# Radha Krishna Upadhyay v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-26
- **Case number:** Application U/S 482/378/407 No. 1324 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radha-krishna-upadhyay-v-state-of-u-p-anr-46981
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 395 - punishment for
dacoity, Sections 397 - Robbery, or
dacoity, with attempt to cause death or
grievous
hurt
,
Sections
412
-
Dishonestly recieving property stolen in
the commission of a dacoity, Sections
384
-
punishment
for
extortion
,
Sections 417 - punishment for cheating,
Sections 420 - Cheating and dishonestly
inducing delivery of property, Sections
216A -penalty for harbouring robbers or
dacoits , Arms Act, 1959 - Section 30 -
punishment for contravention of liscence
or rule

Present application moved by applicant, who
was identified by the other co-accused - the
complainant of the case on the basis of CCTV
footage, involved in commission of the crime
under the incident reported on 09.03.2019 -
police submitted the charge sheet on the
basis
of
evidences
collected
during
investigation - Charge framed - Discharge
application, preferred by the petitioner has
been rejected.(Para - 3,6)

HELD:- There is no fact or circumstance
pleaded in the application which manifest the
abuse of power by the trial court while
passing the impugned order .There is no
illegality in the order of the trial court in
rejection of the application to discharge the
accused-applicant
and
to
frame
the
charge.(Para - 9)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of Cases cited: -

## Text

88 INDIAN LAW REPORTS ALLAHABAD SERIES
well
as
judgment
and
order
dated
26.02.2021 and the law laid down by the
Hon'ble Supreme Court in the case of
State of U.P. vs. Brahm Datt Sharma and
Another reported in (1987) 2 SCC 179 in
para 10 that no miscellaneous application is
maintainable in a decided writ petition for
any
direction,
hence,
the
present
application is hereby rejected.
----------
(2021)03ILR A88
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Application U/S 482/378/407 No. 1324 of 2021

Radha Krishna Upadhyay ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Pranshu Agrawal, Divya Singh, Dr. Krishna
Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 395 - punishment for
dacoity, Sections 397 - Robbery, or
dacoity, with attempt to cause death or
grievous
hurt
,
Sections
412
-
Dishonestly recieving property stolen in
the commission of a dacoity, Sections
384
-
punishment
for
extortion
,
Sections 417 - punishment for cheating,
Sections 420 - Cheating and dishonestly
inducing delivery of property, Sections
216A -penalty for harbouring robbers or
dacoits , Arms Act, 1959 - Section 30 -
punishment for contravention of liscence
or rule

Present application moved by applicant, who
was identified by the other co-accused - the
complainant of the case on the basis of CCTV
footage, involved in commission of the crime
under the incident reported on 09.03.2019 -
police submitted the charge sheet on the
basis
of
evidences
collected
during
investigation - Charge framed - Discharge
application, preferred by the petitioner has
been rejected.(Para - 3,6)

HELD:- There is no fact or circumstance
pleaded in the application which manifest the
abuse of power by the trial court while
passing the impugned order .There is no
illegality in the order of the trial court in
rejection of the application to discharge the
accused-applicant
and
to
frame
the
charge.(Para - 9)

Application u/s 482 Cr.P.C. dismissed. (E-6)

List of Cases cited: -

1. Inder Mohan Goswami & anr. Vs St. of
Uttaran. & ors. , (2007) 12 SCC , Page 1

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

(Delivered by Hon'ble Vikas Kunvar Srivastav, J.)

1. The case is called out.

2. Learned counsel for the applicant
and learned A.G.A. for the State are present
in the Court.

3. The present application under
Section 482 Cr.P.C. is moved to quash the
order dated 08.03.2021 passed by the Court
of Additional Sessions Judge, Court No.1,
Lucknow in case arising out of Sessions
Trial No.775/2019, bearing Crime No. 141
/2019, under Sections 395 /397 /412 /384
/417/420/216A of I.P.C. & Section 30 of
Arms Act, 1989, Police Station Gosaiganj,
District Lucknow, therein framing charge
against
the
petitioner
under
Section
395/397/384/417/420 of I.P.C. and to quash
the order dated 01.02.2021, wherein the
3 All. Radha Krishna Upadhyay Vs. State of U.P. & Anr.
89
Discharge Application, preferred by the
Petitioner has been rejected.

4. Perused the F.I.R. No.141/2019,
under
Sections
395/397/412/384/417/420/216A of I.P.C. &
Section 30 of Arms Act, 1989, on the
complaint made by one Ankit Agrahari in
Police Station Gosaiganj, District Lucknow
on 09.03.2019 with regard to incident dated
09.03.2019, happened about 07:00 A.M. in
morning, the said F.I.R. is made annexure
no.3 to the application.

5. On perusal of F.I.R., it appears that
on the date of incident, seven unknown
persons entered into the apartment, over
powered the watch man, knocked the door
of the complainant's flat and when the door
was opened by him, the assailants entered
forcibly in the house. They were armed and
beaten the applicant and his companions.
One assailant was being called by others
with the name of Madhukar Mishra and
alongwith whom two assailants were in the
robes of police men, to whom the
Madhukar Mishra was calling with the
name of Pawan Mishra and Ashish Tiwari.
Four other unknown assailants were
involved in beating and putting in their
bags, the money looted from the hosue.
Their name was not called intentionally by
the other assailants. The informant reported
that at the time of incident, the companions
of
the
complainant,
Sachin
Katare,
Ashiwani Pandey, Kuldeep Yadav, Jitendra
Tomar, Abhisek Singh, Abhisek Verma and
Shubham Gupta were present and got
injuries due to having been beaten up by
the assailants. The assailants fled away
after committing the incident, to whom, he
claimed that he can identify them when
would be confronted face to face. The
complainant
have
assessed
that
the
assailants have looted a huge amount of
money approximately one crore and 85
lacs. The complainant informed that he is
under a profession of trading of coal and
maurang sand, running from the Omex
Residency, Tulip Tower No.104 on rent,
when the incident took place.

6. The police registered the first
information
report
and
started
investigation, three men were identified by
their name and face, however, annexure
no.4, the recovery and arrest memo bears a
fact found in investigation on the basis of
CCTV footage. The police arrested Pradeep
Kumar Singh, Anand Kumar Yadav and
Pawan Kumar identified from the CCTV
footage that alongwith them, the two
unknown persons are known as Radha
Krishna Upadhyay and Yash Raj Tiwari,
who were beating and collecting the
money, kept under the box of the bed and
putting into their bags in the course of
incident.

6. This is pertinent here that the
present application under Section 482
Cr.P.C. with the aforesaid relief is moved
by that Radha Krishna Upadhya, who was
identified by the other co-accused and the
complainant of the case on the basis of
CCTV footage, involved in commission of
the crime under the incident reported on
09.03.2019. The police has submitted the
charge sheet on the basis of evidences
collected during investigation, pursuant to
the F.I.R. dated 09.03.2019.

7. Apparently, without going deeply
into the evidence, there is no doubt that the
present accused-applicant was involved in
the offence as reported by the opposite
party no.2-Ankit Agrahari, the complainant
of
the
F.I.R.
No.141/2019
dated
09.03.2019. It would be pertinent that the
quashing of the F.I.R., the charge sheet or
90 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance by the Court concerned of the
offence on the basis of charge sheet, further
proceeding consequent thereupon may be
quashed
only
on
some
exceptional
circumstances as envisaged decision of
Hon'ble the Supreme Court otherwise a
criminal proceeding which prima facie
genuine cannot be stifled by exercising
inherent power under Section 482 Cr.P.C.

8. Section 482 Cr.P.C. is being quoted
hereunder :-

"482. Saving of inherent powers
of High Court. Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice."

9. The present application is moved
under Section 482 Cr.P.C. and there is no
fact or circumstance pleaded in the
application which manifest the abuse of
power by the trial court while passing the
impugned order dated 01.02.2021 and
08.03.2021. The order dated 01.02.2021
passed by the Sessions Court is made
annexure to the present application which
is a reasoned order. Learned trial court (the
court of Sessions) while considering the
application to discharge moved by the
present applicant, perused the entire facts
and circumstances coming out from the
first information report, prima facie the
evidences collected by the Investigating
Officer in submitting the charge sheet and
concluded that charge can be framed even
on the basis of strong suspicion founded
upon materials before the court which leads
the court a presumptive opinion as to the
existence
of
the
factual
ingredients
constituting the offence alleged. It relied on
the various decisions of Hon'ble the
Supreme Court on reaching this conclusion.
As such, there is no illegality in the order
of the trial court in rejection of the
application to discharge the accusedapplicant and to frame the charge.

10. The Hon'ble Apex Court in the
case of Inder Mohan Goswami and
Another Vs. State of Uttaranchal and
others reported in [(2007) 12 SCC, Page
1], in Paragraph nos. 26, 27 and 32 held as
under:-

"26. In R.P. Kapur Vs. State of
Punjab reported in 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
of
the
proceedings;

(ii) where the allegations in the
first information report or complaint taken
at their fact 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."

27. 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. The 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
should normally refrain from giving a
prima facie decision in a case where all the
facts are incomplete and hazy; more so,
3 All. Radha Krishna Upadhyay Vs. State of U.P. & Anr.
91
when the evidence has not been collected
and produced before the court and the
issues involved, whether factual or legal,
are of such magnitude that they 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 proceedings at any stage."

32. In State of Haryana &
Others v. Bhajan Lal & Others, [1992
Supp(1) SCC 335] this court in the
backdrop of interpretation of various
relevant provisions of the Cr.P.C. 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 of
the Constitution of India or the inherent
powers under section 482 Cr.P.C. gave the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of the court or otherwise to secure
the ends of justice. Thus, this court made it
clear that 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 to myriad kinds of cases
wherein such power should be exercised:

"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 FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

6) Where there is an express legal
bar engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

11. On the basis of aforesaid
discussions, the application under Section
482 Cr.P.C. lacks merit and therefore liable
to be rejected.
92 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Accordingly, the application
under Section 482 Cr.P.C. is dismissed.
----------
(2021)03ILR A92
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482/378/407 No. 3044 of 2017

Shueb Mahmood Kidwai @ Bobby
 ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Shishir Singh Chauhan

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 228 - framing of
charge, Section 232 - reference by Single
Judge - acquittal ,U.P. Gangster and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 - Jurisdiction of the High Court
is not barred in a challenge to an order
framing charge irrespective of the label of a
petition be it under Section 397 or 482
Cr.P.C. or Article 227 of Constitution of India
- challenge to an order of charge should be
entertained in rarest of rare case only to
correct the patent error of jurisdiction and
not to re-appreciate the matter - Availability
of an alternative remedy under the Cr.P.C.
does not put an absolute bar on the exercise
of power under Section 482 Cr.P.C -
applicant cannot as a matter of right, seek
quashing of the proceedings, if there are
good reasons on which the High Court could
decline to exercise its inherent powers.(Para
- 16,18,20)

(B) Constitution of India - Article 215 -
high courts to be courts of record - High
courts have inherent powers in criminal
matters not by virtue of section 482 Cr.P.C
but because the power's inherent in high
court, as superior court of record by virtue
of article 215 of constitution of India as it
is a protector of Fundamental Right. (Para -
11)

Applicant along with 24 others prosecuted
under Section 2/3 of the U.P. Gangster and
Anti-Social Activities (Prevention) Act, 1986 -
charge-sheet - cognizance taken in 2000 -
Sessions Court
framed the charges on
27.08.2002 - prima-facie opinion of learned
single judge - after framing of charge without
supervening development in the form of
judicial
order,
interference
with
the
proceedings of the Trial under Section 482
Cr.P.C. may not be permissible - because
prayer for quashing the entire proceedings
initiated
on
charge-sheet
cannot
be
questioned as the Trial Court has already held
by judicial order passed under Section 228
Cr.P.C. - that prima-facie commission of
offences is made out - Observation - without
questioning the correctness of that order,
allowing an application for quashing of
proceedings would amount to falsifying the
records of the Court where order directing
charge to be framed stands unchallenged -
there is a legal hurdle by virtue of Section 232
Cr.P.C. which provides a remedy to the
applicant, in entertaining this application
under Section 482 Cr.P.C. (Para - 4,7,8)

HELD: - We cannot say that, in the
eventualities mentioned in the referred order,
in no circumstances would an application
under Section 482 Cr.P.C. be maintainable i.e.
it will not lie. The guiding principle is as to
whether in the facts of a case continuance of
proceedings amount to abuse of the process
of the Court and/or whether interference of
the High Court is necessary to secure the
ends of justice or not? Based on these two
principles the facts of each case are required
to be assessed by the High Court when the
power and jurisdiction under Section 482
Cr.P.C. is invoked. (Para - 24)

Reference answered. (E-6)

List of Cases cited: -