# Rajesh Kumar Giri v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 4 ILRA 359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Case number:** Application u/s 482 No. 5260 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-giri-v-state-of-u-p-ors-opp-parties-49928
- **Pages:** 11

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 354-A, 504,
506 & 7/8 -The Protection of Children
from Sexual offences Act, 2012-Quashing
of
entire
criminal
proceedings-
360 INDIAN LAW REPORTS ALLAHABAD SERIES
counterblast case-complainant lodge the
FIR against the applicant after six years as
the
applicant
filed
PIL
against
the
complainant for embezzlement of money
when
he
was
village
Pradhan-It
is
impossible that first person harboured
enmity with second person for a long
period of more than six years-More so,
delay in lodging the FIR is not relevant in
a case where defamation of a victim who
is alleged to be 13 years old is involvedExercise of power u/s 482 to quash a
criminal proceeding is only when an
allegation made in FIR or charge-sheet
does not constitute ingredients of offence
alleged-No mini trial can be conducted by
High Court-on the basis of investigation
and material collected there appear to be
sufficient ground for proceeding against
the accused.(Para 1 to 26)

The application is dismissed. (E-6)
List of Cases cited:

## Text

4 All. Rajesh Kumar Giri Vs. State of U.P. & Ors.
359

15. It is settled law that at the stage of
summoning or framing of charge, the
accused cannot ordinarily invoke section 91
Cr.P.C. However, the Court being under the
obligation to impart justice and to uphold
the law, is not debarred from exercising its
power, if the interest of justice in a given
case is so require, even if the accused may
have no right to invoke section 91 and the
Court is satisfied that the material available
with the investigator, not made part of the
charge sheet, has crucial bearing on the
issue of summoning or framing of charge, it
can
always
direct
the
investigator/prosecutor/trial Court to place
the same before the Court concerned for
proper adjudication of the matter.

16. This Court also feels that when
the initial order taking cognizance is bad,
therefore, consequential order framing
charges against the applicant has to be set
aside.

17. It is a settled legal proposition that
if initial action is not in consonance with
law, all subsequent and consequential
proceedings would fall through for the
reason that illegality strikes at the root of
the order. The aforesaid has been held by
the Apex Court in the case of State of
Punjab vs. Davinder Pal Singh Bhullar
and others reported in (2011) 14 SCC 770.

18. Similarly, the Apex Court in the
case of Mangal Prasad Tamoli vs.
Narvadeshwar Mishra reported in (2005)
3 SCC 422, has held that if an order at the
initial stage is bad in law, then all further
proceedings, consequent thereto, will be
non est and have to be necessarily set aside.

19. In view of the above discussion,
the impugned order dated 03.12.2022 and
consequential
order
dated
02.03.2022
framing charges against the applicant,
cannot be legally sustained and are hereby
set aside. Matter is remitted back to
Additional District and Sessions Judge,
Fast Track Court, Second, District Hapur
for decision afresh. While deciding the
matter, he shall pass a reasoned and
speaking order, keeping in mind the
relevant provisions of Section 91 of Cr.P.C.
and the observation made by this Court,
preferably within a period of one month
from the date of production of certified
copy of this order, if there is no legal
impediment.

20. With the aforesaid observation
and direction, the application u/s 482
Cr.P.C. is allowed.

21. Office is directed to communicate
this order to the Court concerned forthwith.
----------
(2023) 4 ILRA 359
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.03.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Application u/s 482 No. 5260 of 2023

Rajesh Kumar Giri ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Dipak Srivastava

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860 - Sections 354-A, 504,
506 & 7/8 -The Protection of Children
from Sexual offences Act, 2012-Quashing
of
entire
criminal
proceedings-
360 INDIAN LAW REPORTS ALLAHABAD SERIES
counterblast case-complainant lodge the
FIR against the applicant after six years as
the
applicant
filed
PIL
against
the
complainant for embezzlement of money
when
he
was
village
Pradhan-It
is
impossible that first person harboured
enmity with second person for a long
period of more than six years-More so,
delay in lodging the FIR is not relevant in
a case where defamation of a victim who
is alleged to be 13 years old is involvedExercise of power u/s 482 to quash a
criminal proceeding is only when an
allegation made in FIR or charge-sheet
does not constitute ingredients of offence
alleged-No mini trial can be conducted by
High Court-on the basis of investigation
and material collected there appear to be
sufficient ground for proceeding against
the accused.(Para 1 to 26)

The application is dismissed. (E-6)
List of Cases cited:
1. M/s Eicher Tractor Ltd. & ors. Vs Harihar
Singh & anr.(2009) 1 JIC 245 SC

2. St. of Haryana & ors. Vs Bhajan Lal & ors.
(1992) Suppl. 1 SCC 335

3. R.P. Kapur Vs St. of Punj. (1960) AIR SC 866

4. St. of Haryana Vs Bhajan Lal (1992) SCC (Cr.)
426

5. St. of Bih. Vs P.P. Sharma (1992) SCC (Cr.)
192

6. Zandu Pharmaceuticals Works Ltd. Vs Md.
Saraful Haq & anr. (2005) SCC (Cr.) 283, Para 10

7. Md. Allauddin Khan Vs St. of Bih. & ors.
(2019) 0 Supreme SC 454

8. Nallapareddy Sridhar Reddy Vs St. of A.P. &
ors. (2020) 0 Supreme SC 45

9. Rajeev Kaurav Vs Balasahab & ors. (2020) 0
Supreme SC 143

10. St. of U.P. Vs Akhil Sharda & ors. (2022) SCC
OnLine SC 820
(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This application under Section 482
Cr.P.C. has been filed by the applicant with
a prayer to quash the charge-sheet no. 40 of
2022
dated
28th
September,
2022,
cognizance
taking
order
dated
15th
November,
2022
as
well
as
entire
proceedings of Special Trial No. 1191 of
2022 (State VS. Rajesh Kumar Giri),
arising out of Case Crime No. 166 of 2021,
under SectionS 354-A, 504, 506 I.P.C. as
also under Sections 7/8 POCSO Act, Police
Station-Khakheru,
District-Fatehpur,
pending in the Court of Additional
Sessions/Special Judge (POSCO Act),
Fatehpur.

2. Heard Mr. Dipak Srivastava,
learned counsel for the applicant and the
learned A.G.A. for the State.

Case of the Applicant

3. Father of the applicant, namely,
Bholi Giri is a farmer and social person in
his locality. The complainant was village
pradhan of the applicant's village for the
period between 2011 to 2015. When the
complainant
was
village
pradhan
he
embezzled public money qua development
work of village against which the father of
the applicant, namely, Bholi Giri has made
complaint
against
him
before
the
administrative authority of the district.
When no action has been taken on the said
complaint, Bholi Giri filed a PIL before this
Court bearing P.I.L. No. 29962 of 2015 in
which this Court has passed order on
21.05.2015 directing Bholi Giri to make an
application before the District Magistrate,
Fatehpur, who inturn was directed to pass
such orders in accordance with law thereon.
Pursuant to the above order of this Court
4 All. Rajesh Kumar Giri Vs. State of U.P. & Ors.
361
Bholi Giri filed an application before the
District
Magistrate
Fatehpur
for
its
compliance, but no action has been taken
due
to
political
power
of
complainant/opposite party, namely, Dhram
Singh Pal. On 29th June, 2015, Bholi Giri
preferred an application under Section 156
(3) Cr.P.C before concerned court below
qua development work in the village
against complainant, who was holding the
post of pradhan. The complainant had
harboured enmity with applicant' family
because he has been defeated in the
election of 2015 as Bholi Giri has strongly
opposed his candidature as Pradhan and
supported his opponent.

4. The Complainant himself went into
house of applicant on 08.07.2021 for taking
revenge along with his companions, when
he did not find any male person, he
disrobed the sister of applicant forcefully.
Just after knowing such incident with her
daughter, applicant's father went to the
Police Station on the same day i.e. 8th July,
2021 for lodging the FIR against the
complainant and his companions but the
Police has not lodged the report. After that,
Bholi Giri made an application before the
higher Police Officers through registered
post on 16th July, 2021, on which again
nothing has been done. On one hand the
report of Bholi Giri has not been lodged
whereas on the other hand under the
pressure
of
present
village
Pradhan,
namely, Lal @ Durga Paswan, the FIR of
complainant has been lodged against the
applicant i.e. son of Bholi Giri with false
and frivolous allegations, as he has
concerned with the allegations made in the
FIR.

5. Version as unfolded in the FIR is
that on 8th July, 2021 at 06:00 p.m.
(evening) when the daughter of the
complainant (for short "victim") aged about
13 years was returning her home with
buffaloes from the field, then on the way,
he caught her hand and started bad talking
and molesting her with bad intentions.
When she protested he abused her by
saying as to why she did not talk with him.
When the victim came to her house and
disclosed entire incident to the complainant
and his wife, he went to the house of the
applicant along with his wife, where the
applicant also abused and threatened them.

6. Initially the Police has deliberately
lodged the FIR in wrong sections of the
provisions POCSO Act but on the notice
being issued by the Additional District
Judge/Special
Judge
(POCSO
Act),
Fatehpur, the FIR has been lodged under
Sections 7/8 POCSO Act also along with
other charging sections.

7. During the course of investigation
the statement of first informant is recorded
by the investigating officer under section
161 of Cr.P.C, in which he supported the
prosecution version as narrated in the first
information
report.
In
the
statement
recorded under Section 161 Cr.P.C. the
victim has improved the version as
unfolded in the FIR and the statement of
the complainant under Section 161 Cr.P.C.
by stating that the applicant has beaten her
by slaps twice. The victim has also been
examined by Doctor, Community Health
Centre, Khakharau, District Fatehpur and in
his report dated 12th July, 2021, the Doctor
has opined that no external injury has been
found on the victim. On 18th August, 2021,
the statement of the victim has been
recorded under Section 164 Cr.P.C. in
which he has changed her version. The date
of birth of the victim is 1st June, 2008
which has been confirmed by the Principal
of School concerned. Since the Police was
362 INDIAN LAW REPORTS ALLAHABAD SERIES
continuously harassing the applicant and
his family, father of the applicant Bholi Giri
made an application 20.01.2022 before the
Superintendent of Police and concerned
Station House Officer for fair and partial
investigation. In this regard Bholi Giri has
also preferred Criminal Misc. Writ petition
No.2368 of 2022 before this Court which is
pending. The Police has deliberately
submitted
charge-sheet.
After
being
aggrieved from the harassment done by the
Police, the applicant has approached this
Court for seeking anticipatory bail under
Section 41-A by means of Criminal Misc.
Anticipatory Bail Application No. 1796 of
2022, which has been disposed by this
Court vide order dated 10th March, 2022
by observing that there is no need for
anticipatory bail as the applicant cannot be
arrested without complying with the
provisions of Section 41 and 41-A Cr.P.C.
This has refused the prayer of the applicant
for
grant
of
anticipatory
bail.
The
concerned police is continuously harassing
family of Bholi Giri including the applicant
and his female members. When applicant
has approached this Court for getting relief,
the Investigating officer has deliberately
filed the charge-sheet on 28.09.2022 and he
has failed to consider the evidence on
record. On submission of the charge-sheet,
the
concerned
Magistrate
has
taken
cognizance on 15.11.2022.

8. Submissions advanced on behalf
of the applicant

(i) the applicant is preparing for
selection in Indian Force. As a counter blast
to the complaint as well as public interest
litigation filed by the father of the
applicant, namely, Bholi Giri and the
complainant has been defeated in the
election of village Pradhan in the year 2015
due to opposition of Bholi Giri, the present
case
has
been
engineered
by
the
complainant to wreak vengeance, which is
not permissible in view of the law laid
down by M/s Eicher Tractor Ltd. and
others Vs. Harihar Singh and another,
2009(1) JIC 245 (SC).

(ii) The applicant has nothing to do
with victim as the applicant was not present
in the village on 8.7.2021.

(iii) From the perusal of entire
prosecution case no offence is made out
against the applicant which is narrated in
aforesaid FIR and the charges as levelled
against the applicant is absolutely incorrect
and concocted., as allegations made in the
first
information
report
against
the
applicant are without any substance and no
such incident has taken place.

(iv) The applicant is 22 years son of
poor farmer and he has no previous
criminal History to his credit nor he has
convicted by any competent court of law.

(v) There is inordinate delay in
lodging the said first information report
which creates a serious shadow of doubt on
the veracity of first information report.

(vi) The judgment of the Hon'ble
Surpeme Court in the case of State of
Haryana & Others Vs. Bhajan Lal &
Others reported in 1992 Suppl. (1) SCC
335 has been referred for drawing the
attention of the Court to the issue that in
sever categories of cases, power under
Section 482 Cr.P.C. can be exercised by
this Court for quashing the malicious
proceedings. The case of the applicant is
covered
with
the
seventh
category
mentioned in the judgment of the Hon'ble
Supreme Court in the case of Bhajan Lal
(Supra).

Learned counsel for the applicants,
therefore,
submitted
that
the
present
criminal proceedings initiated against the
applicants are not only malicious but also
4 All. Rajesh Kumar Giri Vs. State of U.P. & Ors.
363
amount to an abuse of the process of the
Court.

On the cumulative strength of the
aforesaid submissions, it is submitted by
learned counsel for the applicants that the
proceedings of the above mentioned
complaint case are liable to be quashed by
this Court.

9. Per contra, learned A.G.A. has
submitted that from the perusal of the
material on record and looking into the
facts of the case at this stage it cannot be
said that no offence is made out against the
applicants. All the submissions made relate
to the disputed questions of fact, which
cannot be adjudicated upon by this Court
under Section 482 Cr.P.C. He also submits
that it is settled law that the evidence
produced by the accused in his defence
cannot be looked into by the Court, except
in very exceptional circumstances, at the
initial stage of the criminal proceedings. It
is trite law that the High Court cannot
embark upon the appreciation of evidence
while considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings. It is clear from the law laid
down by the Apex Court as well as by this
Court in catena of judgments that if a prima
facie case is made out disclosing the
ingredients of the offence alleged against
the accused, the Court cannot quash a
criminal proceeding. On the cumulative
strength of the aforesaid, learned A.G.A.
urges that offence under Sections 354-A,
504, 506 I.P.C. as also under Sections 7/8
POCSO Act is made out against the
applicants. The present application under
Section 482 Cr.P.C. is devoid of merit and
the same is liable to be dismissed by this
Court.

10. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present application.

11. From the perusal of the entire
material available on record, this Court
finds that the case set up by the learned
counsel for the applicant is that as a counter
blast to the complaint and PIL filed by the
father of the applicant, namely, Bholi Giri
in the year 2015 against the complainant,
when he was holding the post of Village
Pradhan qua embezzlement of public
money being made by him, has no legs to
stand on the ground that the present FIR
has been lodged by the complainant against
the applicant on 9th July, 2021 for the
alleged incident dated 8th July, 2021 i.e.
after more than six years of the aforesaid
complaint and PIL. It is impossible to
believe for any common man of this
country that a person against whom a
complaint was filed by another person and
for that reason the first person harboured
enmity with second person, will take for a
long period of more than six years to take
revenge by implicating his son in a false
and frivolous case. For example: Person-A
will take revenge from Person-B in the year
2021 by implicating his son in a false and
frivolous case as Person-B has filed
complaint against Person-A in the year
2015. This court respects the decision of
the highest court i.e. Hon'ble Supreme
Court in the case M/s. Eicher Tractor
(Supra) relied upon by the learned counsel
for the applicant but the said case will not
apply in the present case, as this is not the
case of counter blast.

12. The submission made by the
learned counsel for the applicant that the
present
proceedings
initiated
by
the
complainant/opposite party no.2 against the
applicant are malicious proceedings has
only been stated to be rejected on the
364 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that the reason assigned for the
same that in the year 2015 when the
complainant was holding the post of
Village Pradhan, the father of the applicant,
namely, Bholi Giri made complaint against
him qua embezzlement of public money
before the authorities concerned and also
opposed his candidature in the election of
village pradhan is too weak. This Court
may reiterate again that a person for taking
revenge cannot wait seven years by
implicating his enemy mala fide in a
criminal case. Hence, the judgment of the
Apex Court in the case of Bhajan Lal
(Supra) relied upon by the learned counsel
for the applicant is not applicable in the
facts of the present case. No other reasons
have
been
brought
on
record
for
establishing
his
submission
that
the
applicant has been implicated mala fidely
in the present case by the complainant.

13. This Court also does not accept the
case of the applicant that on 8th July, 2021 the
applicant has not committed any offence as
alleged by the prosecution and on the same date
it was the complainant that he entered into the
house of the applicant along with his
companions where there was no male members
of family of the applicant, he molested his sister
and also abused her along with his companions
as no such complaint has been brought on
record along with the present application, which
is said to be filed by the father of the applicant
before Police Station or before any court of law.

14. Now this Court comes to the
submission made by the learned counsel for the
applicant that there is a delay in lodging of the
first information report implicating the applicant
for which there is no plausible explanation.

15. It is no doubt true that for the
alleged incident dated 8th July, 2021 at
about 06:00 p.m. (evening), the first
information report has been lodged against
the applicant on 9th July, 2021 i.e. after 19
hours and 14 minutes from the time of
alleged incident. In the opinion of the
Court, such delay is not relevant in a case
where defamation of a victim who is
alleged to be 13 years old is involved. In
our country, society has a very big place,
where a man or a woman or a family gives
importance
to
the
honour
of
himself/herself/itself. Whenever there is
some wrong with a woman or girl or
female child, like rape or molestation, most
of the master of the family hesitate to lodge
report against the accused because of
defamation in the society and that is why
such delay occurs in lodgment of reports.

16. It is case of such heinous crime
where the social ramification of such
crimes are very dishonourable to the
victim, who suffers social stigma. The
offences of this nature which involves
social defamation, there is always a general
tendency to suppress such events at the
initial stage in order to avoid the victim
being stigmatized. The offence committed
by the applicant is egregious in nature and
it speaks about depravity of the applicant's
character, who had no moral qualms in
violating modesty and honour of a victim.

17. Now this Court comes on the
submission made by the learned A.G.A. for
the State that all the submissions made
relate to the disputed questions of fact,
which cannot be adjudicated upon by this
Court under Section 482 Cr.P.C.

18. At the pre-trial stage only prima
facie case is to be seen in the light of the
law laid down by Supreme Court in cases
of R.P. Kapur Vs. State of Punjab, A.I.R.
1960 S.C. 866, State of Haryana Vs.
Bhajan Lal, 1992 SCC (Cr.) 426, State of
4 All. Rajesh Kumar Giri Vs. State of U.P. & Ors.
365
Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192
and lastly Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Saraful Haq and another
(Para-10) 2005 SCC (Cr.) 283.

19. The Apex Court in the case of
Mohd. Allauddin Khan Vs. The State of
Bihar & Others reported in 2019 0
Supreme (SC) 454, has held that the High
Court had no jurisdiction to appreciate the
evidence of the proceedings under Section
482 Cr.P.C. because whether there are
contradictions or/and inconsistencies in the
statements of the witnesses is an essential
issue relating to appreciation of evidence
and the same can be gone into by the
Judicial Magistrate during trial when the
entire evidence is adduced by the parties.
However, in the present case the said state
is yet to come. The relevant paragraph nos.
15 to 17 are being quoted herein below:

"15. The High Court should have seen
that when a specific grievance of the
appellant in his complaint was that
respondent Nos. 2 and 3 have committed
the offences punishable under Sections 323,
379read with Section 34 IPC, then the
question to be examined is as to whether
there are allegations of commission of these
two offences in the complaint or not. In
other words, in order to see whether any
prima facie case against the accused for
taking its cognizable is made out or not, the
Court is only required to see the allegations
made in the complaint. In the absence of
any finding recorded by the High Court on
this material question, the impugned order
is legally unsustainable.

16. The second error is that the High
Court in para 6 held that there are
contradictions in the statements of the
witnesses on the point of occurrence.

17. In our view, the High Court had
no jurisdiction to appreciate the evidence
of the proceedings under Section 482 of
the Code Of Criminal Procedure, 1973
(for short "Cr.P.C.") because whether
there
are
contradictions
or/and
inconsistencies in the statements of the
witnesses is essentially an issue relating to
appreciation of evidence and the same can
be gone into by the Judicial Magistrate
during trial when the entire evidence is
adduced by the parties. That stage is yet to
come in this case."

(Emphasis added)

20. The Apex Court in its another
judgment in the case of Nallapareddy
Sridhar Reddy Vs. The State of Andhra
Pradesh & Ors. reported in 2020 0
Supreme (SC) 45, dealing with a case
under Sections 406 and 420 I.P.C. has
observed that the Court does not have to
delve deep into probative value of evidence
regarding the charge. It has only to see if a
prima facie case has been made out.
Veracity of deposition/material is a matter
of trial and not required to be examined
while framing charge. The Apex Court
further observed that the veracity of the
depositions made by the witnesses is a
question of trial and need not be
determined at the time of framing of
charge. Appreciation of evidence on merit
is to be done by the court only after the
charges have been framed and the trial has
commenced. However, for the purpose of
framing of charge the court needs to prima
facie determine that there exists sufficient
material for the commencement of trial.
The Apex Court in paragraph nos. 21, 22
and 24 has observed as follows:

"21 The appellant has relied upon a
two-judge Bench decision of this Court in
Onkar Nath Mishra v The State, (2008) 2
SCC 561 to substantiate the point that the
ingredients of Sections 406 and 420 of the
366 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC have not been established. This Court
while dealing with the nature of evaluation
by a court at the stage of framing of
charge, held thus:

"11. It is trite that at the stage of
framing of charge the court is required to
evaluate the material and documents on
record with a view to finding out if the
facts emerging therefrom, taken at their
face value, disclosed the existence of all
the ingredients constituting the alleged
offence. At that stage, the court is not
expected to go deep into the probative
value of the material on record. What needs
to be considered is whether there is a
ground for presuming that the offence has
been committed and not a ground for
convicting the accused has been made out.
At that stage, even strong suspicion
founded on material which leads the court
to form a presumptive opinion as to the
existence
of
the
factual
ingredients
constituting the offence alleged would
justify the framing of charge against the
accused in respect of the commission of
that offence."

(Emphasis supplied)

22 In the present case, the High Court
while directing the framing the additional
charges has evaluated the material and
evidence
brought
on
record
after
investigation and held:

"LW1 is the father of the de facto
complainant, who states that his son in law
i.e., the first accused promised that he
would look after his daughter at United
Kingdom (UK) and promised to provide
Doctor job at UK and claimed Rs.5 lakhs
for the said purpose and received the same
and he took his daughter to the UK. He
states that his son-in-law made him believe
and received Rs.5 lakhs in the presence of
elders. He states that he could not mention
about the cheating done by his son-in- law,
when he was examined earlier. LW13, who
is an independent witness, also supports the
version of LW1 and states that Rs.5 lakhs
were received by A1 with a promise that he
would
secure
doctor
job
to
the
complainant's daughter. He states that A1
cheated LW1, stating that he would provide
job and received Rs.5 lakhs. LW14, also is
an independent witness and he supported
the version of LW13. He further states that
A1 left his wife and child in India and went
away after receiving Rs.5 lakhs.

Hence, from the above facts, stated by
LWs. 13 and 14, prima facie, the version of
LW1 that he gave Rs.5 lakhs to A1 on a
promise that he would provide a job to his
daughter and that A1 did not provide any
job and cheated him, receives support from
LWs. 13 and 14. When the amount is
entrusted to A1, with a promise to provide a
job and when he fails to provide the job
and does not return the amount, it can be
made out that A1 did not have any intention
to provide job to his wife and that he
utilised the amount for a purpose other
than the purpose for which he collected the
amount from LW1, which would suffice to
attract the offences under Sections 406 and
420 IPC. Whether there is truth in the
improved version of LW.1 and what have
been the reasons for his lapse in not
stating the same in his earlier statement,
can be adjudicated at the time of trial.

It is also evidence from the record that
the additional charge sheet filed by the
investigating officer, missed the attention of
the lower court due to which the additional
charges could not be framed."

(Emphasis supplied)

24 The veracity of the depositions
made by the witnesses is a question of trial
and need not be determined at the time of
framing
of
charge. Appreciation
of
evidence on merit is to be done by the
court only after the charges have been
framed and the trial has commenced.
4 All. Rajesh Kumar Giri Vs. State of U.P. & Ors.
367
However, for the purpose of framing of
charge the court needs to prima facie
determine that there exists sufficient
material for the commencement of trial.
The High Court has relied upon the
materials on record and concluded that
the ingredients of the offences under
Sections 406 and 420 of the IPC are
attracted. The High Court has spelt out
the reasons that have necessitated the
addition of the charge and hence, the
impugned order does not warrant any
interference."

(Emphasis added)

21. Again in the case of Rajeev
Kaurav Vs. Balasahab & Others reported
in 2020 0 Supreme (SC) 143, the Apex
Court has held that it is no more res integra
that exercise of power under Section 482
CrPC to quash a criminal proceeding is
only when an allegation made in the FIR or
the charge sheet constitutes the ingredients
of
the
offence/offences
alleged.
Interference by the High Court under
Section 482 CrPC is to prevent the abuse of
process of any law or Court or otherwise to
secure the ends of justice.

22. In the latest judgment of the
Hon'ble Supreme Court in the case of State
of U.P. Vs. Akhil Sharda & Others
reported in 2022 SCC OnLine SC 820 has
held that while deciding the application
under Section 482 Cr.P.C., the High Court
has conducted mini trial which is not
permissible at that stage. The relevant
portion whereof reads as follows:

"28.
Having
gone
through
the
impugned judgment and order passed by
the High Court by which the High Court
has set aside the criminal proceedings in
exercise of powers under Section 482
Cr.P.C., it appears that the High Court has
virtually conducted a mini trial, which as
such is not permissible at this stage and
while deciding the application under
Section 482 Cr.P.C. As observed and held
by this Court in a catena of decisions no
mini trial can be conducted by the High
Court in exercise of powers under Section
482 Cr.P.C. jurisdiction and at the stage of
deciding the application under Section
482 Cr.P.C., the High Court cannot get
into appreciation of evidence of the
particular case being considered. (See
Pratima (supra); Thom (supra); Rajiv
(supra) and Niharika (supra).

29. Applying the law laid down by this
Court in the aforesaid decisions to the facts
of the case on hand and the manner in
which the High Court has allowed the
petition under Section 482 Cr.P.C., we are
of
the
opinion
that
the
impugned
judgment and order passed by the High
Court quashing the criminal proceedings
is unsustainable. The High Court has
exceeded in its jurisdiction in quashing
the criminal proceedings in exercise of
powers under Section 482 Cr.P.C.

30. It is also required to be noted that
even the High Court itself has opined that
the allegations are very serious and it
requires further investigation and that is
why the High Court has directed to conduct
the investigation by CBCID with respect to
the FIR No.227 of 2019. However, while
directing the CBCID to conduct further
investigation, the High Court has restricted
the scope of investigation. The High Court
has not appreciated and considered the fact
that both the FIRs namely FIR Nos.260 of
2018 and 227 of 2019 can be said to be
interconnected and the allegations of a
larger conspiracy are required to be
investigated. It is alleged that the overall
allegations are disappearance of the trucks
transporting the beer/contraband goods
which are subject to the rules and
368 INDIAN LAW REPORTS ALLAHABAD SERIES
regulations of the Excise Department and
Excise Law.

31 The High Court has quashed the
criminal proceedings by observing that
there was no loss to the Excise Department.
However, the High Court has not at all
appreciated the allegations of the larger
conspiracy. The FIR need not be an
encyclopedia ( See Satpal Vs. Haryana,
(2018) 6 SCC 110 Para 7).

32 Even otherwise, it is required to be
noted that the allegation of missing of two
trucks
was
the
beginning
of
the
investigation
and
when
during
the
investigation it was alleged that earlier
also a number of trucks were missing
transporting contraband goods, the FIR
should not have been restricted to missing
of the two trucks only and return of on the
goods thereafter. The High Court has not
at all appreciated and/or considered the
allegation of the larger conspiracy and
that both the FIRs/criminal cases are
interconnected and part of the main
conspiracy which is very serious if found
to be true. We however refrain from
making any further observations as at this
stage of proceedings as we are at the stage
of deciding the application under Section
482 Cr.P.C. only and as the trial of both
the cases have yet to take place. Therefore,
we refrain from making any further
observations which may affect the case of
the either of the parties. Suffice it to say
and mention that in the facts and
circumstances of the case the High Court
has committed a grave/serious error in
quashing and setting aside the criminal
proceedings arising out of Criminal Case
No.5694 of 2019 and Case Crime No.260
of 2018 PS lodged under Section 406,
registered at PS - Husainganj, District -
Lucknow.

(Emphasis supplied)

23. It is clear from the law laid down
by the Apex Court that if a prima facie case
is made out disclosing the ingredients of
the offence alleged against the accused, the
Court cannot quash a criminal proceeding.

24. From the discussions and
deliberations held above, this Court is of
the view that the submissions made by the
applicant's
learned
counsel
call
for
adjudication on pure questions of fact
which may adequately be adjudicated upon
only by the trial court and while doing so
even the submissions made on points of
law can also be more appropriately gone
into by the trial court in this case. This
Court does not deem it proper, and
therefore cannot be persuaded to have a
pre-trial before the actual trial begins. A
threadbare discussion of various facts and
circumstances, as they emerge from the
allegations made against the accused, is
being purposely avoided by the Court for
the reason, lest the same might cause any
prejudice to either side during trial. But it
shall suffice to observe that the perusal of
the F.I.R. and the material collected by the
Investigating Officer on the basis of which
the charge sheet has been submitted makes
out a prima facie case against the accused
at this stage and there appear to be
sufficient ground for proceeding against the
accused. I do not find any justification to
quash the charge sheet or the proceedings
against the applicants arising out of them as
the case does not fall in any of the
categories recognized by the Apex Court
which may justify their quashing.

25. The prayer for quashing the
impugned charge-sheet as well as the entire
proceedings of the aforesaid State case are
refused as I do not see any abuse of the
court's process at this pre-trial stage.
4 All. Gopal Shriwas & Ors. Vs. State of U.P. & Anr.
369

26. This application under Section
482 Cr.P.C. devoid of merits and is
accordingly rejected.
----------
(2023) 4 ILRA 369
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 13132 of 2022

Gopal Shriwas & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Umesh Kumar

Counsel for the Opp. Parties:
G.A., Sri Mahabir Yadav

A. Criminal Law -Indian Penal Code, 1860Sections 498-A, 323, 504 & 506 & 3⁄4
Dowry Prohibition, 1961 Act-Quashing of
entire
criminal
proceeding-mediation
failed-victim was physically and mentally
tortured on the pretext of payment of
additional dowry-her mother-in law and
sister in law snatched her jewellery and
her husband and father-in law left her at
her parental house until the said demand
was fulfilled- victim has specifically made
allegations against the applicants-two
witnesses corroborated the allegations
and evidence of the victim-plea of alibi of
father-in law that he was on duty is
immaterial as the complaint is not filed on
the basis of single incident occurred on
particular date-she was physically and
mentally tortured continuously since longHence,it cannot be said that mere general
allegations have been leveled against the
applicants-No
ground
to
quash
the
proceedings.(Para 1 to 13)

The application is dismissed. (E-6)
List of Cases cited:
Kahkashan Kausar @ Sonam & ors. Vs St. of
Bih. & ors. (2022) 0 Supreme SC 117
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Umesh Kumar, learned
counsel for the applicants, Sri Pankaj
Kumar Tripathi, learned AGA for the State
and perused the record.

2. This application has been moved to
quash the entire criminal proceedings of
Complaint Case No.476 of 2020 (Smt.
Jyoti Vs. Gopal Shriwas and others), under
Sections 498-A, 323, 504, 506 IPC and
Section 3/4 DP Act to the extent of
applicant no.1 and under Sections 498-A,
323 IPC and Section 3/4 DP Act to the
extent of applicant nos.2 to 4, Police
Station Charkhari, District Mahoba pending
before
the
Civil
Judge
(JD)/Judicial
Magistrate, Charkhari, Mahoba and also the
order dated 06.03.2021 passed by the
Sessions Judge, Mahoba in Criminal
Revision No.48 of 2020 (Smt. Jyoti Vs.
Ramsevak
and
others)
alongwith
summoning order dated 11.03.2022 passed
by the Civil Judge (JD)/Judicial Magistrate,
Charkhari, Mahoba.

3. In brief, facts of the case are that
applicant no.1 was married with opposite
party no.2 with full love and affection and
out of the wedlock a son Naman was born.
After one year from the marriage opposite
party no.2 demanded to live separately
from his family at her parental house which
was denied by applicant no.1 thereafter
opposite party no.2 left the marital house
on 04.04.2020 with her all belongings
purchased
by
applicant
no.1.
On
29.09.2020 opposite party no.2 filed a
complaint stating allegation of demand of
dowry of Rs.1,00,000/- and one motorcycle
and deposed falsely under Section 200