# Ram Chandra Balani & another v. State of U.P. and another

- **Citation:** (2009) 2 ILRA 662
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-17
- **Case number:** Criminal Misc. Application No. 1737 of 2005
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-chandra-balani-another-v-state-of-u-p-and-another-41410
- **Pages:** 7

## Headnote

Code of Criminal Procedure-Section-482Quashing
of
Chargesheet
including
entire preceding-offence under Section
380 I.P.C.-on ground that sole informant
died- no useful purpose will be served in
Continuing proceeding- other witness
are there death of informant cannot be
ground for quashing the preceding-other
argument
of
absurd
and
inherently
improbable is concern-the Magistrate
after
considering
entire
material
collected during investigations found
sufficient ground to proceed can not be
said to be absurd-case law relied by
applicant also support the presentationno legal bar on taking opinion by
investigation
agency-application
rejected.

Held: Para 10

The learned counsel for the applicants
submitted that there was no reason for
the applicants to commit theft as stated
in the FIR specially when they are
respectable
persons
and
have
no
criminal history. The allegations are
highly improbable and absurd. In view of
illustration no. 5 of Bhajan Lal's case
(supra), the proceedings of the criminal
case pending against the applicants are
liable to be quashed. In my opinion, it is
true that if the allegations made in the
FIR or the 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
,
the
proceedings
can
be
quashed under section 482 Cr.P.C. But
these principles are of no help to the
applicants in view of the fact that the
satisfaction of the Magistrate, which is
based on perusal of the entire materials
collected during in investigation, can not
be said to be absurd or inherently
improbable.
2 All] Ram Chanda Balani and another V. State of U.P. and another

663
Case law discussed:
1992 SCC (Crl.) 426, (2006) 6 SCC-736,
(2006)7 SCC 188, (2005) 13 SCC 540, 2000
(40) ACC 1021

## Text

662 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

therefore, is not acceptable. Furthermore
since the amount of salary due to the
petitioner has been admitted by the
respondent, it would not be in the interest
of justice to refer the dispute to arbitration
under Section 70 of U.P. Cooperative
Societies Act, 1965 as there is no dispute
regarding payment of dues.

13. For the reasons stated above and
in the aforesaid circumstances, writ
petition is allowed. The respondents are
directed to pay total admitted amount of
salary along with 5% simple interest to
the petitioner within three months from
the date of production of certified copy of
this order. Since the Unit is said to be
suffering loss, the respondent in the
alternative may pay one third of the
amount due with interest aforesaid each
month
for
three
months
in
equal
installments in addition to his regular
wages from the date of production of
certified copy of this order along with 5%
simple interest.

No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.07.2009

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Misc. Application No. 1737 of
2005

Ram Chandra Balani & another...Applicants

Versus
State of U.P. and another ...Respondents

Counsel for the Applicants:
Sri P.N. Tripathi
Sri Rakesh Bhatt

Counsel for the Respondent:
Sri Rajesh Kumar Dubey

Code of Criminal Procedure-Section-482Quashing
of
Chargesheet
including
entire preceding-offence under Section
380 I.P.C.-on ground that sole informant
died- no useful purpose will be served in
Continuing proceeding- other witness
are there death of informant cannot be
ground for quashing the preceding-other
argument
of
absurd
and
inherently
improbable is concern-the Magistrate
after
considering
entire
material
collected during investigations found
sufficient ground to proceed can not be
said to be absurd-case law relied by
applicant also support the presentationno legal bar on taking opinion by
investigation
agency-application
rejected.

Held: Para 10

The learned counsel for the applicants
submitted that there was no reason for
the applicants to commit theft as stated
in the FIR specially when they are
respectable
persons
and
have
no
criminal history. The allegations are
highly improbable and absurd. In view of
illustration no. 5 of Bhajan Lal's case
(supra), the proceedings of the criminal
case pending against the applicants are
liable to be quashed. In my opinion, it is
true that if the allegations made in the
FIR or the 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
,
the
proceedings
can
be
quashed under section 482 Cr.P.C. But
these principles are of no help to the
applicants in view of the fact that the
satisfaction of the Magistrate, which is
based on perusal of the entire materials
collected during in investigation, can not
be said to be absurd or inherently
improbable.
2 All] Ram Chanda Balani and another V. State of U.P. and another

663
Case law discussed:
1992 SCC (Crl.) 426, (2006) 6 SCC-736,
(2006)7 SCC 188, (2005) 13 SCC 540, 2000
(40) ACC 1021

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. The applicants Ram Chndra
Balani and his son Shyam Balani have
filed his application under Section 482 Cr.
P.C. for quashing the proceedings of the
Criminal Case No. 399 of 2000 State Vs.
Ram Chanda Balani and another under
section 380 IPC pending in the court of Ist
Additional Chief Judicial Magistrate,
Mathura along with the impugned order
dated 6.11.2004 and charge sheets dated
25.4.2000 and 5.7.2000.

2. Neither the opposite party No. 1
nor the opposite party no. 2 (the
complainant) filed any counter affidavit.

3. I have heard the learned counsel
for the applicants, the learned AGA for
the State and also the learned counsel for
the opposite party no. 2 and perused the
record.

4. It is alleged that the marriage of
the applicant no. 2 Shyam Balani, son of
the applicant no. 1, was to take place on
5.5.1997. The applicants had gone to the
house of the opposite party no. 2 Gurudeo
Sharma on 1.4.1997 at about 10.00 AM to
invite him for the marriage. At that time
the opposite party no. 2 was not present
in his house but his servant Mohan Singh
Yadav(informant)
was
present,
who
entertained the applicant s in the house of
the opposite party no. 2 and went to the
market to bring refreshment etc. for them.
When the servant Mohan Singh Yadav
returned, he found that the applicants
were not in the house and had already
gone and the attachi kept in an almirah
was found in open condition and the cash
amount of Rs.12,000/- kept by the
opposite party no. 2 was missing from the
attachi. is alleged that the applicants have
committed theft on the cash amount of
Rs.12,000/- by entering into the house of
the opposite party no. 2. Accordingly the
servant of the opposite party no. 2 lodged
FIR at the concerned police station. The
police registered the case for investigation
and on completion of investigation
submitted a final report by holding that no
case was made against the applicants. The
final report was, then , refereed to the
Senior Prosecution Officer, Mathura for
opinion, who had kept the matter pending
with him for about three years and then
returned the case to the investigation
officer for filing charge sheet against the
applicants. Accordingly the investigation
officer submitted charge sheet against the
applicants in the court concerned and the
final
report
already
submitted
was
recalled.

5. The learned Additional Chief
Judicial Magistrate took cognizance of the
offence and issued processes to the
applicants. The applicants, after putting
appearance before the Additional Chief
Judicial Magistrate, contended that no
offence was made out against them and
prayed for their discharge. The learned
Magistrate considered the entire material
annexed with the charge sheet and arrived
at the conclusion that there was sufficient
evidence on record to frame a charge
under section 380 IPC against the
applicants.
Accordingly
the
learned
Magistrate passed the impugned order
dated
6.11.2004
and
rejected
the
applicants' prayer for discharge and
decided to frame a charge under section
380 IPC against them. The applicants
have challenged the order dated 6.11.2004
664 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

of Additional Chief Judicial Magistrate,
Mathura as well as charge sheets dated
25.4.2004 and 5.7.2000 in the instant
case.

6. The learned counsel for the
applicants submitted that the applicants
are respectable persons. The applicant no.
1 was the Vice President of the society
Uhulelal
Sindhu
Nagar
Welfare
Association where as the opposite party
no. 2 Gurudeo Sharma was the Chairman.
They were on friendly term but due to a
dispute concerning the society, the
opposite party no. 2 developed an enmity
with the applicants and got lodged the
FIR against them with the help of his own
servant. The learned counsel for the
applicants further submitted that the
informant Mohan Singh Yadav, who is
the sole witness, has died and no useful
purpose will be served to continue with
the trial after the death of the sole witness
Mohan Singh Yadav. It was further
submitted that the story of theft as
disclosed in the charge sheet is not only
absurd but is also inherently improbable.
The proceedings of the case, in view of
the principles of law laid down in the case
of State of Hariyana and others vs.
Bhajan Lal and others 1992 SCC (Crl.)
426 are liable to be quashed. In Bhjan
Lal's case (supra) the Supreme Court had
dealt with the scope of exercise of powers
under Section 482 Cr.P.C. And category
of cases where High Court may exercise
its power relating to the cognizable
offence to prevent abuse of the process of
the court or otherwise to secure the ends
of justice. The seven categories of
illustrations propounded by the Supreme
Court are as follows:

"(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 entirely
do not prime 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 F.I.R. Do not
disclose a cognizable offence, justifying
an investigation by police officer 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
proceeding 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 an/or
where the proceeding is maliciously
2 All] Ram Chanda Balani and another V. State of U.P. and another

665
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge."

7. The case of Bhajan Lal (supra)
has been followed with approval in the
cases of Indian Oil Corporation vs. NTPC
India Ltd. And others (2006) 6 SCC-736,
Central Bureau of Investigation vs. Ravi
Shankar Srivastava, IAS and another
(2006)7 SCC 188 and State of Orissa and
another vs. Saroj Kumar Sahoo (2005) 13
SCC 540 and in few other cases. It may
not be out of context to refer the
following observations made by the
Supreme
Court
in
Ravi
Shankar
Srivastava's case (supra):

"It would not be proper for the High
Court to analyse the case of the
complainant
in
the
light
of
all
probabilities
in
order
to
determine
whether
a
conviction
would
be
sustainable and on such premises arrive at
a conclusion that the proceeding are to be
quashed. It would be erroneous to assess
the material before it and conclude that
the complaint can not be proceeded with.
In a proceeding instituted on complaint,
exercise of the inherent powers to quash
the proceeding is called for only in a case
where the the complaint does not disclose
any offence or is frivolous, vexatious or
oppressive. If the allegations set out in the
complaint do not constitute the offence of
which cognizance has been taken by the
Magistrate, it is open to the High Court to
quash the same in exercise of the inherent
powers under section 482 of the Code. It
is not, however, necessary that there
should be meticulous analysis of the case
before the trial to find out whether the
case would end in conviction or acquittal.
The complaint has to be read as a whole.
If it appears that on consideration of the
allegations in the light of the statement
made on oath of the complainant that the
ingredients of the offence or offences are
disclosed and there is no material to show
that the complaint is mala fide, frivolous
or vexatious , in that event there would be
no justification for interference by the
High Court. When an information is
lodged at the police station and an
offence is registered, then the mala fides
of the informant would be of secondary
importance. It is the material collected
during the investigation and evidence led
in the court which decides the fate of the
accused person. The allegations of mala
fides against the informant are of no
consequence and cannot by themselves be
the basis for quashing the proceedings."

8. Section 482 Cr.P.C. has conferred
inherent powers on the High Court which
should be exercised sparingly, carefully
and with caution only when the exercise
is necessary, firstly, to give effect to an
order under the Code, secondly, to
prevent abuse of the process of the court
and thirdly, to otherwise secure the ends
of justice. It is to be exercised ex debito
justitiae to do real and substantial justice
for the administration of which alone the
courts exist. While exercising the powers
under section 482 Cr.P.C. The High Court
does not function as a court of appeal or
revision and as such it is not permissible
to make evaluation or appreciation of the
evidence
collected
during
the
investigation. The evidence and materials
collected during the investigation have to
be taken on their face value and if they
make out a case of commission of an
offence, the proceeding of the case can
not be quashed on the ground that the
evidence
is
not
creditworthy.
The
reliability evidence in a criminal case is a
666 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

matter to be considered at the stage of
trial and not under section 482 Cr.P.C. Or
at the stage of taking cognizance of the
offence or framing a charge. The police
report and the materials collected during
the investigation in support of the report
are the only materials for the purposes of
taking cognizance of an offence as well as
for framing a charge. Even the defence
version has no relevancy at this stage.
The inherent power should not be
exercised to stifle a legitimate prosecution
but that power is very wide and the very
plenitude of the power requires great
caution in its exercise. In a case instituted
on complaint the inherent power to quash
the proceeding has to be exercised only in
a case where the complaint does not
disclose any offence or is mala fide,
frivolous, vexatious or oppressive, but in
case instituted on a police report, the
allegations of mala fides against the
informant are of no consequence and can
not by themselves be the basis for
quashing the proceeding. In such case
only the materials collected during the
investigations and the evidence led in the
court are relevant.

9. In the instant case, the leaned
Additional Chief Judicial Magistrate has,
on perusal of the entire case diary, very
categorically come to the conclusion that
there was sufficient evidence to frame a
charge under section 380 IPC against the
applicants. The conclusion so drawn by
the learned Magistrate is based on the
materials
collected
during
the
investigation.
The
informant
Mohan
Singh Yadav has no doubt died and he
can not be examined during the trial but
this is itself no ground to quash the
proceedings when it is contended on
behalf of the opposite party no. 2 that
there are other witnesses too to support
the prosecution story during the trial.

10. The learned counsel for the
applicants submitted that there was no
reason for the applicants to commit theft
as stated in the FIR specially when they
are respectable persons and have no
criminal history. The allegations are
highly improbable and absurd. In view of
illustration no. 5 of Bhajan Lal's case
(supra), the proceedings of the criminal
case pending against the applicants are
liable to be quashed. In my opinion, it is
true that if the allegations made in the FIR
or the 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
, the proceedings can be quashed under
section 482 Cr.P.C. But these principles
are of no help to the applicants in view of
the fact that the satisfaction of the
Magistrate, which is based on perusal of
the entire materials collected during in
investigation, can not be said to be absurd
or inherently improbable.

11. The applicants are alleged to
have entered into the house of the
opposite party no.2 and taking advantage
of his absence and also the absence of the
informant Mohan Singh Yadav, they took
away cash amount of Rs. 12,000/- from
the attachi kept by the opposite party no.
2 in an almirah. These allegations duly
supported with the evidence collected
during the investigation are not in any
way inherently improbable or absurd and
make out a prima facie case against the
applicants under section 380 I.P.C.

12. The learned counsel for the
applicants further submitted that the
2 All] Ram Chanda Balani and another V. State of U.P. and another

667
investigation officer, on conclusion of the
investigation, prepared and submitted a
final report but the Senior Prosecuting
Officer acted illegally not only in
retaining the file for about three years but
also in directing the investigating officer
to file charge sheet against the applicants.
It was further submitted that the charge
sheet against the applicants was an
outcome of the opinion given by the
Senior Prosecuting Officer and as such
the proceedings of the criminal case are
liable to be quashed. In support of this
submission, the learned counsel for the
applicants placed reliance on R. Sarala
vs. T.S. Velu & others 2000 (40) ACC
1021. In that case the Apex Court has
held that the High Court's order directing
the investigating officer to take opinion of
Public Prosecutor for filling charge sheet
was not proper. The Apex Court has
further held that opinion of the Public
Prosecutor has no relevance and the
investigating officer was not required to
seek opinion in the matter. In my opinion,
the facts of the case of R. Sarala (supra)
were some how different. In that case a
young bride had committed suicide. An
inquiry under section 174(3) Cr.P.C. Was
held. The Sub Divisional Officer, who
conducted the inquiry, found that due to
mental
restlessness
the
bride
had
committed suicide and no one was
responsible and he accordingly inferred
that her death was not due to dowry
harassment.
However,
the
police
continued with the investigation and
submitted a challan against the husband of
bride and his mother under sections 304-B
and 498-A IPC. The bride's father was not
satisfied with the challan as the sister of
the husband to his daughter had been
exonerated and was not made as accused.
The deceased's father filed a petition
under section 482 Cr.P.C. The High
Court directed that the papers shall be
placed before the Public Prosecutor as it
is, without any further investigation, and
he shall render an impartial opinion in the
matter and thereafter an amended charge
sheet shall be filed in the concerned court.
In view of peculiar facts of that case the
Apex Court was of the view that High
Court was not justified in giving direction
to seek opinion of the Public Prosecutor.
It was further held that the investigating
officer, though, is subject to supervision
by his superiors in rank, is not to take
instructions regarding investigation of any
particular case even from the executive
Government of which he is a subordinate
officer. The opinion of the Public
Prosecutor in such circumstances was
held not relevant and the order of the
High Court directing the investigating
officer to seek opinion of the Public
Prosecutor, was set aside.

13. In R. Sarala's case (supra) the
Apex Court has further held in para 7 as
follows:

"The question here is not simply
whether an investigating officer, on his
own volition or on his own initiative, can
discuss with the Public Prosecutor or any
legal talent, for the purpose of forming his
opinion as to the report to be laid in the
court. Had that been the question
involved in this case it would be
unnecessary to vex our mind because it is
always open to any office, including any
investigating officer, to get the best legal
opinion on any legal aspect concerning
the preparation of any report. But the real
question is, should the High Court direct
the investigating officer to take opinion of
the Public Prosecutor for filling the
charge-sheet."
668 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

14. The investigating officer has
ample power under the Code of Criminal
Procedure to collect relevant material
during the investigation and to arrive on a
conclusion independent of any extraneous
reasons but he is not in any way precluded
in law to seek legal opinion which may
assist
him
in
forming
a
definite
conclusion.
This
power
of

the
investigating officer has been upheld in R.
Sarala's case (supra). It is equally well
settled that the investigating officer can
not be given any direction by the court to
seek legal opinion either of the Public
Prosecutor or any other legal expert for
filling the final report or the charge sheet.
In R. Sarala's case (supra) the legality of
the order of the High Court giving
direction to the investigating officer to
take opinion of the Public Prosecutor for
filling the charge sheet was in issue
before the Apex Court and that question
was considered and answered against the
verdict of the High Court and it was held
that there was no compulsion on the part
of the investigating officer to seek legal
opinion and the High Court had not power
to issue such direction. In my opinion, R.
Sarala's case (supra) instead of supporting
the case of the applicants, supports the
facts of the investigating officer in
seeking legal opinion on the final report.

15. The application under section
482 Cr.P.C. has no merit. It is accordingly
dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 53798 of 2006

Gopal Krishna Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Nar Singh Dixit
Sri Siddhartha Srivastava
Sri Himanshu Srivastava

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Saurabh Singh
Sri Neeraj Upadhyay
S.C.

Subordinate
Civil
Courts
Ministerial
Establishment Rules 1947-Rule-20 (3)-
Appointment of Sadar Munsrim-should
be done only by way of promotion
seniority cum suitability-strictly from
clerical staff-if suitable candidate if
clerical staff not available-promotion of
stenographer
can
be
consideredpromotion of stenographer without prior
approval of High Court ignoring senior
most ministerial staff-illegal.

Held: Para 14

The claim of respondent no. 3 could have
been considered by District Judge for
promotion to the post of Sadar Munsarim
only where it is found that no incumbent
in clerical staff is suitable for promotion.
Even at the time when the respondent
no.
3
was
made
Incharge
Sadar
Munsarim it does not appear from the
record that the claim of all the clerical
staff was considered at that time and
any recommendation was made finding
no clerical staff working in the next