# Mayank Agarwal & Anr v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 522
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-02
- **Case number:** Application U/S 482 Cr.P.C. No.1081 of 2007
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mayank-agarwal-anr-v-state-of-u-p-anr-47538
- **Pages:** 14

## Headnote

(A) Criminal Law-No judicial mind applied
while issuance of process-no offence u/s
379 IPC made out-admittedly possession
of outhouse was not with complainantingredient of section 379 IPC not made
out of moving it out of possession
dishonestly and without consent-no case
of theft made out-proceeding quashed.

Application allowed. (E-9)

List of Cases cited:-

## Text

_Characters 0–39,861 of 47,190. This is a partial read: ask again with offset=39861 for what follows._

522 INDIAN LAW REPORTS ALLAHABAD SERIES
01.01.2018 against the respondents under
Section 13(1)(g) and 13(2) of the Prevention of
Corruption Act, 1988 read with provisions of
IPC and by amendment in the year 2018,
Section 17A has been inserted which provides
for previous approval for initiation of any
proceedings and investigations against a public
servant in discharge of official functions. The
Apex Court has held that it is a cardinal
principal of construction that every statute is
prospective, unless it is expressly or by
necessary
implication
made
to
have
retrospective operation and has relied upon the
judgments in the case of Akram Ansari vs.
Chief Election Officer [(2008) 2 SCC 95];
K.R.
Ramesh
vs.
Central
Bureau
of
Investigation and another [(2020) SCC Online
Kerala 2529]. The judgment in the case of G J
Raja vs. Tejraj Surana [(2019) 19 SCC 469]
where the Apex Court followed the judgment
of Hitendra Vishnu Thakur vs. State of
Maharashtra and Ors. [(1994) 4 SCC 602]
and held that a statute which affect substantive
rights is presumed to be prospective in
operation unless made retrospective. The
relevant paragraph of the judgment in the case
of State of Rajasthan vs. Tejmal Choudhary
(supra) is reproduced hereinbelow:-

"11. It is a well settled principle of
interpretation that the legislative intent in the
enactment of a statute is to be gathered from
the express words used in the statue unless
the plain words literally construed give rise to
absurd results. This Court has to go by the
plain words of the statute to construe the
legislative intent, as very rightly argued by
Mr. Roy. It could not possibly have been the
intent of the legislature that all pending
investigations upto July, 2018 should be
rendered infructuous. Such an interpretation
could not possibly have been intended."

6. It is an undisputed fact in the present
case is that the FIR was lodged against the
petitioner on 05.02.2015; the charge-sheet
was filed on 20.03.2015 and the charges were
framed on 08.08.2016 that is much prior to
the amendment in the Act which has came
into effect since 26.07.2018. In the present
case, the proceedings uptil the framing of
charges was prior to the amendment and it is
not provided in the amendment which is
retrospective in effect and as per the law laid
down by the Apex Court in catena of
judgments as discussed above that if it is not
expressly provided that the provisions of the
amended Act will have retrospective effect,
the same shall be applicable prospectively
and the pending cases shall proceed as per the
pre-amended law as existed when the offence
is said to have been committed.

7. In so far as the present case is
concerned, the amendment does not help the
petitioner in any manner, which may entitle
him for grant of prayer i.e. dropping of the
charge under Section 13(1)(d) of the Act
1988. The petition lacks merit. Hence, this
Court finds no illegality in the order passed
by
the
learned
Special
Judge,
Anti
Corruption, West, UP., Lucknow and no
interference is required in the present petition
under Section 482 Cr.P.C.

8. Petition is dismissed accordingly.
----------

(2022)02ILR A522
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2021

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No.1081 of 2007

Mayank Agarwal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
2 All. Mayank Agarwal & Anr. Vs. State of U.P. & Anr.
523
Counsel for the Applicants:
Seema Agarwal, Sri Saroj Giri

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

(A) Criminal Law-No judicial mind applied
while issuance of process-no offence u/s
379 IPC made out-admittedly possession
of outhouse was not with complainantingredient of section 379 IPC not made
out of moving it out of possession
dishonestly and without consent-no case
of theft made out-proceeding quashed.

Application allowed. (E-9)

List of Cases cited:-

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

2. St. of Andhra Pradesh Vs Golconda Linga
Swamy & anr., (2004) 6 SCC 522

3. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Sharaful Haque, reported in 2005(1) SCC 122

4. Hira Lal Vs St. of U.P., [2009 (11) SCC 673]

5. Manoj Mahavir Prasad Khaitan Vs Ram Gopal
Poddar & anr., [(2010) 10 Supreme Court Cases 673]

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard the learned counsel for the
applicants and the learned AGA for the
State. No one has appeared on behalf of the
opposite party no. 2.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the entire proceedings of
Complaint Case No. 32253 of 2005 (Gopal
versus Mahesh Chandra Agarwal and
another) under Section 379 IPC, pending
before the Chief Judicial Magistrate,
Allahabad.

3. The aforesaid complaint case was
registered pursuant to the order of the Chief
Judicial Magistrate, Allahabad vide order
dated
5.12.2005
(Annexure-5
to
the
affidavit filed in support of the application
under Section 482 Cr.P.C.). The opposite
party No. 2 Gopal son of late Ram Jani on
29.11.2005 filed an application under
Section 156 (3) Cr.P.C. impleading the
applicants and alleging inter alia that he is
employed as a "Bandi Rakshak" in
Pratapgarh District Jail and his permanent
address is 13/15 Clive Road, Allahabad. He
has been residing at their address since his
childhood and has undergone schooling
from the said address. The Bungalow No.
13/15 Clive Road, Civil Lines, Allahabad
belonged to an Englishman W.H. Tuck and
his father and mother late Ram Jani and
late Shanti Devi worked for him and
resided in a quarter of the bungalow. One
Ravi Kumar, nephew, who was a student of
Allahabad University also used to reside
with them. The application under Section
156 (3) Cr.P.C. further stated that he was
employed at Pratapgarh District Jail, but
used to visit Allahabad on holidays and
reside in the quarter along with his family.
A lot of household goods were kept in the
quarter at Allahabad. On 20.10.2005 the
nephew of the opposite party no. 2 was
residing alone in the quarter and he locked
the quarter and went to attend to his friend
who was hospitalized and returned in the
morning of 21.10.2005 at 7:00 AM only to
find that the lock had been broken and his
neighbours
informed
him
that
the
applicants who were the owners of the
bungalow had broken the lock and carried
away all the household articles of the
opposite party no. 2 and put their lock. A
police report was tried to be lodged by the
nephew, but the same was not registered
whereafter
information
was
sent
by
registered post to the police authorities, but
524 INDIAN LAW REPORTS ALLAHABAD SERIES
the same also did not bear any fruits. Help
was also sought from the Akhil Bhartiya
Sri Balmiki Navyuvak Sangh which also
did not bear any fruits and meanwhile the
applicants demolished three rooms of the
quarter. After not receiving any response
from the authorities, the opposite party no.
2 is constrained to approach the Chief
Judicial
Magistrate,
Allahabad
by
preferring the application under Section
156 (3) Cr.P.C.

4. The application under Section 156
(3) Cr.P.C. was taken up by the learned
Chief Judicial Magistrate on 5.12.2005 and
after recording the absence of the opposite
party no. 2 opined that it was not a fit case
to direct the police to register a case and
investigate, but directed the case to proceed
as a complaint case and fixed a date for
recording of the statements of complainant
(opposite party no. 2). Thereafter the
statements of the complainant (opposite
party no. 2) was got recorded under Section
200 Cr.P.C. and the statements of the
witnesses Dinesh Kumar son of late
Nankoo and Ravi Kumar son of Sri Kali
Charan were got recorded under Section
202 Cr.P.C. and the learned C.J.M. vide
order dated 25.8.2006 took cognizance of
the complaint and summoned the applicants
under Section 379 I.P.C.

5. Aggrieved the applicants have
sought quashing of the entire proceedings
of the complaint case.

6. It is vehemently contended on
behalf of the applicants that the complaint
has been filed on incorrect facts with mala
fide intentions and oblique motive simply
to harass and victimize them. The opposite
party no. 2 has lodged the complaint
consequent to the refusal of the applicants
to give the outhouse to the nephew of the
opposite party no. 2. He submits that the
bungalow No. 13/15, Clive Road, Civil
Lines, Allahabad belonged to one Mr.
W.H. Tuck. The father of the opposite
party no. 2 late Ram Jani was residing in an
outhouse of the aforesaid bungalow in the
capacity of a servant. However, later on
Mr. W.H. Tuck vacated the bungalow
sometime in the year 1975, but his servant
Ram
Jani
continued
to
occupy
the
outhouse. The bungalow was occupied by
the applicant no. 2 and Ram Jani and his
wife Smt. Shanti Devi began to work as
servants of the applicant no. 2. Ram Jani
had three sons i.e. Kamta Prasad, Ashok
Kumar and Gopal (opposite party no.2).
After death of Ram Jani and Kamta Prasad,
Smt. Shanti Devi and her two sons Ashok
Kumar and Gopal continued to occupy the
outhouse with the permission of the
applicant no. 2. However, later on the
opposite party no. 2 was employed as
"Bandi Rakshak" in Pratapgarh District Jail
and shifted to Pratapgarh with his wife and
children and began to live in a quarter
allotted to him by the jail authorities.
Ashok Kumar employed as clerk in Central
Excise
Department,
Allahabad
got
constructed a house in Patrakar Colony and
started to live there. He had handed over
the vacant possession of the outhouse to the
applicant no. 2 Ashok Kumar vide letter
dated 20.10.2005 (Annexure-1 to the
affidavit filed in support of the application
under Section 482 Cr.P.C.) and requested
the applicant no. 2 to permit the son of his
sister i.e. Ravi Kumar to reside in the
outhouse as he was pursuing his BA-IInd
year course. The applicant no. 2 refused the
permission whereafter Ravi Kumar along
with his friends entered the campus of
bungalow No. 13/15, Clive Road, and
misbehaved with the applicants. He,
however, apologized for the incident later
on. The applicant refused to give the
2 All. Mayank Agarwal & Anr. Vs. State of U.P. & Anr.
525
accommodation to the said Ravi Kumar.
The complaint under Section 156 (3)
Cr.P.C. is the outcome of the said refusal.

7. The learned counsel for the
applicants
further
submits
that
the
applicants are practicing advocate of
Allahabad High Court and respectable
persons of the society. The allegations
levelled against the applicants in the
complaint are absurd and improbable as no
prudent person can steal household goods
of their servants residing in their outhouse.
The statement of Ravi Kumar recorded
under Section 202 Cr.P.C. cannot be relied
upon as it runs contrary to the letter dated
20.10.2005. The statement of Ashok
Kumar elder brother of the opposite party
no. 2 has not been got recorded which casts
a shadow of doubt upon the allegations
levelled in the complaint. The learned
Magistrate has not applied his judicial mind
before issuing the process under Section
404 Cr.P.C. and the summoning order has
been issued in a mechanical manner which
cannot be sustained. No offence under
Section 379 IPC. can be said to be made
out against the applicants and as such, the
entire proceedings of the Complaint Case
No. 32253 of 2005 are liable to be quashed.

8. The learned AGA has opposed the
petition and submits that the learned Chief
Judicial Magistrate has committed no error
in
registering
the
case
against
the
applicants and summoning them to face the
trial. The allegations in the complaint
discloses the offence of theft against the
applicants and the petition deserves to be
rejected.

9. In order to appreciate the
submissions of the learned counsel for the
applicants it would be appropriate to
analyze the provisions of Section 378 and
379 IPC. Section 378 IPC defines Theft
while Section 379 IPC provides for
Punishment of Theft. The provisions are
quoted hereunder:-

"378. Theft.?Whoever, intending
to take dishonestly any moveable property
out of the possession of any person without
that person's consent, moves that property
in order to such taking, is said to commit
theft.

Explanation 1.?A thing so long
as it is attached to the earth, not being
movable property, is not the subject of
theft; but it becomes capable of being the
subject of theft as soon as it is severed from
the earth.

Explanation
2.?A
moving
effected by the same act which affects the
severance may be a theft.

Explanation 3.?A person is said
to cause a thing to move by removing an
obstacle which prevented it from moving or
by separating it from any other thing, as
well as by actually moving it.

Explanation 4.?A person, who by
any means causes an animal to move, is
said to move that animal, and to move
everything which, in consequence of the
motion so caused, is moved by that animal.

Explanation
5.?The
consent
mentioned in the definition may be express
or implied, and may be given either by the
person in possession, or by any person
having for that purpose authority either
express or implied.

Illustrations

(a) A cuts down a tree on Z's
ground, with the intention of dishonestly
526 INDIAN LAW REPORTS ALLAHABAD SERIES
taking the tree out of Z's possession without
Z's consent. Here, as soon as A has severed
the tree in order to such taking, he has
committed theft.

(b) A puts a bait for dogs in his
pocket, and thus induces Z's dog to follow
it. Here, if A's intention be dishonestly to
take the dog out of Z's possession without
Z's consent. A has committed theft as soon
as Z's dog has begun to follow A.

(c) A meets a bullock carrying a
box of treasure. He drives the bullock in a
certain direction, in order that he may
dishonestly take the treasure. As soon as
the bullock begins to move, A has
committed theft of the treasure.

(d) A, being Z's servant, and
entrusted by Z with the care of Z's plate,
dishonestly runs away with the plate,
without Z's consent. A has committed theft.

(e) Z, going on a journey,
entrusts his plate to A, the keeper of the
warehouse, till Z shall return. A carries
the plate to a goldsmith and sells it. Here
the plate was not in Z's possession. It
could not therefore be taken out of Z's
possession, and A has not committed theft,
though he may have committed criminal
breach of trust.

(f) A finds a ring belonging to Z
on a table in the house which Z
occupies. Here the ring is in Z's
possession, and if A dishonestly removes
it, A commits theft.

(g) A finds a ring lying on the
highroad, not in the possession of any
person. A by taking it, commits no theft,
though
he
may
commit
criminal
misappropriation of property.

(h) A sees a ring belonging to Z
lying on a table in Z's house. Not venturing
to misappropriate the ring immediately for
fear of search and detection, A hides the
ring in a place where it is highly
improbable that it will ever be found by Z,
with the intention of taking the ring from
the hiding place and selling it when the loss
is forgotten. Here A, at the time of first
moving the ring, commits theft.

(i) A delivers his watch to Z, a
jeweller, to be regulated. Z carries it to his
shop. A, not owing to the jeweller any debt
for which the jeweller might lawfully detain
the watch as a security, enters the shop
openly, takes his watch by force out of Z's
hand, and carries it away. Here A, though
he may have committed criminal trespass
and assault, has not committed theft, in as
much as what he did was not done
dishonestly.

(j) If A owes money to Z for
repairing the watch, and if Z retains the
watch lawfully as a security for the debt,
and A takes the watch out of Z's possession,
with the intention of depriving Z of the
property as a security for his debt, he
commits theft, in as much as he takes it
dishonestly.

(k) Again, if A, having pawned his
watch to Z, takes it out of Z's possession
without Z's consent, not having paid what
he borrowed on the watch, he commits
theft, though the watch is his own property
in as much as he takes it dishonestly.

(l) A takes an article belonging to
Z out of Z's possession, without Z's consent,
with the intention of keeping it until he
obtains money from Z as a reward for its
restoration. Here A takes dishonestly; A
has therefore committed theft.
2 All. Mayank Agarwal & Anr. Vs. State of U.P. & Anr.
527

(m) A, being on friendly terms
with Z, goes into Z's library in Z's absence,
and takes away a book without Z's express
consent for the purpose merely of reading
it, and with the intention of returning it.
Here, it is probable that A may have
conceived that he had Z's implied consent
to use Z's book. If this was A's impression,
A has not committed theft.

(n) A asks charity from Z's wife.
She gives A money, food and clothes, which
A knows to belong to Z her husband. Here
it is probable that A may conceive that Z's
wife is authorized to give away alms. If this
was A's impression, A has not committed
theft.

(o) A is the paramour of Z's wife.
She gives a valuable property, which A
knows to belong to her husband Z, and to
be such property as she has no authority
from Z to give. If A takes the property
dishonestly, he commits theft.

(p) A, in good faith, believing
property belonging to Z to be A's own
property, takes that property out of B's
possession. Here, as A does not take
dishonestly, he does not commit theft.

379.
Punishment
for
theft.?Whoever commits theft shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both."

10. From the above, it is clear that
Section 378 IPC define "Theft" as the
dishonest removal of movable property out
of the possession of any person without the
consent of that person. "Theft" has the
following ingredients, namely, (i) dishonest
intention to take property; (ii) the property
must be movable; (iii) it should be taken
out of the possession of another person; (iv)
it should be taken without the consent of
that person; and (v) there must be some
moving of the property in order to
accomplish the taking of it.

11. To bring home an offence under
Section 378 IPC, the prosecution is to
prove (a) that there was a movable
property; (b) that the said movable property
was in possession of person other than the
accused; (c) that the accused took it out as
moved it out of the possession of the said
person; (d) that the accused did it
dishonestly i.e. with intention to cause
wrongful gain to himself or wrongful loss
to another; (e) that the accused took the
movable property or moved it without the
consent of the possessor of the movable
property.

12. A Court while dealing with a plea
of theft is not required to adjudicate on
rival claims of title claimed by the parties.
All that the Court has to decide is whether
at the time of the alleged incident the
property which is the subject matter of theft
was in the possession of the complainant
and whether it was taken out of the
possession of the complainant with a
dishonest intention. "Possession" referred
to in Section 378 IPC is actual, physical
possession and not merely possession in
law.

13. Now, having regard to the facts
and circumstances of the case, the Court is
of the opinion that no case under Section
379 IPC can be said to be made out against
the applicants from the allegations set out
in the criminal complaint lodged against
them. The reasons for the same are as
under:

(i)
The
complainant/opposite
party Gopal son of late Ram Jani used to
528 INDIAN LAW REPORTS ALLAHABAD SERIES
reside in the outhouse of the bungalow No.
13/15 Clive Road, Civil Lines, Allahabad
along with his brother Ashok Kumar.
However, Gopal along with his family
shifted
to
Pratapgarh
on
his
being
appointed
as
"Bandi
Rakshak"
in
Pratapgarh District Jail. Ashok Kumar
shifted to his newly constructed house in
Patrakar Colony, Allahabad and handed
over the possession of the outhouse to the
applicant no. 2 as is evident from the letter
dated 20.10.2005 of Ashok Kumar filed as
Annexure-1 to the affidavit filed in support
of the application under Section 482
Cr.P.C.

(ii) The factum that vacant
possession of the outhouse had been
handed over to the applicant no. 2 is also
apparent from the letter dated 20.10.2005
(Annexure-3 to the affidavit) of Ravi
Kumar, the nephew of the opposite party
no. 2 Gopal wherein he has requested the
applicant no. 2 to permit him to live in the
outhouse wherefrom he can complete his
studies.

(iii) The report of the Police
Station Civil Lines, Allahabad clearly
reveals that the factum of theft is not
established and that the application under
Section 156 (3) Cr.P.C. has been filed on
exaggerated facts.

(iv)
Since
admittedly
the
possession of the outhouse was not with
the complainant/opposite party no. 2, the
allegations set out in the complaint fall
flat.
The
ingredients
necessary
to
constitute an offence of theft i.e. movable
property being in the possession of the
complainant/opposite party no. 2 in the
outhouse, the applicants having moved it
out of the possession of the opposite
party no. 2 dishonestly and without the
consent of the opposite party no. 2 are not
present.

(v) The complaint appears to
have been instituted on the refusal of the
applicant no. 2 to give the outhouse to the
nephew of the opposite party No. 2. The
action
on
the
part
of
the
complainant/opposite party No. 2 appears
to be mala fide.

(vi)
The
allegations
in
the
complaint appear to be covered by
illustration (e) to the Section 378 IPC. No
case of theft against the applicants can be
said to be made out.

14. The Apex Court in the case of
State of Haryana and others Vs. Bhajan
Lal and others, reported in 1992 Supp (1)
SCC 335 held 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
2 All. Mayank Agarwal & Anr. Vs. State of U.P. & Anr.
529
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)The Code of Criminal
Procedure 1973; Section 156(1) of the
Code except under an order of a
Magistrate within the purview of Section
155(2)The Code of Criminal Procedure
1973; 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.

15. The law laid down in the case of
Bhajan Lal (Supra) was reiterated in the
case of State of Andhra Pradesh Vs.
Golconda Linga Swamy and another,
(2004) 6 SCC 522 wherein the Apex Court
has observed as under:-

"5. Exercise of power under
Section 482 of the Code in a case of this
nature is the exception and not the rule. The
Section does not confer any new powers on
the High Court. It only saves the inherent
power which the Court possessed before the
enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to
give effect to an order under the Code, (ii) to
prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice. It
is neither possible nor desirable to lay down
any inflexible rule which would govern the
exercise
of
inherent
jurisdiction.
No
legislative enactment dealing with procedure
can provide for all cases that may possibly
arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by
law. That is the doctrine which finds
expression in the Section which merely
recognizes and preserves inherent powers of
the High Courts. All courts, whether civil or
530 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are necessary
to do the right and to undo a wrong in course
of administration of justice on the principle
quando
lex
aliquid
alique
concedit,
conceditur et id sine quo res ipsa esse non
potest (when the law gives a person anything
it gives him that without which it cannot
exist). While exercising powers under the
Section, the Court does not function as a
court of appeal or revision. Inherent
jurisdiction under the Section though wide
has to be exercised sparingly, carefully and
with caution and only when such exercise is
justified by the tests specifically laid down in
the Section itself. It is to be exercised ex
debito justitiae to do real and substantial
justice for the administration of which alone
courts exist. Authority of the court exists for
advancement of justice and if any attempt is
made to abuse that authority so as to produce
injustice, the court has power to prevent such
abuse. It would be an abuse of process of the
court to allow any action which would result
in injustice and prevent promotion of justice.
In exercises of the powers court would be
justified to quash any proceeding if it finds
that initiation or continuance of it amounts to
abuse of the process of court or quashing of
these proceedings would otherwise serve the
ends of justice. When no offence is disclosed
by the complaint, the court may examine the
question of fact. When a complaint is sought
to be quashed, it is permissible to look into
the materials to assess what the complainant
has alleged and whether any offence is made
out even if the allegations are accepted in
toto.

6. In R.P. Kapur v. State of
Punjab (AIR 1960 SC 866), this Court
summarized some categories of cases
where inherent power can and should be
exercised to quash the proceedings.

(i) where it manifestly appears
that there is a legal bar against the
institution or continuance e.g. want of
sanction;

(ii) where the allegations in the
first information report or complaint taken
at its face value and accepted in their
entirety do not constitute the offence
alleged;

(iii)
where
the
allegations
constitute an offence, but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charge.

7. In dealing with the last
category, it is important to bear in mind the
distinction between a case where there is
no legal evidence or where there is
evidence which is clearly inconsistent with
the accusations made, and a case where
there
is
legal
evidence
which,
on
appreciation, may or may not support the
accusations. When exercising jurisdiction
under Section 482 of the Code, the High
Court would not ordinarily embark upon
an enquiry whether the evidence in
question is reliable or not or whether on a
reasonable appreciation of it accusation
would not be sustained. That is the function
of the trial Judge. Judicial process no
doubt should not be an instrument of
oppression, or, needless harassment. Court
should be circumspect and judicious in
exercising discretion and should take all
relevant facts and circumstances into
consideration before issuing process, lest it
would be an instrument in the hands of a
private complainant to unleash vendetta to
harass any person needlessly. At the same
time the Section is not an instrument
handed over to an accused to short-circuit
a prosecution and bring about its sudden
2 All. Mayank Agarwal & Anr. Vs. State of U.P. & Anr.
531
death. The scope of exercise of power
under Section 482 of the Code and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any court or otherwise to secure
the ends of justice were set out in some
detail by this Court in State of Haryana v.
Bhajan Lal (1992 Supp (1) SCC 335) A
note of caution was, however, added that
the power should be exercised sparingly
and that too in rarest of rare cases. The
illustrative categories indicated by this
Court are as follows: (SCC pp.378-79 para
102)

"(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 F.I.R. 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
F.I.R. 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 S. 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.

8. As noted above, the powers
possessed by the High Court under Section
482 of the Code are very wide and the very
plenitude of the power requires great
caution in its exercise. Court must be
careful to see that its decision in exercise of
this power is based on sound principles.
The inherent power should not be exercised
to stifle a legitimate prosecution. High
Court being the highest Court of a State
should normally refrain from giving a
prima facie decision in a case where the
entire facts are incomplete and hazy, more
so when the evidence has not been
collected and produced before the Court
and the issues involved, whether factual or
legal, are of magnitude and cannot be seen
in their true perspective without sufficient
material. Of course, no hard and fast rule
can be laid down in regard to cases in
which the High Court will exercise its
532 INDIAN LAW REPORTS ALLAHABAD SERIES
extraordinary jurisdiction of quashing the
proceeding at any stage. (See : The Janata
Dal etc. v. H.S. Chowdhary and others, etc.
(AIR 1993 SC 892), Dr. Raghubir Saran v.
State of Bihar and another (AIR 1964 SC
1)). It would not be proper for the High
Court
to
analyse
the
case
of
the
complainant in the light of all probabilities
in order to determine whether a conviction
would be sustainable and on such premises,
arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to
assess the material before it and conclude
that the complaint cannot be proceeded
with. In proceeding instituted on complaint,
exercise of the inherent powers to quash
the proceedings is called for only in a case
where the complaint does not disclose any
offence or is frivolous, vexatious or
oppressive. If the allegations set out in the
complaint do not constitute the offence of
which cognizance has been taken by the
Magistrate, it is open to the High Court to
quash the same in exercise of the inherent
powers under Section 482 of the Code. It is
not, however, necessary that there should
be meticulous analysis of the case before
the trial to find out whether the case would
end in conviction or acquittal. The
complaint/F.I.R. has to be read as a whole.
If it appears that on consideration of the
allegations in the light of the statement
made on oath of the complainant or
disclosed in the F.I.R. that the ingredients
of the offence or offences are disclosed and
there is no material to show that the
complaint/F.I.R. is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High
Court. When an information is lodged at
the police station and an offence is
registered, then the mala fides of the
informant
would
be
of
secondary
importance. It is the material collected
during the investigation and evidence led in
Court which decides the fate of the accused
person. The allegations of mala fides
against
the
informant
are
of
no
consequence and cannot by itself be the
basis for quashing the proceeding. (See :
Mrs. Dhanalakshmi v. R. Prasanna Kumar
and others (AIR 1990 SC 494), State of
Bihar and another v. P. P. Sharma, I.A.S.
and another (1992 Suppl (1) SCC 222),
Rupan Deol Bajaj (Mrs.) and another v.
Kanwar Pal Singh Gill and another (1995
(6) SCC 194), State of Kerala and others v.
O.C. Kuttan and others (1999 (2) SCC
651), State of U.P. v. O. P. Sharma (1996
(7) SCC 705), Rashmi Kumar (Smt.) v.
Mahesh Kumar Bhada (1997 (2) SCC 397),
Satvinder Kaur v. State (Govt. of NCT of
Delhi) and another (1999 (8) SCC 728),
Rajesh Bajaj v. State NCT of Delhi and
others AIR 1999 SC 1216), State of
Karnataka v. M. Devendrappa and another
(2002 (3) SCC 89)."

16. Yet again the Apex Court in the
case of Zandu Pharmaceutical Works Ltd.
Vs. Mohd. Sharaful Haque, reported in
2005(1) SCC 122 observed as under:-

"11. The scope of exercise of power
under Section 482 of the Code and the
categories of cases where the High Court
may exercise its power under it relating to
cognizable offences to prevent abuse of
process of any court or otherwise to secure
the ends of justice were set out in some detail
by this Court in State of Haryana v. Bhajan
Lal (1992 Supp (1) 335). A note of caution
was, however, added that the power should
be exercised sparingly and that too in rarest
of rare cases. The illustrative categories
indicated by this Court are as follows: (SCC
pp.378-79, para 102)

"102(1) Where the allegations
made in the first information report or the
2 All. Mayank Agarwal & Anr. Vs. State of U.P. & Anr.
533
complaint, even if they are taken at their
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 Act concerned (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 Act
concerned, 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."

As
noted
above,
the
powers
possessed by the High Court under Section 482
of the Code are very wide and the very
plenitude of the power requires great caution in
its exercise. Court must be careful to see that its
decision in exercise of this power is based on
sound principles. The inherent power should
not be exercised to stifle a legitimate
prosecution. The High Court being the highest
court of a State should normally refrain from
giving a prima facie decision in a case where
the entire facts are incomplete and hazy, more
so when the evidence has not been collected
and produced before the Court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of
course, no hard-and-fast rule can be laid down
in regard to cases in which the High Court will
exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. (See:
Janata Dal v. H.S. Chowdhary (1992 (4) SCC
305), and Raghubir Saran (Dr.) v. State of
Bihar (AIR 1964 SC 1). It would not be proper
for the High Court to analyse the case of the
complainant in the light of all probabilities in
order to determine whether a conviction would
be sustainable and on such premises arrive at a
conclusion that the proceedings are to be
quashed. It would be erroneous to assess the
material before it and conclude that the
complaint cannot be proceeded with.