of Gujarat : 2022 SCC Online
SC 936 in para 49 the Apex Court has held
as under:

"49. In exercise of power under
section 482 of the Cr.P.C., 1973 the Court
does not examine the correctness of the
allegation in the complaint except in
exceptionally rare cases where it is patently
clear that the allegations are frivolous or do
not disclose any offence."

20. In so far as argument with regards
to the offences under the Excise Act, taking
cognizance and trying the applicant for it is
concerned, although it is strenuously
argued that the trial is bad in the eyes of
eye and is void ab-initio but in the case of
State of Maharashtra Vs. Sayyed Hassan
Sayyed Subhan : (2019) 18 SCC 145 it
has been held by the Apex Court that there
is no bar to a trial or conviction of an
accused under two different enactments.
The only bar is to the punishment of him
twice for the offence. It has been held as
under :

"7. There is no bar to a trial or
conviction of an offender under two
different enactments, but the bar is only to
the punishment of the offender twice for
the offence. Where an act or an omission
constitutes
an
offence
under
two
enactments,
the
offender
may
be
prosecuted and punished under either or
both enactments but shall not be liable to
be punished twice for the same offence.
7 All. Kunal Chawla Vs. State of U.P. & Anr.
593
[T.S. Baliah v. T.S. Rangachari, (1969) 3
SCR 65 : AIR 1969 SC 701] The same set
of
facts,
in
conceivable
cases,
can
constitute offences under two different
laws. An act or an omission can amount to
and constitute an offence under IPC and at
the same time, an offence under any other
law. [State of Bihar v. Murad Ali Khan,
(1988) 4 SCC 655 : 1989 SCC (Cri) 27]
The High Court ought to have taken note of
Section 26 of the General Clauses Act,
1897 which reads as follows:

"26. Provision as to offences
punishable
under
two
or
more
enactments.-Where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be
liable to be prosecuted and punished under
either or any of those enactments, but shall
not be liable to be punished twice for the
same offence."

8. In Hat Singh case [State of
Rajasthan v. Hat Singh, (2003) 2 SCC 152 :
2003 SCC (Cri) 451] this Court discussed
the doctrine of double jeopardy and Section
26 of the General Clauses Act to observe
that prosecution under two different Acts is
permissible if the ingredients of the
provisions are satisfied on the same facts.
While considering a dispute about the
prosecution of the respondent therein for
offences under the Mines and Minerals
(Development and Regulation) Act, 1957
and the Penal Code, this Court in State
(NCT of Delhi) v. Sanjay [State (NCT of
Delhi) v. Sanjay, (2014) 9 SCC 772 :
(2014) 5 SCC (Cri) 437] held that there is
no bar in prosecuting persons under the
Penal Code where the offences committed
by persons are penal and cognizable
offences. A perusal of the provisions of the
FSS Act would make it clear that there is
no bar for prosecution under IPC merely
because the provisions in the FSS Act
prescribe penalties. We, therefore, set aside
the finding of the High Court on the first
point."

21. Further in the case of Kunwar
Pal Singh Vs. State of Uttar Pradesh :
(2020) 14 SCC 331 it has been held by the
Apex Court that since the ingredients
constituting
offence(s)
in
both
the
enactments are different, prosecution under
both the enactments is permissible. It has
been held that all offences under any other
law shall be investigated, inquired into,
tried
under Cr.P.C.,
subject
to
any
enactment regulating the manner or place
of investigation, trial, etc. of such offences.
It is held as follows :-

"4. In the written submissions
filed by the appellant, a relatively new plea
and contention has been raised by relying
upon the judgments of this Court in
Belsund Sugar Co. Ltd. v. State of Bihar
[Belsund Sugar Co. Ltd. v. State of Bihar,
(1999) 9 SCC 620], Sharat Babu Digumarti
v. State (NCT of Delhi) [Sharat Babu
Digumarti v. State (NCT of Delhi), (2017) 2
SCC 18 : (2017) 1 SCC (Cri) 628] and
Suresh Nanda v. CBI [Suresh Nanda v.
CBI, (2008) 3 SCC 674 : (2008) 2 SCC
(Cri) 121] to urge that the MMDR Act,
1957 being a special statute, prosecution
for an offence under Section 379 IPC
would not be maintainable. The judgment
of this Court in State (NCT of Delhi) v.
Sanjay [State (NCT of Delhi) v. Sanjay,
(2014) 9 SCC 772 : (2014) 5 SCC (Cri)
437] , it is submitted, is distinguishable as
FIR for the offence against illegal sand
mining in Sanjay [State (NCT of Delhi) v.
Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC
(Cri) 437] was registered suo motu due to
non-production
of
any
document
to
establish mining rights and, therefore, the
594 INDIAN LAW REPORTS ALLAHABAD SERIES
ratio in that case would apply only to cases
of illegal mining where the mining lease
had already been revoked or there was no
subsisting mining lease.

5. We find the submission of the
appellant to be untenable. In Sanjay [State
(NCT of Delhi) v. Sanjay, (2014) 9 SCC
772 : (2014) 5 SCC (Cri) 437], a Division
Bench of this Court had decided the
appeals preferred against the conflicting
judgments of the Delhi High Court [Sanjay
v.