# Prem Nath Mishra & Ors v. State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-02
- **Case number:** Application U/S 482 No. 18853 of 2024
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-nath-mishra-ors-v-state-of-u-p-anr-52305
- **Pages:** 6

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections 323, 452, 504 & 506summoning order-handling of rival NCRsfiling of chargesheet-Subsequent criminal
complaint-the
present
case
revolves
around
the
legal
representation
and
procedural handling of rival NCRs (Non
Cognizable
Reports)
and
subsequent
criminal
complaints
under
IPC-It
examines
the
court
discretion
in
summoning the accused under additional
sections of the IPC based on the evidence
presented in both the NCRs and the
subsequent complaint-It underscores the
importance of due process in handling
complaints when initial investigations may
not fully address all potential charges,
specifically
highlighting
the
court's
authority to summon the accused under
more severe charges if warranted by the
evidence-multiple proceedings on same
set of facts could not be proceeded further
and it could be quashed if they are filed
with malafide intention- Hence, impugned
order set aside.(Para 1 to 15)

B. Legal error committed by the trial court
is that despite being aware that an NCR
was already lodged. No police report was
summoned to ascertain outcome of NCR
and facts thereof only on ground that
224 INDIAN LAW REPORTS ALLAHABAD SERIES
some set of allegations, both NCR/FIR and
criminal complaint was filed, itself would
not be a malafide approach rather the
court
has
to
look
into
attending
circumstances to ascertain whether it
was a creature of malafide which is not
evident in the present case.(Para 13, 14)

The application is allowed. (E-6)

List of Cases cited:

Krishna Lal Chawla & anr. Vs. St. of U.P. & anr.
(2021) 5 SCC 435

## Text

8 All. Prem Nath Mishra & Ors. Vs. State of U.P. & Anr.
223

41. Appeal is accordingly allowed and
the impugned judgement and order dated
06.11.2009
passed
by
the
learned
Additional Sessions Judge, Court No.6,
Ghaziabad in Sessions Trial No.201 of
2008, arising out of Case Crime No.444 of
2007
convicting
and
sentencing
the
accused-appellant for life imprisonment
under Section 302 IPC and in Sessions
Trial No.189 of 2008, arising out of Case
Crime No.478 of 2007, convicting and
sentencing the accused-appellant for one
year rigorous imprisonment under Section
25/4 Arms Act is hereby set aside and the
accused-appellant is acquitted from all the
charges.

42. Accused-appellant is in jail. He
shall be released forthwith unless wanted in
any other case.

43. Before parting, we appreciate Sri
Krishna Kumar, learned amicus curiae,
who has thoroughly and meticulously
prepared the case. We are impressed with
the arguments advanced by him. We direct
the State Legal Services Authority to pay
Rs.15,000/- (Rupees Fifteen Thousand) to
Sri Krishna Kumar, learned amicus curiae
as honorarium for his valuable assistance
in disposal of this appeal. The honorarium
will paid to him within fifteen days. Office
is directed to send a copy of this
judgement and order to the State Legal
Services
Authority
for
necessary
compliance.

44. Let lower court record be sent
back forthwith along with a copy of this
judgement and order for compliance.
----------
(2024) 8 ILRA 223
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2024
BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 18853 of 2024

Prem Nath Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sarvesh Kumar Mishra, Sri Deepak
Upadhyay

Counsel for the Opposite Parties:
G.A., Sri Sanjeev Kumar Pandey, Sri Vijay
Kumar Pandey

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections 323, 452, 504 & 506summoning order-handling of rival NCRsfiling of chargesheet-Subsequent criminal
complaint-the
present
case
revolves
around
the
legal
representation
and
procedural handling of rival NCRs (Non
Cognizable
Reports)
and
subsequent
criminal
complaints
under
IPC-It
examines
the
court
discretion
in
summoning the accused under additional
sections of the IPC based on the evidence
presented in both the NCRs and the
subsequent complaint-It underscores the
importance of due process in handling
complaints when initial investigations may
not fully address all potential charges,
specifically
highlighting
the
court's
authority to summon the accused under
more severe charges if warranted by the
evidence-multiple proceedings on same
set of facts could not be proceeded further
and it could be quashed if they are filed
with malafide intention- Hence, impugned
order set aside.(Para 1 to 15)

B. Legal error committed by the trial court
is that despite being aware that an NCR
was already lodged. No police report was
summoned to ascertain outcome of NCR
and facts thereof only on ground that
224 INDIAN LAW REPORTS ALLAHABAD SERIES
some set of allegations, both NCR/FIR and
criminal complaint was filed, itself would
not be a malafide approach rather the
court
has
to
look
into
attending
circumstances to ascertain whether it
was a creature of malafide which is not
evident in the present case.(Para 13, 14)

The application is allowed. (E-6)

List of Cases cited:

Krishna Lal Chawla & anr. Vs. St. of U.P. & anr.
(2021) 5 SCC 435

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. In present case, it is not in dispute
that in regard to alleged occurrence took
place on 13.03.2021, rival NCR were
lodged.

2. It is further not in dispute that in
cross NCR filed by applicants, after
investigation, since it was found that a
cognizable offence took place, therefore, a
charge sheet was filed under Sections 323,
325, 504 IPC wherein cognizance was
taken and opposite party no.2 and others
were summoned.

3. It is further not in dispute that in
the NCR filed by complainant herein, a
charge sheet was filed only under Sections
323, 504 IPC on 18.03.2021 whereon vide
order dated 03.04.2023, in terms of Section
2(d)
Cr.P.C.,
the
charge
sheet
was
considered to be a complaint case and
present applicants were summoned and that
order was not challenged at the instance of
either party.

4. After filing of charge sheet as
referred above for non-cognizable offence,
complainant being felt aggrieved that no
charge sheet was filed under Section 452
and 506 IPC i.e. cognizable offence, filed a
criminal complaint on 01.10.2022 for same
occurrence
allegedly
occurred
on
13.03.2021. In the application, he has
disclosed about NCR and for reference,
relevant paragraph is mentioned below -:

"प्रार्थी दिारा र्थाना जफराबाद में ददये
र्ये प्रार्थगना पि पर रपट दजग न करके संक्षेप में
एन०सी०आर०सं० 43/2021 धारा 323, 504
आई०पी०सी० दजग कर भलये। उपरोक्त सभी
मुण्मजमानों दिारा घर में घुसकर मारने िाली
बात ि जान से मारने की धमकी देने िाली बात
नहीं भलखा। प्रार्थी मजबूर होकर पूरी घटना की
ररपोटग
जररये
रण्जस्टिग
िाक
ददनांक
24/03/2021 श्रीमान् पुभलस अधीक्षक महोदय
जौनपुर को ददया कफर भी पुभलस दिारा आज
तक कोई कायगिाही नहीं की र्यी र्थाना
जफराबाद की पुभलस प्रार्थी के मामले में
मुण्मजमानो को बिा रही है पूरी रपट प्रार्थी की
नहीं भलखी इसभलए प्रार्थी श्रीमान जी के समक्ष
पररिाद पि प्रस्तुत कर रहा है न्यायदहत में
मुण्मजमान उपरोक्त को जुमग दफात उपरोक्त में
तलब कर िाद वििारर् दण्डित ककया जाना
आिकयक है।

अतः श्रीमान जी से प्रार्थगना है
ककअभभयुक्त प्रेमनार्थ भमश्र सचिन उफग सचिन्र
भमश्र ि सुशीला देिी को जुमग दफात 323, 504,
506, 452 भा०द०वि० में तलब कर िाद वििारर्
दण्डित करने की कृपा करें ताकक न्याय हो।"

5.

Aforesaid
complaint
was
considered as a complaint case. Trial Court
after considering statements recorded under
8 All. Prem Nath Mishra & Ors. Vs. State of U.P. & Anr.
225
Sections 200 and 202 Cr.P.C. summoned
present applicants by impugned order dated
26.04.2024 under Sections 323, 452, 504,
506 IPC. For reference, said order in its
entirety is quoted below -:

"ददनांक 26.04.2024

पिािली आदेशार्थग पेश हुई। पररिादी
के विदिान अचधिक्ता को सुना तर्था पिािली
का सम्यक पररशीलन ककया।

संक्षेप में पररिाद पि के कर्थानक इस
प्रकार है कक ददनांक 13.03.2021 समय करीब
08 बजे सुबह उक्त प्रेमनार्थ भमश्र ि सचिन उफग
सचिन्र अपने-अपने हार्थ में लाठी लेकर
सुशीला एक राय होकर मारने की तैयारी करके
प्रार्थी के घर पर िढ़ आये और र्ाभलयां देते हुए
कहे कक तुम्हारी दहम्मत कैसे पिी हमारे खेत से
पाइप ले जाने की प्रार्थी ने र्ाली देने से मना
ककया। इस पर सुशीला ने ललकारते हुए कहा
कक यह कमीना बहुत जबान िला रहा है।
मारकर हार्थ पैर तोि दो। प्रार्थी जान बिाने के
भलए घर में भार्ा कक प्रेमनार्थ, सचिन ि सुशीला
जबरजस्ती प्रार्थी के घर मारने की तैयारी करके
घुस र्ये और लाठी, लात मुक्का से मारने लर्े।
शोर सुनकर प्रार्थी को बिाने प्रार्थी का लिकी
पीयूस ि वपता रामाश्रय आये तो उपरोक्त लोर्ों
ने उन लोर्ों को भी मारापीटा और जान से
'भारने की धमकी दी। प्रार्थी ने घटना के
सम्बन्ध में एक भलखखत प्रार्थगना पि र्थाना
जफराबाद में ददया कोई कायगिाही नहीं हुई। तब
प्रार्थी ने श्रीमान् पुभलस अधीक्षक जौनपुर को
सूिना ददया कफर भी कोई कायगिाही नहीं हुई।

पररिादी के विदिान अचधिक्ता को
तलबी के त्रबन्दू पर सुना र्या पिािली पर
उपलब्ध पररिादी के बयान अंतर्गत धारा 200
दं० १०सं० ि उसके र्िाहान सी०िब्लू० 1 जय
कान्त भमश्र ि सी०िब्लू० 2 राजेश कुमार के
बयान अंतर्गत धारा 202 दं०प्र०सं० एिं पिािली
पर उपलब्ध प्रपिों का अिलोकन ककया।

अतः पिािली पर इस स्तर पर
उपलब्ध साक्ष्य के आधार पर विषक्षीर्र्
प्रेमनार्थ भमश्र, सचिन उफग सचिन्द भमश्र ि
सुशीला देिी के विरुदध प्रर्थम दृष््या अंतर्गत
धारा 323,452,504,506 आई.पी.सी. का अपराध
र्दठत होना प्रतीत होता है। ऐसे में विपक्षीर्र् /
अभभयुक्तर्र् उक्त धाराओं में तलब ककये
जाने योग्य है।"

6. Sri Deepak Upadhyay, learned
counsel for applicants has heavily placed
reliance on Krishna Lal Chawla and
another vs. State of U.P. and another,
(2021) 5 SCC 435 that on similar set of
facts as well as on similar set of allegations,
proceedings arising out of police report as
well as proceedings of complaint case
could not proceed together if they are
instituting by misleading the Court and
abusing its process of law only with a view
to harass the helpless litigants and relevant
paragraphs thereof are quoted below -:

"23. As aforesaid, the trial courts
and the Magistrates have an important role
in curbing this injustice. They are the first
lines of defence for both the integrity of the
criminal justice system, and the harassed
and distraught litigant. We are of the
considered opinion that the trial courts have
the power to not merely decide on acquittal
226 INDIAN LAW REPORTS ALLAHABAD SERIES
or conviction of the accused person after
the trial, but also the duty to nip frivolous
litigations in the bud even before they reach
the stage of trial by discharging the accused
in fit cases. This would not only save
judicial time that comes at the cost of
public money, but would also protect the
right to liberty that every person is entitled
to under Article 21 of the Constitution. In
this context, the trial Judges have as much,
if not more, responsibility in safeguarding
the fundamental rights of the citizens of
India as the highest court of this land.

24. As recorded by us above, the
present
controversy
poses
a
typical
example of frivolous litigants abusing court
process to achieve their mischievous ends.
In the case before us, the Magistrate was
aware of the significant delay in the filing
of private complaint by Respondent 2, and
of the material improvements from the
earlier NCR No. 158 of 2012 which were
made in the private complaint. It was
incumbent on the Magistrate to examine
any possibility of abuse of process of the
court, make further enquiries, and dismiss
the frivolous complaint at the outset after
judicial application of mind.

25. However, this was not done
- the Magistrate issued process against the
appellants by order dated 4-4-2019, and
this controversy has now reached this Court
for disposal.

26. It is a settled canon of law
that this Court has inherent powers to
prevent the abuse of its own processes, that
this Court shall not suffer a litigant utilising
the institution of justice for unjust means.
Thus, it would be only proper for this Court
to deny any relief to a litigant who attempts
to pollute the stream of justice by coming
to it with his unclean hands. Similarly, a
litigant pursuing frivolous and vexatious
proceedings cannot claim unlimited right
upon court time and public money to
achieve his ends.

27. This Court's inherent powers
under Article 142 of the Constitution to do
"complete justice" empowers us to give
preference to equity and a justice-oriented
approach
over
the
strict
rigours
of
procedural law (State of Punjab v. Rafiq
Masih [State of Punjab v. Rafiq Masih,
(2014) 8 SCC 883 : (2014) 4 SCC (Civ)
657 : (2014) 6 SCC (Cri) 154 : (2014) 3
SCC (L&S) 134] ). This Court has used this
inherent
power
to
quash
criminal
proceedings where the proceedings are
instituted with an oblique motive, or on
manufactured
evidence
(Monica
Kumar v. State
of
U.P. [Monica
Kumar v. State of U.P., (2008) 8 SCC 781 :
(2008) 3 SCC (Cri) 649] ). Other decisions
have held that inherent powers of High
Courts provided in Section 482 CrPC may
be utilised to quash criminal proceedings
instituted after great delay, or with vengeful
or mala fide motives. (Sirajul v. State of
U.P. [Sirajul v. State of U.P., (2015) 9 SCC
201 : (2015) 3 SCC (Cri) 749] ; State of
Haryana v. Bhajan
Lal [State
of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426 : AIR 1992 SC
604] .) Thus, it is the constitutional duty of
this Court to quash criminal proceedings
that were instituted by misleading the court
and abusing its processes of law, only with
a view to harass the hapless litigants.

28. In this Court's quest for
complete justice, and to bring peace
between the parties, who are fighting
various litigations since 2006, we exercise
our powers under Article 142 to quash all
the litigations between the parties arising
out of this incident."

7. Sri Vijay Kumar Pandey, learned
counsel for opposite party-2 has not able to
dispute above referred legal position,
8 All. Prem Nath Mishra & Ors. Vs. State of U.P. & Anr.
227
however, he has submitted that in case any
proceeding has to be quashed that criminal
proceeding arising out of a charge sheet,
since Magistrate has, after considering
statements recorded u/s 200 and 202
Cr.P.C., to summon the applicants under
Sections 323, 504, 506 and 452 IPC.
Otherwise,
Magistrate
could
follow
procedure prescribed under Section 210
Cr.P.C. i.e. procedure to follow when there
is a complaint case and police investigation
in respect of the same offence.

8. Heard learned counsel for parties
and perused the record.

9. It is not much in dispute that on
basis of alleged occurrence, complainant
has first filed an NCR wherein after
investigation, charge sheet was filed for
non-cognizable offence and trial Court
considered it to be a complaint case under
Section 2(d) Cr.P.C. and summons were
issued to applicants for offence u/s 323 and
504 IPC.

10. After charge sheet was filed and
before summons were issued, complainant
has filed a criminal complaint disclosing
facts
of
NCR
that
applicants
have
committed cognizable offence and trial
Court
vide
impugned
order,
after
considering statement u/s 200 and 202
Cr.P.C. has summoned the applicants for
offence u/s 323, 504, 506 and 452 IPC.

11. Court takes note of Krishna Lal
Chawla (supra) that multiple proceedings
on same set of facts could not be proceeded
further and it could be quashed if they are
attended with malafide and initiated only to
harass accused persons.

12. In present case, there is no
argument on behalf of learned counsel for
applicants that impugned passed u/s 204
Cr.P.C. itself is illegal as no requisite
reason
was
assigned
that
there
are
sufficient grounds to proceed against
applicants as well as that it was not based
on material available on record i.e.
complaint, statement recorded u/s 200 and
202 Cr.P.C. Relevant part of impugned
order has already been quoted in preceding
paragraph.

13. In the present case, complainant
has specifically stated about lodging of
NCR in the complaint and essentially it was
reason to file complaint since no FIR was
lodged. The applicants have not brought on
record before trial Court about factum of
filing charge sheet for non-cognizable
offence in pursuance of NCR and that it
was treated as a complaint case under
Section 2(d) Cr.P.C. The conduct of
complainant was bonafide and has no
malice as he has come up with clean hands.

14. Legal error committed by trial
Court is that despite being aware that an
NCR was already lodged. No police report
was summoned to ascertain outcome of
NCR and facts thereof only on ground that
on some set of allegations, both NCR/FIR
and criminal complaint was filed, itself
would not be a malafide approach rather
the Court has to look into attending
circumstances to ascertain whether it was a
creature of malafide which is not evident in
present case.

15. In aforesaid circumstances, this
Court is of considered opinion that above
referred impugned order becomes illegal
and accordingly, impugned order dated
26.04.2024 passed in Case No. 105/2022
(Ajay vs. Prem Nath and others) u/s 323,
504, 506, 452 IPC, Police Station-
Zafrabad, District- Jaunpur, pending before
228 INDIAN LAW REPORTS ALLAHABAD SERIES
ACJM-II, Jaunpur is set aside and matter is
remitted back to concerned trial Court to
pass a fresh order after taking note of
factum about charge sheet filed in NCR
lodged by complainant on non-cognizable
offence and order passed under Section
2(d) Cr.P.C. as well as while passing fresh
order, concerned Court would also take
note of Krishna Lal Chawla (supra) after
hearing the complainant.

16. Application stands disposed of
with above observations.

17. Registrar (Compliance) to take
steps.
---------
(2024) 8 ILRA 228
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 3752 of 2024

Majid Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Mohammad Fateh

Counsel for the Opposite Parties:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure-1973-Section
125
&
126-
Section 482 Cr.P.C. cannot become a tool
to frustrate the very object of Section 125
Cr.P.C. merely on objection of jurisdiction-
Section
126
Cr.P.C.
provides
that
proceedings under Section 125 Cr.P.C.
may be taken against any person in any
district where he is residing or where he
or his wife resides. Therefore, if wife
resides at Bareilly, she can file complaint
under Section 125 Cr.P.C. at Bareilly also

Petition Dismissed. (E-15)

List of Cases cited:

1. Captain Ramesh Chander Kaushal Vs Mrs.
Veena Kuashal & ors., AIR 1978 SC 1807)

2. Smt. Dukhtar Jahan Vs Mohammed Farooq
(1978)1 SCC 624;

3. Vimla (K.) Vs Veeraswamy (K.) (1991)2 SCC
375;

4. Kirtikant D. Vadodaria Vs St.of Guj. &
anr.(1996)4 SCC 479;

5. Chaturbhuj Vs Sita Bai (2008)2 SCC 316

6.
Bhuwan
Mohan
Singh
Vs
Meena
&
ors.(2015)6 SCC 353.

7. Nirman Sagar Vs Smt. Monika Sagar
Chaudhari & anr.(Criminal Revision No. 3060 of
2021), decided on 01.04.2022

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. The Court proceed to decide
present case, i.e., an objection with regard
to jurisdiction of an application filed under
Section 125 Cr.P.C., in the background that
Supreme Court in a judgment passed about
four and half decades ago, has observed
that provisions of Section 125 Cr.P.C. is a
measure of social justice and specially
enacted to protect women and children and
falls within the constitutional sweep of
Article 15(3) reinforced by Article 39 of
the Constitution. (See, Captain Ramesh
Chander Kaushal vs. Mrs. Veena Kuashal
and others, AIR 1978 SC 1807)

2. Above observation has been
followed in Smt. Dukhtar Jahan vs.
Mohammed Farooq (1978)1 SCC 624;