# Prashant Saxena v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** Application U/S 482 No. 19546 of 2019
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashant-saxena-v-state-of-u-p-anr-50901
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-
Section
Application
195(1)(a)(i) - Indian Penal Code,1860 -
Section 498A, 354 & 323 - Criminal Proceedings
Quashed - The applicant sought to quash the
charge-sheet dated 17.04.2019, cognizance
order dated 25.04.2019, and proceedings in
Criminal Case No. 0597 of 2018 under Sections
376 and 506 IPC - Held, the proceedings were
quashed as the allegations of rape and criminal
intimidation appeared false, concocted, and
motivated by ulterior motives, constituting an
abuse of process. (Paras 5, 44, 46)

B. False and Frivolous Allegations -
Ulterior
Motive
-
The
informant,
the
applicant's
sister-in-law,
alleged
rape
and
threats, but prior cases under Sections 498A,
354, 323 IPC, and the Domestic Violence Act
against the applicant and his family indicated
personal vendetta - Held, as per Mahmood Ali
Vs St. of U.P., the court must examine attending
circumstances beyond the FIR to identify
vexatious proceedings instituted to harass,
warranting quashing. (Paras 20, 21, 36, 40)

C. Inherently Improbable Allegations -
The informant claimed the applicant raped her
168 INDIAN LAW REPORTS ALLAHABAD SERIES
at her paternal home after inducing her to smell
a substance, causing unconsciousness, and
recorded a video - Held, as per St. of Haryana
Vs Bhajan Lal, the allegations were absurd and
improbable, and the informant's claim that the
video was deleted further undermined her
story, justifying quashing. (Paras 14, 16, 22,
41, 43)

D. Delayed FIR and Lack of Evidence -
The FIR was lodged on 24.07.2018, over two
weeks
after
the
alleged
incident
on
09.07.2018, with no explanation for the delay,
and no video evidence was recovered - Held,
the delay and absence of corroborative
evidence supported the conclusion that the
allegations were baseless and fabricated.
(Paras 13, 22, 43)

E. Inherent Powers u/s 482 Cr.P.C. -
Preventing Abuse of Process - The court
invoked its inherent powers under Section 482
Cr.P.C., as guided by R.P. Kapur Vs St. of
Punjab, Bhajan Lal, Neeharika Infrastructure Vs
St. of Maharashtra, Prabhatbhai Aahir Vs St. of
Gujarat, and Kapil Agarwal Vs Sanjay Sharma,
to quash proceedings that were maliciously
instituted to harass the applicant and secure
the ends of justice. (Paras 31, 33, 34, 35, 45)

Application Allowed.

List of Cases cited:

## Text

1 All. Prashant Saxena Vs. State of U.P. & Anr.
167
302 IPC without adverting to the
evidence adduced in the case and simply
on the basis of the direction issued
inRajbir case[Rajbirv.State of Haryana,
(2010) 15 SCC 116 : (2013) 2 SCC (Cri)
149 : AIR 2011 SC 568] . The High Court
no doubt made a half-hearted attempt to
justify
the
framing
of
the
charge
independent of the directions inRajbir
case[Rajbirv.State of Haryana, (2010) 15
SCC 116 : (2013) 2 SCC (Cri) 149 : AIR
2011 SC 568] , but it would have been
more appropriate to remit the matter back
to the trial court for fresh orders rather
than lending support to it in the manner
done by the High Court."

18. It is needless to say that during the
course of the trial, if the learned trial court
finds that there is any clinching or cogent
material convincing the learned trial court
that the trial of the present petitioner should
be conducted under Section 302 IPC also,
the same charge may be added by the
learned trial court under Sections 216 &
217 Cr.P.C.

19. Accordingly, the order dated
27.04.2023 passed by learned Additional
Sessions Judge/ Special Judge, Special
Court No.4, (Prevention of Corruption Act)
Lucknow is hereby set aside/ modified so
far as the alternative charge under Section
302 IPC has been framed against the
petitioner. However, the trial against the
petitioner may be conducted and concluded
under Sections 498-A, 304-B of IPC and
Section 3/4 Dowry Prohibition Act strictly
in accordance with law.

20. Accordingly, the present petition
is partly allowed.

21. No order as to costs.
----------
(2024) 1 ILRA 167
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 19546 of 2019

Prashant Saxena ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Awadhesh Kumar Saxena, Sri Avijit
Saxena, Sri Kamal Krishna (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Rajendra Kumar Dubey, Sri
Santosh Kumar Pandey

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
Application
195(1)(a)(i) - Indian Penal Code,1860 -
Section 498A, 354 & 323 - Criminal Proceedings
Quashed - The applicant sought to quash the
charge-sheet dated 17.04.2019, cognizance
order dated 25.04.2019, and proceedings in
Criminal Case No. 0597 of 2018 under Sections
376 and 506 IPC - Held, the proceedings were
quashed as the allegations of rape and criminal
intimidation appeared false, concocted, and
motivated by ulterior motives, constituting an
abuse of process. (Paras 5, 44, 46)

B. False and Frivolous Allegations -
Ulterior
Motive
-
The
informant,
the
applicant's
sister-in-law,
alleged
rape
and
threats, but prior cases under Sections 498A,
354, 323 IPC, and the Domestic Violence Act
against the applicant and his family indicated
personal vendetta - Held, as per Mahmood Ali
Vs St. of U.P., the court must examine attending
circumstances beyond the FIR to identify
vexatious proceedings instituted to harass,
warranting quashing. (Paras 20, 21, 36, 40)

C. Inherently Improbable Allegations -
The informant claimed the applicant raped her
168 INDIAN LAW REPORTS ALLAHABAD SERIES
at her paternal home after inducing her to smell
a substance, causing unconsciousness, and
recorded a video - Held, as per St. of Haryana
Vs Bhajan Lal, the allegations were absurd and
improbable, and the informant's claim that the
video was deleted further undermined her
story, justifying quashing. (Paras 14, 16, 22,
41, 43)

D. Delayed FIR and Lack of Evidence -
The FIR was lodged on 24.07.2018, over two
weeks
after
the
alleged
incident
on
09.07.2018, with no explanation for the delay,
and no video evidence was recovered - Held,
the delay and absence of corroborative
evidence supported the conclusion that the
allegations were baseless and fabricated.
(Paras 13, 22, 43)

E. Inherent Powers u/s 482 Cr.P.C. -
Preventing Abuse of Process - The court
invoked its inherent powers under Section 482
Cr.P.C., as guided by R.P. Kapur Vs St. of
Punjab, Bhajan Lal, Neeharika Infrastructure Vs
St. of Maharashtra, Prabhatbhai Aahir Vs St. of
Gujarat, and Kapil Agarwal Vs Sanjay Sharma,
to quash proceedings that were maliciously
instituted to harass the applicant and secure
the ends of justice. (Paras 31, 33, 34, 35, 45)

Application Allowed.

List of Cases cited:

1. R.P. Kapur Vs St. of Pun., AIR 1960 SC 866

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

3. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maharashtra, AIR 2021 SC 1918

4. Prabhatbhai Aahir Vs St. of Gujarat, (2017) 9
SCC 641

5. Kapil Agarwal Vs Sanjay Sharma, (2021) 5
SCC 524

6. Mahmood Ali Vs St. of U.P., Criminal Appeal
No. 2341 of 2023, 2023 INSC 684

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

1. The instant application under
Section 482 Cr.P.C. is connected with
Criminal Misc.Bail Application No. 19065
of 2023 vide order dated 22.5.2023 passed
by this Court in the above noted Criminal
Misc. Bail Application.

2. From the order dated 22.5.2023
passed in Criminal Misc.Bail Application
No. 19065 of 2023 it reflects that this Court
directed the office to place the above noted
Criminal Misc.Bail Application along with
the instant application before Hon'ble the
Chief Justice for nomination so as both the
matters may be heard together.

3. In view of the orders dated
22.5.2023 and 26.7.2023 passed by this
Court in Criminal Misc.Bail Application
No.19065 of 2023 both the matters
including the instant application were
placed before Hon'ble the Chief Justice for
nomination and vide order dated 2.8.2023
both the matters were nominated to this
Bench
and,
therefore,
the
instant
application
and
Criminal
Misc.Bail
Application No. 19065 of 2023 were heard
together and separate order has been passed
in Criminal Misc.Bail Application No.
19065 of 2023.

4. Heard Sri Kamal Krishna, learned
Senior Advocate, assisted by Sri Awadhesh
Kumar Saxena, learned counsel for the
applicant, Sri Santosh Kumar Pandey,
learned counsel for the informant and
Dr.S.B.Maurya learned AGA-I, for the
State.

5. The instant application under
Section 482 Cr.P.C. has been filed with the
prayer to quash the entire proceedings
pursuant to the charge sheet No 138 of
2019 dated 17.4.2019 as well as cognizance
order dated 25.4.2019 passed by Chief
1 All. Prashant Saxena Vs. State of U.P. & Anr.
169
Judicial Magistrate, Farrukhabad arising
out of Case Crime No. 0597 of 2018, under
Sections 376 and 506 IPC, Police Station
Fatehgarh Kotwali, District Fatehgarh.

6. From the record it reflects that
pleadings have been exchanged, therefore,
instant application is being finally disposed
of.

FACTUAL MATRIX:

8. On 24.7.2018 opposite party no.2
lodged FIR of the present case against the
applicant, who is her 'Dever' (brother-inlaw) under Sections 376 and 506 IPC.
According to the FIR, the husband of
opposite party no.2 expired on 29.7.2017
and after his death applicant , i.e., brother of
her husband tried to develop physical
relationship with her and due to the conduct
of applicant and his parents, opposite party
no.2 returned to her paternal home on
8.7.2018 and on 9.7.2018 at about 4.00 AM
in the morning applicant arrived at her
paternal home and proposed her and
thereafter he induced her to smell some
substance and thereafter committed rape
with her and when informant gained
consciousness
then
found
that
after
committing rape with her, applicant was
sleeping on the same bed and when
informant (opposite party no.2) made
complaint to him then applicant stated, he
has prepared the clip of rape and if you
made complaint then he will post the same
on social media. It is further mentioned in
the FIR that although applicant went next
day but on the basis of video clip he again
committed rape with her. It is further
mentioned in the FIR that applicant
committed rape with the informant, i.e., her
'Bhabhi' under the false promise of marriage
and refused to perform marriage with her.

9. After registration of the case
investigation was started and during
investigation Investigating Officer recorded
the statement of the prosecutrix, i.e.,
informant (opposite party no.2) under
Section 161 Cr.P.C. in which she reiterated
the version of the FIR and after that
statement of the informant (opposite party
no.2) was recorded by the Magistrate under
Section 164 Cr.P.C. The prosecutrix in her
statement recorded under Section 164
Cr.P.C. also reiterated the version of the
FIR. From the record it further reflects that
during investigation Investigating Officer
also recorded the second statement of the
informant (opposite party no.2) under
Section 161 Cr.P.C. and made a query that
as per allegation applicant also prepared
videographs of the prosecutrix and what
was the mobile number. On query,
prosecutrix replied to the Investigating
Officer that applicant although prepared the
videographs of rape but now he has deleted
the same. Therefore, it appears that during
investigation no alleged videograph of the
alleged incident of rape was recovered.

10. After investigation, on the basis of
the statement of the informant (opposite
party no.2) charge sheet was filed against
the applicant on 17.4.2019 and the court
concerned took cognizance on 25.4.2019
and thereafter summons were issued to the
applicant.

11. Hence, the present application.

SUBMISSIONS ADVANCED ON
BEHALF OF THE APPLICANT:

12. Learned counsel for the applicant
submits that applicant is brother-in-law
(Dever) of the informant (opposite party
no.2) and totally on the basis of false and
170 INDIAN LAW REPORTS ALLAHABAD SERIES
frivolous allegation of rape he has been
made accused in the present matter.

13. He further submits that alleged
rape is said to have been committed by the
applicant on 9.7.2018 but FIR was lodged
on 24.7.2018, i..e, after more than two
weeks and this fact itself shows that totally
on the basis of false allegation of rape
applicant has been roped in the present
matter.

14. He further submits that as per the
prosecutrix, i.e., informant of the case,
applicant committed rape with her in her
paternal home which appears to be
improbable and this fact further shows that
a false story of rape has been cooked up by
the
informant,
i.e.,
'Bhabhi'
of
the
applicant.

15. He further submits that even from
the entire story narrated by the informant
(opposite party no.2) it appears that it is
based on false and concocted facts and no
reliance can be placed on such hypothetical
version.

16. He further submits that as per the
prosecutrix, applicant induced her to smell
some substance and thereafter she lost her
consciousness and applicant committed
rape with her and this fact itself shows that
entire story is false as no reliance can be
placed on such hypothetical version,
therefore, story of rape narrated by the
informant cannot be believed.

17. He further submits that although
from the FIR and both the statements of the
informant (opposite party no.2) recorded
under Sections 161 and 164 Cr.P.C. it
appears that there is allegation of rape
against the applicant but this Court should
read in between the lines while considering
the prayer for quashing the charge sheet or
the proceedings along with attending
circumstances.

18. He further submits that if
proceeding pending against the applicant
manifestly appears to be vexatious and
frivolous then it is the duty of this Court to
quash the same.

19. He placed reliance upon the
judgment of the Apex Court in the case of
Mahmood Ali and others Vs. State of
U.P. and others passed in Criminal Appeal
No.2341 of 2023 dated 8.8.2023 [2023
INSC (684)].

20. He further submits that actually
after the death of her husband informant,
i.e., Bhabhi of the applicant wanted to grab
the entire property of the applicant and his
parents and in this regard the mother of
applicant,
i.e.,
mother-in-law
of
the
prosecutrix moved applications against her
to the police on 11.12.2017 and on
9.3.2018, i.e., well before lodgement of the
FIR of the present case which has been
annexed along with the instant application
and only due to this reason with ulterior
motive informant implicated the applicant
in the present case.

21. He further submits that informant
of the case also filed cases under Sections
498A, 354 and 323 IPC and Section 3/4
Dowry Prohibition Act and under the
provisions of Domestic Violence Act
against the applicant and his parents even
before the FIR of the present case and
therefore it appears that informant was
highly inimical with the applicant and his
parents and she lodged the FIR of the
present case only with ulterior motive and,
therefore, in view of the law laid down by
the Apex Court in the case Mahmood Ali
1 All. Prashant Saxena Vs. State of U.P. & Anr.
171
(Surpra)
the
impugned
proceeding
pending against the applicant is liable to be
quashed.

22. He further submits that although
there is allegation that applicant also
prepared the video of the incident of rape
but in her second statement recorded under
Section 161 Cr.P.C. prosecutrix, i.e.,
informant of the case herself stated that the
alleged video has been deleted by the
applicant and this fact again shows that
applicant neither committed any rape with
her nor he ever prepared any video and,
therefore, from this angle too story narrated
by informant appears to be totally false.

23. He further submits that as the
impugned proceeding pending against the
applicant
appears
to
be
maliciously
instituted with an ulterior motive with an
intention to harass the applicant and to grab
his property, therefore, it is liable to be
quashed.

SUBMISSIONS ADVANCED BY
OPPOSITE PARTY NO.2 AND THE
STATE:

24. Per contra, learned AGA as well
as learned counsel for the informant
(opposite party no.2) opposed the prayer
for quashing the proceeding and the charge
sheet
and
submitted
that
there
are
allegations of rape against the applicant in
the FIR and in both the statements of the
prosecutrix recorded under Sections 161
and 164 Cr.P.C. and law is settled that at
this stage if prima facie case against the
applicant is made out then this Court
should not quash the proceedings pending
against him.

25. Both the learned counsels further
submit that from the perusal of the FIR and
other available materials on record prima
facie offence of rape is clearly made out
against the applicant.

26. Learned counsel for the informant
(opposite party no.2) further submitted that
applicant is brother-in-law (Dever) of the
informant and he mis-used his position
after the death of his elder brother, i.e.,
husband of the informant and firstly he
harassed her and due to his harassment
informant had to start living in her paternal
home and thereafter he committed rape
with her in her paternal home.

27. He further submits that although
FIR of the present case was lodged after
two weeks but merely on the basis of delay
in lodging the FIR criminal proceedings
pending against an accused should not be
quashed if otherwise it discloses prima
offence against him. He next submits that
in the case of rape especially where
accused is close relative of the victim delay
in lodging the FIR is quite obvious.

28. He next submits that although
during investigation alleged video of rape
could not be recovered as it had already
been deleted by the applicant but merely
due to this reason proceeding pending
against the applicant should not be quashed
as informant, i.e., opposite party no.2 in the
FIR as well as in her the statements
recorded during investigation categorically
stated that applicant committed rape with
her and at this stage there is no reason to
discard her version.

29. Learned counsel for the informant
and the learned AGA further submitted that
whether allegation of rape is correct or not,
it can only be adjudicated by the trial court
during trial and this Court at this stage can
only see whether prima facie offence of
172 INDIAN LAW REPORTS ALLAHABAD SERIES
rape is made out or not and in the present
matter as prima facie offence of rape is
clearly made out against the applicant,
therefore proceeding pending against the
applicant should not be quashed and,
therefore, instant applicant is devoid of
merit and is liable to be dismissed.

ANALYSIS:

30. I have given my anxious
consideration on the rival submissions
advanced by learned counsel for both the
parties and perused the material available
on record.

31. The power of this Court with
regard to its inherent jurisdiction has been
discussed by Three Judges Bench of the
Apex Court in case of R.P. Kapur Vs.
State of Punjab AIR 1960 SC 866 and
Three Judges Bench of the Apex Court
summarised the categories of cases where
inherent power can or should be exercised
to quash the proceedings:-

(i) Where it manifestly appears
that there is a legal bar against the
institution or continuance of proceedings
for example want of sanction,

(ii) Where allegation in the first
information report or complaint if taken at
its face value and accepted in their entirety
do not constitute the offence alleged,

(iii)
Where
the
allegations
constituted an offence but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charges.

32. The Apex Court in its celebrated
judgement of State of Haryana and
others Vs. Bhajan Lal and other 1992
Supp (1) SCC 335 considered in detail the
scope of this Court under Section 482
Cr.P.C. and/ or Article 226 of Constitution
of India and identified the following
categories in which proceedings can be
quashed and observed in paragraph 102 as:-

"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.
1 All. Prashant Saxena Vs. State of U.P. & Anr.
173

(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."

33. The Three Judges Bench of the
Supreme Court in the case of M/s Neeharika
Infrastructure Pvt. Ltd. Vs. State of
Maharashtra and others AIR (2021) SC
1918 also occasioned to discuss the scope of
Section 482 Cr.P.C. and Article 226 of
Constitution of India and observed that if a
case falls under the parameters of R.P.
Kapur case (supra) and Bhajan Lal case
(supra) then this Court is having jurisdiction
to quash the proceedings by invoking its
jurisdiction under Section 482 Cr.P.C.

34. The Three Judges Bench of the
Apex Court in case of Prabhatbhai Aahir
alias Parbatbai Bhimsinhbhai Karmur
and others Vs. State of Gujarat and
another (2017) 9 SCC 641 observed that
Section 482 Cr.P.C. is pre-faced with an
overriding provision and this Court being a
superior Court has the inherent power to
make such order as necessary (i) to prevent
an abuse of the process of any Court; or (ii)
otherwise to secure the ends of justice.

35. Again apex Court in case of Kapil
Agarwal and others Vs. Sanjay Sharma
and others (2021) 5 SCC 524 observed
with regard to power of this Court under
Section 482 Cr.P.C. as:-

"As observed and held by this
Court in catena of decisions, inherent
jurisdiction under Section 482 Cr.P.C.
and/or
under
Article
226
of
the
Constitution is designed to achieve salutary
purpose that criminal proceedings ought
not to be permitted to degenerate into
weapon of harassment. When the Court is
satisfied that criminal proceedings amount
to an abuse of process of law or that it
amounts
to
bringing
pressure
upon
accused, in exercise of inherent powers,
such proceedings can be quashed."

36. Recently, the Apex Court in the
case of Mahmood Ali (supra) on which
reliance was also placed by the learned
counsel for the applicant observed in
paragraph-12 as under:

"At this stage, we would like to
observe something important. Whenever an
accused comes before the Court invoking
either the inherent powers under Section
482 of the Code of Criminal Procedure
(CrPC) or extraordinary jurisdiction under
Article 226 of the Constitution to get the
FIR or the criminal proceedings quashed
essentially on the ground that such
174 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings are manifestly frivolous or
vexatious or instituted with the ulterior
motive for wreaking vengeance, then in
such circumstances the Court owes a duty
to look into the FIR with care and a little
more closely. We say so because once the
complainant decides to proceed against
the accused with an ulterior motive for
wreaking personal vengeance, etc., then
he would ensure that the FIR/complaint is
very well drafted with all the necessary
pleadings. The complainant would ensure
that
the
averments
made
in
the
FIR/complaint are such that they disclose
the necessary ingredients to constitute the
alleged offence. Therefore, it will not be
just enough for the Court to look into the
averments made in the FIR/complaint
alone for the purpose of ascertaining
whether the necessary ingredients to
constitute
the
alleged
offence
are
disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to
look
into
many
other
attending
circumstances emerging from the record
of the case over and above the averments
and, if need be, with due care and
circumspection try to read in between the
lines. The Court while exercising its
jurisdiction under Section 482 of the
CrPC or Article 226 of the Constitution
need not restrict itself only to the stage of
a case but is empowered to take into
account
the
overall
circumstances
leading to the initiation/registration of
the case as well as the materials collected
in the course of investigation. Take for
instance the case on hand. Multiple FIRs
have been registered over a period of time.
It
is
in
the
background
of
such
circumstances the registration of multiple
FIRs
assumes
importance,
thereby
attracting the issue of wreaking vengeance
out of private or personal grudge as
alleged."

37. Therefore, the law with regard to
the power of this Court under Section 482
Cr.P.C. is settled that this Court cannot
scuttle a legitimate prosecution at its
inception and the inherent power should be
used sparingly with abundant caution but at
the same time if it appears that even if
entire allegations are accepted and even
then no offence is made out or proceedings
has been initiated with mala-fide intention
only to harass the accused persons then in
the interest of justice and to secure the ends
of justice this Court should invoke its
jurisdiction under Section 482 Cr.P.C. and
should quash the proceedings.

38. Following the well settled
principle of law and contents of the
allegation would have to be taken as a
whole to deduce as to whether the
ingredients of the offences have been duly
established. If ingredients of the offences
have been duly established then next
question arises whether in spite that in view
of the law laid down by the Apex Court
proceeding or charge-sheet pending against
the applicant can be quashed or not.

39. In case at hand, from the perusal
of the material available on record, it
appears that there is allegation of rape
against the applicant, who is 'dever' of the
informant and victim (informant) i.e.
prosecutrix of the case in the FIR as well as
in her both the statements recorded under
Sections 161 Cr.P.C. and 164 Cr.P.C. made
allegation of rape against the applicant, but
as observed by the Apex Court in the case
of Mahmood Ali (supra) it is not just
enough for the Court to look into the
averment made in the FIR/complaint alone
for the purpose of ascertaining whether the
necessary ingredients constitute the alleged
offence are disclosed or not. In frivolous or
vexatious or proceedings instituted with the
1 All. Prashant Saxena Vs. State of U.P. & Anr.
175
ulterior motive for wreaking vengeance,
this Court owes a duty to look into the FIR
and record of the case over and above the
averments.

40. In case at hand, applicant is
brother-in-law (Devar) of the informant i.e.
opposite party no.2 and earlier also opposite
party no.2 lodged two cases against him and
his parents including the case under Section
498A , 354 IPC and case under the
provisions of Domestic Violence Act,
therefore, attending circumstances indicate
that opposite party no.2 instituted the
impugned proceedings against the applicant
for wreaking vengeance due to personal
grudge as alleged by applicant. Further, on
analysing the facts of the case it appears that
very casually opposite party no.2 made
allegation of rape against the applicant,
which
prima
facie
appears
to
be
unconvincing, therefore, this Court is of the
view that allegation of rape was made with
ulterior motive only to harass the applicant,
therefore, the present case falls under the
parameter 7 of Bhajan Lal case (supra).
Thus, in view of the law laid down by the
Apex Court in Bhajan Lal (supra) and
Mahmood Ali (supra) the proceeding
pending against the applicant is liable to be
quashed.

41. Further, in case of Bhajan Lal
(supra) the Apex Court in paragraph 102
(5) observed that where the allegations
made in the FIR or the complaint are so
absurd and inherently improbable then this
Court would be justified to quash the
proceeding.

42. In case at hand, prosecutrix stated
that applicant came at her paternal home
and committed rape with her and before
committing rape he induced her to smell
some substance, thereafter she lost her
consciousness. The story narrated by the
informant appears to be absurd and no
reliance can be placed on such version.
Thus in view of law laid down by the Apex
Court in case of Bhajan Lal (supra) the
proceeding pending against the applicant
from this angle also is liable to be quashed.

43. It is also pertinent to mention here
that as per informant, applicant also
prepared video clip of the alleged rape and
threatened her to post it but the alleged
video clip could not be recovered and
during investigation on query made by
Investigating Officer informant in her
second statement recorded under Section
161 Cr.P.C. stated that applicant already
deleted it. This fact again shows that entire
story narrated by victim i.e. opposite party
no.2 is totally false and baseless.

44. Therefore, from the discussion
made above, it appears that from the face of
it the allegations made against the applicant
appears to be false, concocted and
fabricated one and no prima facie offence
of rape and threatening against the
applicant is made out.

45. The law is settled that the judicial
process should not be instrumental or
oppressive for needless harassment and if
this Court finds that proceeding pending
against the accused is abuse of the process
of law and it has been instituted with mala
fide intention or ulterior motive with a view
for wrecking vengeance then this Court
should exercise the power under Section
482
Cr.P.C.
and
should
quash
the
proceedings pending against the accused to
prevent an abuse of the process of Court
and to secure the ends of justice.

46.

Therefore,
from
ongoing
discussion, the instant application succeeds
176 INDIAN LAW REPORTS ALLAHABAD SERIES
and is hereby allowed. The impugned
proceedings pending against applicant as
well as charge-sheet dated 17.4.2019 filed
against the applicant are hereby quashed.
----------
(2024) 1 ILRA 176
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482 No. 38502 of 2018
With
Application U/S 482 No. 3399 of 2019

Rajeev Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Swetashwa Agarwal, Sri Ashish Kumar
Singh

Counsel for the Opposite Parties:
G.A., Sri Rakesh Dubey

Criminal Law - The U.P. Gangster and
Anti-Social Activities (Prevention) Act,
1986 - Sections 2/3 - in Special Case No.
113 of 2018, arising from FIR No. 125 of 2018,
along with the charge-sheet dated 03.09.2018
and cognizance order dated 26.09.2018. The
court found the FIR, based on a single case
(Case Crime No. 1063 of 2015 under Sections
420, 467, 468, 471, 120-B IPC), lacked evidence
of violence or public order disturbance, essential
for invoking the Gangster Act. (Paras 2, 8-9, 14,
28)
Non-Compliance with Procedural Safeguards
The court held that the gang-chart was
approved mechanically without adherence to
Rules 5, 6, 13, 15, 16, and 17 of the U.P.
Gangster and Anti-Social Activities (Prevention)
Rules, 2021, violating procedural safeguards.
The lack of independent application of mind by
the
District
Magistrate
and
approving
authorities, and absence of recorded reasons,
rendered the FIR and proceedings mala fide and
arbitrary,
breaching
Article
21
of
the
Constitution. (Paras 16-17, 23-24, 26)
Civil Dispute Mischaracterized as Criminal The
allegations stemmed from a civil dispute over
property, with no evidence linking the applicants
to the sale deeds or anti-social activities. The
court noted that the primary party (Neeraj Jain)
involved
in
the
civil
litigation
was
not
prosecuted, indicating arbitrary selection of the
applicants. The absence of criminal history and
property ownership further undermined the
Gangster
Act's
applicability,
making
the
proceedings an abuse of process. (Paras 4-5, 9,
27)
Constitutional Protection and Judicial Scrutiny
The court emphasized the St.'s duty to protect
personal liberty under Article 21 and cautioned
against misuse of the Gangster Act to harass
innocent citizens. Citing Shraddha Gupta Vs St.
of U.P. (2022) and Gulam Mustafa Vs St. of
Karnataka (2023), it held that civil disputes
given a criminal color, without evidence of
gangsterism, warrant quashing under Section
482 Cr.P.to prevent abuse of court processes.
(Paras 21-22, 24-25, 27)

List of Cases cited:

1. Ashok Kumar Dixit Vs St. of U.P., AIR 1987 All
235 (Paras 12, 21)

2. Vimal Shukla Vs St. of U.P., 2019 (1) ARC 299
(Para 21)

3. Shubhankar Gupta Vs St. of U.P., (2019) 1
A.Cr.R. 2 (Para 21)

4. Shraddha Gupta Vs St. of U.P., (2022) 17
SCR 622 (Para 21)

5. Gulam Mustafa Vs St. of Karn., (2023) 5 SCR
354 (Para 22)

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Shri Swetashwa Agarwal,
learned counsel for the applicants and
learned A.G.A. for the State in both the
connected
applications
as
both
the