# Lal Bahadur Mishra & Ors v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-24
- **Case number:** Application U/S 482 No. 10465 of 2009
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-bahadur-mishra-ors-v-state-of-u-p-anr-47629
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code, 1860
- Sections 452, 323, 504 & 506 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power - criminal proceedings
maliciously instituted with ulterior motives
can be quashed while exercising the power
under Section 482 Cr.P.C.(Para - 14)
FIR lodged by applicant No. 1 - against opposite
party No. 2 and his family members - regarding
death of his daughter - Section 156 (3) Cr.P.C.
was dismissed on basis of malafide intention
and ulterior motive - Applicants entered house
of opposite party No. 2 - started beating him -
intervention - returned back - abused and
threatened - during investigation - allegation -
in respect of house trespass and beating as well
as of threatening - found false.(Para - 16)

HELD:-When during investigation, genesis of
occurrence found false then ancillary incident
cannot stand alone. Charge sheet filed only u/s
504 IPC & proceeding against applicants in
pursuance of charge sheet is bad,is quashed.
(Para -16 )

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

List of Cases cited:-

## Text

370 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose is likely to be served by allowing
the criminal prosecution against them.

27.

Hence,
the
charge
sheet,
impugned cognizance and summoning
order and entire proceedings in pursuance
thereof are hereby quashed only against the
applicant No.2 Sunil @ Guddu Son of
Keshav Dayal, Applicant No.3 Sachin @
Chhotu son of Keshav Dayal and Applicant
No.4 Kamlesh Kumar son of Lal Singh
Yadav.

28. Accordingly, this application u/s
482 Cr.P.C. is rejected to the extent of
applicant No.1 Ritu Yadav and partly
allowed with regard to Applicant No.2
Sunil, Applicant No.3 Sachin @ Chhotu
and applicant No.4 Kamlesh Yadav.
----------
(2022) 11 ILRA 370
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2021

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 10465 of 2009

Lal Bahadur Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Sumit Goyal

Counsel for the Respondents:
Govt. Advocate, Sri S.R. Verma

(A) Criminal Law - Indian Penal Code, 1860
- Sections 452, 323, 504 & 506 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power - criminal proceedings
maliciously instituted with ulterior motives
can be quashed while exercising the power
under Section 482 Cr.P.C.(Para - 14)
FIR lodged by applicant No. 1 - against opposite
party No. 2 and his family members - regarding
death of his daughter - Section 156 (3) Cr.P.C.
was dismissed on basis of malafide intention
and ulterior motive - Applicants entered house
of opposite party No. 2 - started beating him -
intervention - returned back - abused and
threatened - during investigation - allegation -
in respect of house trespass and beating as well
as of threatening - found false.(Para - 16)

HELD:-When during investigation, genesis of
occurrence found false then ancillary incident
cannot stand alone. Charge sheet filed only u/s
504 IPC & proceeding against applicants in
pursuance of charge sheet is bad,is quashed.
(Para -16 )

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

List of Cases cited:-

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

2. M/s. Neeharika Inrastructure Pvt. Ltd. Vs St.
of Maha. & ors. ,AIR 2021 SC 1918

3. Vineet Kumar Vs St. of U.P. ,2017(5) ADJ
438 (SC)

(Delivered by Hon'ble Sameer Jain, J.)

1. Case called out in the revised list.
None is present on behalf of the opposite
party No. 2 even in the revised call.

2. Heard Sri Sumit Goyal, learned
counsel for the applicants; Sri M.P.S. Gaur,
learned AGA for the State-respondent and
perused the record of the case.

3. The present Application u/s 482
Cr.P.C. was filed by the applicants for
quashing the charge sheet and proceedings
of Case No. 2507 of 2008 under Section
504 IPC, P.S. Barra, District Kanpur Nagar
arising out of case crime No. 287 of 2007
pending before ACMM-Ist, Kanpur Nagar.
11 All. Lal Bahadur Mishra & Ors. Vs. State of U.P. & Anr.
371

4. As per prosecution case, on
29.6.2007 FIR of the present case was
lodged under Sections 452, 323, 504, 506
IPC at P.S. Barra, District Kanpur Nagar
with the allegation that on 19.4.2006 at
about 8 am in the morning, applicants
entered in the house of opposite party No. 2
and
started
beating
him
and
when
neighbours intervened then they went back
to their home after abusing and threatening
him. After investigation, charge sheet
against the applicants was filed only under
Section 504 IPC. Learned Magistrate took
cognizance
on
2.5.2008
and
issued
summons to the applicants.

5. Learned counsel for the applicants
contended that although initially FIR of the
present
case
was
lodged
against
the
applicants under Sections 452, 323, 504, 506
IPC and during investigation, allegation in
respect of Sections 452, 323, 506 IPC were
found false and charge sheet against the
applicants was submitted only under Section
504 IPC and, therefore, this fact clearly
suggests that the FIR of the instant case was
lodged against the applicants with malafide
intention on false facts and without proper
investigation, Investigating Officer submitted
charge sheet against the applicants. He further
contended that Section 504 IPC is noncognizable offence, therefore, as per the
explanation to Section 2(d) of Criminal
Procedure Code, a charge sheet under Section
504 IPC could not be filed and neither
cognizance could be taken on such charge
sheet.

6. Learned counsel for the applicants
further submitted that earlier on 19.4.2006,
FIR was lodged by applicant No. 1 against
the opposite party No. 2 and his family
members under Sections 306, 504, 506 IPC
in respect of death of his daughter and in this
case opposite party No. 2 is facing trial. He
next contended that earlier opposite party No.
2 also moved an application under Section
156(3) Cr.P.C. against the applicants in
respect of the death of his own daughter of
applicant No. 1, which was rejected on
11.6.2007 and after rejection of application
moved under Section 156(3) Cr.P.C., opposite
party No. 2 after two weeks filed FIR of the
present case, on false facts.

7. Learned counsel for the applicants
lastly argued that as per prosecution version,
the present incident took place on 19.4.2006
while the FIR was lodged on 29.6.2007, thus,
there is an inordinate delay of more than one
year in lodging the FIR of the present case,
therefore, on this ground alone, the impugned
charge sheet as well as proceedings pending
against the applicants, is liable to be quashed.

8. Per contra, learned AGA contended
that prima facie FIR and the evidence
collected by Investigating Officer during the
course of investigation discloses offence
under Section 504 IPC, therefore, neither
charge sheet nor proceedings pending against
the applicants should be quashed. He further
contended that the charge sheet filed under
Section 504 IPC can very well be treated as a
complaint according to the explanation of
Section 2(d) of Criminal Procedure Code
and, therefore, taking cognizance on the
charge sheet can very well be rectified by
learned Magistrate. Learned AGA further
submitted that merely on the ground of
malafide intention a criminal proceeding
cannot be quashed and neither delay in
lodging the FIR is very material at this stage
and, therefore, present application is devoid
of merit and is liable to be dismissed.

9. I have given anxious consideration
on the rival contentions advanced by
learned counsel for the parties and perused
the record of the case.
372 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The scope of Section 482 Cr.P.C.
has been very elaborately discussed by
Hon'ble Supreme Court in case of State
of Haryana and others Vs. Bhajan Lal
and others reported in [1992 Supp (1)
SCC
335]
and
in
paragraph
102
enumearated 7 categories of the cases
where power under Section 482 Cr.P.C.
can be exercised which is quoted 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."

11. Very recently three Judge Bench
of the Hon'ble Apex Court in M/s.
Neeharika Inrastructure Pvt. Ltd. Vs.
State of Maharashtra and others reported
in [AIR 2021 Supreme Court 1918] also
discussed the scope of Section 482 Cr.P.C.
and Article 226 of Constitution of India in
11 All. Lal Bahadur Mishra & Ors. Vs. State of U.P. & Anr.
373
very detail manner and in paragraph-23
arrived at final conclusion as under:

i) Police has the statutory right
and duty under the relevant provisions of
the Code of Criminal Procedure contained
in Chapter XIV of the Code to investigate
into a cognizable offence;

ii) Courts would not thwart any
investigation into the cognizable offences;

iii) It is only in cases where no
cognizable offence or offence of any kind is
disclosed in the first information report that
the Court will not permit an investigation to
go on;

iv) The power of quashing should
be exercised sparingly with circumspection,
as it has been observed, in the ''rarest of
rare cases (not to be confused with the
formation in the context of death penalty).

v)
While
examining
an
FIR/complaint, quashing of which is
sought, the court cannot embark upon an
enquiry as to the reliability or genuineness
or otherwise of the allegations made in the
FIR/complaint;

vi) Criminal proceedings ought
not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR
should be an exception rather than an
ordinary rule;

viii) Ordinarily, the courts are
barred from usurping the jurisdiction of the
police, since the two organs of the State
operate in two specific spheres of activities
and one ought not to tread over the other
sphere;

ix) The functions of the judiciary
and the police are complementary, not
overlapping;

x) Save in exceptional cases
where non-interference would result in
miscarriage of justice, the Court and the
judicial process should not interfere at the
stage of investigation of offences;

xi) Extraordinary and inherent
powers of the Court do not confer an
arbitrary jurisdiction on the Court to act
according to its whims or caprice;

xii) The first information report is
not an encyclopedia which must disclose
all facts and details relating to the offence
reported. Therefore, when the investigation
by the police is in progress, the court
should not go into the merits of the
allegations in the FIR. Police must be
permitted to complete the investigation. It
would be premature to pronounce the
conclusion based on hazy facts that the
complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. After investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may
file an appropriate report/summary before
the learned Magistrate which may be
considered by the learned Magistrate in
accordance with the known procedure;

xiii) The power under Section
482 Cr.P.C. is very wide, but conferment of
wide power requires the court to be more
cautious. It casts an onerous and more
diligent duty on the court;

xiv) However, at the same time,
the court, if it thinks fit, regard being had to
the parameters of quashing and the selfrestraint imposed by law, more particularly
the parameters laid down by this Court in
the cases of R.P. Kapur (supra) and Bhajan
Lal (supra), has the jurisdiction to quash
the FIR/complaint;

xv) When a prayer for quashing
the FIR is made by the alleged accused and
the court when it exercises the power under
Section 482 Cr.P.C., only has to consider
whether the allegations in the FIR disclose
commission of a cognizable offence or not.
The court is not required to consider on
merits whether or not the merits of the
374 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations make out a cognizable offence
and the court has to permit the investigating
agency/police to investigate the allegations
in the FIR;

xvi) The aforesaid parameters
would be applicable and/or the aforesaid
aspects are required to be considered by the
High Court while passing an interim order
in a quashing petition in exercise of powers
under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India.
However, an interim order of stay of
investigation during the pendency of the
quashing petition can be passed with
circumspection. Such an interim order
should not require to be passed routinely,
casually and/or mechanically. Normally,
when the investigation is in progress and
the
facts
are
hazy
and
the
entire
evidence/material is not before the High
Court, the High Court should restrain itself
from passing the interim order of not to
arrest or "no coercive steps to be adopted"
and the accused should be relegated to
apply for anticipatory bail under Section
438 Cr.P.C. before the competent court.
The High Court shall not and as such is not
justified in passing the order of not to arrest
and/or "no coercive steps" either during the
investigation or till the investigation is
completed
and/or
till
the
final
report/chargesheet is filed under Section
173 Cr.P.C., while dismissing/disposing of
the quashing petition under Section 482
Cr.P.C. and/or under Article 226 of the
Constitution of India. xvii) Even in a case
where the High Court is prima facie of the
opinion that an exceptional case is made
out for grant of interim stay of further
investigation, after considering the broad
parameters while exercising the powers
under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India
referred to hereinabove, the High Court has
to give brief reasons why such an interim
order is warranted and/or is required to be
passed so that it can demonstrate the
application of mind by the Court and the
higher forum can consider what was
weighed with the High Court while passing
such an interim order.

xviii) Whenever an interim order
is passed by the High Court of "no coercive
steps to be adopted" within the aforesaid
parameters, the High Court must clarify
what does it mean by "no coercive steps to
be adopted" as the term "no coercive steps
to be adopted" can be said to be too vague
and/or broad which can be misunderstood
and/or misapplied.

12. As per the judgement of Hon'ble
Apex Court in the case of Bhajan Lal
(supra),
seven
categories
have
been
narrated on the basis of which a proceeding
under Section 482 Cr.P.C. can be quashed.
As per category No. 7, a criminal
proceeding which 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 then it can very
well be quashed. These seven categories
described in the case of Bhajan Lal (supra)
have been approved by the Hon'ble
Supreme Court in the case of M/s
Neeharika
Infrastructure
(supra)
in
Conclusion No. XIV.

13. Hon'ble Apex Court in the case of
Vineet Kumar versus State of U.P.
reported in [2017(5) ADJ 438 (SC)] while
quashing the entire criminal proceedings on
the basis of category No. 7 enumerated in
the case of Bhajan Lal (supra) observed in
paragraph No.-39 as follows:-

39. Inherent power given to the High
Court under Section 482 Cr.P.C. is with the
11 All. Arun Pandey & Ors. Vs. State of U.P. & Anr.
375
purpose and object of advancement of justice.
In case solemn process of Court is sought to be
abused by a person with some oblique motive,
the Court has to thwart the attempt at the very
threshold. The Court cannot permit a
prosecution to go on if the case falls in one of
the Categories as illustratively enumerated by
this Court in State of Haryana V. Bhajan Lal.
Judicial process is a solemn proceeding which
cannot be allowed to be converted into an
instrument of operation or harassment. When
there are material to indicate that a criminal
proceeding is manifestly attended with mala
fide and proceeding is maliciously instituted
with an ulterior motive, the High Court will not
hesitate in exercise of its jurisdiction under
Section 482 Cr.P.C. to quash the proceeding
under Category 7 as
 enumerated in State of Haryana Vs. Bhajan
Lal, which is to the following effect:

"(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."

14. Therefore, it is very well settled that
criminal proceedings maliciously instituted with
ulterior motives can be quashed by this Court
while exercising the power under Section 482
Cr.P.C.

15. In the present case, a FIR was lodged
by the applicant No. 1 against the opposite party
No. 2 and his family members regarding death
of his daughter and for which opposite party
No. 2 is facing trial and further on 11.6.2007,
application moved by him against the
applicants under Section 156 (3) Cr.P.C. was
dismissed. Thus, it is apparent that O.P. No. 2
wanted to save his skin from the case registered
by applicant No. 1 against him and his family
members u/s 306 IPC in respect of the death of
the daughter of applicant No. 1 and also wanted
to drag applicants in that case and he with
malafide intention and ulterior motive after
more than one year, lodged the FIR of the
present case. Therefore, on the ground of
malicious prosecution, present application in
view of category No. 7 of Bhajan Lal (supra)
can succeed.

16. Further as per prosecution, applicants
entered in the house of opposite party No. 2 and
started beating him and on the intervention,
they returned back and while returning, they
abused and threatened him too. But during
investigation, allegation in respect of house
trespass and beating as well as of threatening
was found false. Thus, in my considered view
when
during
investigation,
genesis
of
occurrence was found false then ancillary
incident
cannot
stand
alone.
Therefore,
chargesheet filed only u/s 504 IPC and
proceeding against applicants in pursuance of
that chargesheet is bad.

17. In the result, the present application
u/s 482 Cr.P.C. is allowed and the impugned
charge sheet as well as proceedings in Case No.
2507 of 2008 under Section 504 IPC, P.S.
Barra, District Kanpur Nagar arising out of case
crime No. 287 of 2007 pending before ACMMIst, Kanpur Nagar, is hereby quashed.
----------
(2022) 11 ILRA 375
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 11897 of 2022

Arun Pandey & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants: