# Rama Shankar Mishra v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-10
- **Case number:** Application U/S 482 No.479 of 2021
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shankar-mishra-v-state-of-u-p-ors-48133
- **Pages:** 6

## Headnote

(A) Criminal Law-FIR-Applicant was in-charge
of Paddy Purchase Centre-duty to not purchase
more than 100 quintals paddy-Petitioner violated
mandate
of
purchase
policy-amounts
to
dereliction of duty-departmental/administrative
action can be initiated-no criminal offence u/s
405 IPC-proceedings quashed.

Application allowed. (E-9)

List of Cases cited:-

## Text

2 All. Rama Shankar Mishra Vs. State of U.P. & Ors.
515
asking of police but only after exercise of
judicial discretion based on material placed
before him particularly since provisions of
Section 82 Cr.P.C. are stringent in nature
and may entail loss of liberty and property.

14. In the present case, merely a bland
advertment to the case diary would not be
enough , the court has a bounden duty to
indicate the factors for which it has reason to
believe that the person concerned has
absconded or is not cooperating for the
purposes of service of warrant. Such a
procedure is compulsorily required to be
undertaken by the court concerned in view of
the provisions of Section 82 Cr.P.C.

15. Learned counsel for petitioner has
also referred to judgment of this Court in the
case of Kunwar Mahendra Pratap Singh
(supra) with the submission that prior to
issuance of any order under Section 82
Cr.P.C., it is compulsory that the magistrate
should consider the application of the
investigating
officer
which
should
be
supported by affidavit stating the reasons why
non bailable warrant and proclamation under
Section 82 Cr.P.C. is required since the issue
relates to personal liberty of a person
guaranteed
under
Article
21
of
the
Constitution of India.

16. Upon perusal of the aforesaid
judgment, juxtaposed with the provisions of
Section 82 Cr.P.C., it is the considered opinion
of this Court that submission of an affidavit by
the investigating officer at the time of making
of application for issuance of process under
Section 82 Cr.P.C. can not be a mandatory
provision. There is no such provision under
Section 82 Cr.P.C. requiring the investigating
officer to submit an affidavit along with the
application. Such a provision may be required
when orders are being passed simultaneously
under Sections 82 and 83 Cr.P.C., but can not
be considered to be mandatory at the time of
consideration of an application filed only
under section 82 Cr.P.C. It is trite that casus
omissus can not be supplied by the court
particularly when there is no confusion with
regard to the provisions of statute. As such and
also upon reading of the judgment of this
Court in the case of Kunwar Mahendra Pratap
Singh (supra), it is evident that the requirement
of affidavit to be filed by the investigating
officer while seeking an application for
issuance of proceedings under Section 82
Cr.P.C. is merely directory and not mandatory
and may be insisted upon the court concerned
in specific cases for reasons to be recorded.

17. Considering the aforesaid factors, it
is evident that the impugned orders not being
in consonance with the provisions of Section
82 Cr.P.C. are therefore unsustainable.
Consequently the impugned orders dated 31st
August, 2021 and 15th September, 2021
passed passed by Chief Judicial Magistrate,
Pratapgarh with regard to case crime No. 407
of 2020 under Sections 147, 148, 149, 307 and
302 IPC in Police Station Kotwali Nagar,
District Pratapgarh quashed and resultantly the
petition is a allowed. Liberty however is
granted to the court concerned for passing
fresh orders in case it is necessary to do so but
only in accordance with provisions of Section
82 Cr.P.C. as indicated herein above.
----------
(2022)02ILR A515
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.02.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No.479 of 2021

Rama Shankar Mishra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties
516 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Piyush Kumar

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law-FIR-Applicant was in-charge
of Paddy Purchase Centre-duty to not purchase
more than 100 quintals paddy-Petitioner violated
mandate
of
purchase
policy-amounts
to
dereliction of duty-departmental/administrative
action can be initiated-no criminal offence u/s
405 IPC-proceedings quashed.

Application allowed. (E-9)

List of Cases cited:-

1. Shafiya Khan alias Shakuntala Prajapati Vs St.
of U.P. & anr. passed in Criminal Appeal No(s).
200 of 2022 on 10.02.2022

2. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors. AIR 2021 SC 1918
(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

Heard
learned
counsel
for
petitioner and learned A.G.A. for the State
and perused the material available on
record.

2. By means of this petition under
Section 482 Cr.P.C. the petitioner has
prayed for a writ of certiorari quashing the
summoning order dated 10.11.2020 passed
by learned Judicial Magistrate, Kheri in
Case No. 1998 of 2020 arising out of Case
Crime No. 63 of 2020, under Section 406
IPC, Police Station Phoolbehad, District
Kheri as well as charge sheet no. 182 of
2020 dated 07.06.2020 submitted by the
police in the aforesaid case.

3. Learned counsel for petitioner has
submitted that a false and frivolous FIR
under Section 406 IPC was registered by
the
Assistant
Development
Officer
(Cooperative) Block Phoolbehad, Kheri on
22.02.2020 with the allegation that the
petitioner
being
In-charge
of
Paddy
Purchase Centre, FSS Servayant Maineha
and the petitioner purchased more than 100
quintal paddy from farmers in violation of
purchase policy of paddy in purchase year
2019-20. After loding of the FIR, the
Investigating Officer after completing the
formalities of investigation filed charge
sheet against the petitioner under Section
406 IPC.

4. Further submission is that no
disclosed offence under Section 406 IPC is
made out against the petitioner as the
petitioner never entrusted in any manner
any property nor he misappropriated any
property nor converted to his own use. It is
further submitted that if the prosecution
story is accepted in toto then only the
allegation against the petitioner is for
violating the government purchase policy.
The petitioner in violation of purchase
policy purchased more than 100 quintals
paddy. Further submission is that in this
case five farmers sold more than 100
quintals paddy. During investigation, this
fact is clearly established that the purchase
price is totally paid to the farmers.

5. Even if the irregularity has been
committed by the petitioner then in such
circumstances, no criminal offence is made
out against the petitioner. If the petitioner
purchased paddy in violation of purchase
policy,
then
only
administrative
or
departmental action could be initiated
against him. Thus the charge sheet as well
as entire proceedings initiated against the
petitioner is liable to be set aside.

6. Learned A.G.A. for the State has
submitted that after investigation, charge
2 All. Rama Shankar Mishra Vs. State of U.P. & Ors.
517
sheet has been submitted against the
petitioner and consequently cognizance
order has been passed as such, prima facie
offence is made out against the petitioner.

7. This Court perused the entire
record. Perusal of FIR shows that the
petitioner was the In-charge of Paddy
Purchase Centre. As per purchase policy, it
was the duty of the petitioner not to
purchase more than 100 quintal. As per
allegation made in the FIR it transpires that
the petitioner purchased more than 100
quintals paddy. The petitioner violated the
clear mandate of purchase policy of the
government. Therefore, the petitioner has
committed irregularity for purchase of
paddy crops from agriculturists. Thus it
amounts to dereliction of duty on the part
of
the
petitioner.
In
this
regard,
departmental/ administrative action can be
initiated against the petitioner.

8. The criminal breach of trust has
been defined under Section 405 IPC, which
reads as under:-

405.Criminal breach of trust.-
Whoever, being in any manner entrusted
with property, or with any dominion over
property, dishonestly misappropriates or
converts to his own use that property, or
dishonestly uses or disposes of that
property in violation of any direction of
law prescribing the mode in which such
trust is to be discharged, or of any legal
contract, express or implied, which he has
made touching the discharge of such
trust, or wilfully suffers any other person
so to do, commits "criminal breach of
trust".

A careful reading of Section 405
shows that the ingredients of a criminal
breach of trust are as follows:-

i) A person should have been
entrusted with property, or entrusted with
dominion over property;

ii) That person should dishonestly
misappropriate or convert to their own use
that property, or dishonestly use or dispose
of that property or willfully suffer any other
person t do so; and

iii) That such misappropriation,
conversion, use or disposal should be in
violation
of
any
direction
of
law
prescribing the mode in which such trust is
to be discharged, or of any legal contract
which the person has made, touching the
discharge of such.

Entrustment
is
an
essential
ingredient of the offence. A person who
dishonestly
misappropriates
property
entrusted to them contrary to the terms of
an obligation imposed is liable for a
criminal breach of trust and is punished
under Section 406 of the Penal Code-

Section 406. Punishment for
criminal breach of trust.-

Whoever
commits
criminal
breach of trust shall be punished with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both."

9. Perusal of the definition under
Section 405 IPC shows that entrustment of
the property as well as if the property is
converted to his own use then the offence
under Section 406 IPC is made out.

10. This Court in exercise of its
jurisdiction under Section 482 Cr.P.C. is to
examine whether the averments in the
complaint
constitute
the
ingredients
518 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary for an offence alleged under the
Penal Code. If the averments taken on their
face do not constitute the ingredients
necessary for the offence, the criminal
proceedings may be quashed under Section
482. A criminal proceeding can be quashed
where
the
allegations
made
in
the
complaint do not disclose the commission
of an offence under the penal Code. The
complaint must be examined as a whole,
without evaluating the merit of the
allegations. Though the law does not
require that the complaint reproduce the
legal ingredients of the offence verbatim,
the complaint must contain the basic facts
necessary for making out an offence under
the Penal Code.

11. Inherent power u/s 482 Cr.P.C.
include powers to quash FIR, investigation
or any criminal proceedings pending before
the High Court or any Courts subordinate
to it and are of wide magnitude and
ramification. Such powers can be exercised
to secure ends of justice, prevent abuse of
the process of any court and to make such
orders as may be necessary to give effet to
any order under this Code, depending upon
the facts of a given case. Court can always
take note of any miscarriage of justice and
prevent the same by exercising its powers
u/s 482 of Cr.P.C. These powers are neither
limited
nor
curtailed
by
any
other
provisions of the Code. However, such
inherent powers are to be exercised
sparingly and with caution.

12. It is well settled that the inherent
powers under section 482 Cr.P.C. can be
exercised only when no other remedy is
available to the litigant and Not where a
specific remedy is provided by the statute. If
an effective alternative remedy is available,
the High Court will not exercise its powers
under this section, especially when the
applicant may not have availed of that
remedy.

13. The case of the petitioner is
squarely covered by the judgment of Hon'ble
Apex Court in the case of Shafiya Khan alias
Shakuntala Prajapati Vs. State of U.P. and
Anr. passed in Criminal Appeal No(s). 200
of 2022 on 10.02.2022, wherein Hon'ble
Apex Court in paragraph nos. 15 to 17 has
held as under:-

15. The exposition of law on the
subject relating to the exercise of the
extra-ordinary power under Article 226 of
the Constitution or the inherent power
under Section 482 Cr.PC are well settled
and to the possible extent, this Court has
defined
sufficiently
channelized
guidelines, to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised. This Court has held
in para 102 in State of Haryana v. Bhajan
Lal (supra) as under:

"102. In the backdrop of the
interpretation
of
the
various
relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating to
the exercise of the extraordinary power under
Article 226 or the inherent powers under
Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
2 All. Rama Shankar Mishra Vs. State of U.P. & Ors.
519

(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
noncognizable
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."

16. The principles laid down by
this Court have consistently been followed,
as well as in the recent judgment of three
Judge judgment of this Court in Neeharika
Infrastructure Pvt. Ltd. v. State of
Maharashtra and others AIR 2021 SC
1918.

17. It is no doubt true that the
power of quashing of criminal proceedings
should be exercised very sparingly and with
circumspection and that too in rarest of the
rare cases and it was not justified for the
Court in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint
and that the inherent powers do not confer
any arbitrary jurisdiction on the Court to act
according to its whims and fancies."

14. In the given circumstances and
going through the complaint on the basis of
which FIR was registered and other material
placed on record, we are of the considered
view that no offence of any kind as has been
alleged in the FIR, has been made out against
the appellant and if we allow the criminal
proceedings to continue, it will be nothing but
a clear abuse of the process of law and will be
a mental trauma to the appellant.

15. Consequently, petition under
Section 482 Cr.P.C. is allowed. The
criminal proceedings initiated against the
520 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner in reference to FIR No. 63 of
2020, under Section 406 IPC, Polcie
Station Phoolbehad, District Kheri are
hereby quashed and set aside.
----------
(2022)02ILR A520
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Application U/S 482 No. 633 of 2020

Suneel Kumar Yadav ...Applicants
Versus
C.B.I./A.C.B./Lucknow ...Opposite Party

Counsel for the Applicants:
Kuldeep Srivastava, Smt. Padma Verma

Counsel for the Opposite Party:
A.S.G., Anurag Kumar Singh

(A)
Criminal
Law-Amendment-
Prevention of Corruption Act-section 13
(1) (d) substituted by section 7 of 1988
Act-FIR, Chargesheet and charges were
framed much prior to amendment in Actnot
provided
whether
amendment
retrospective-if retrospective effect not
provided-provision of amendment will be
prospective-Petition dismissed. (E-9)

List of Cases cited:-

1. T. Barai Vs Henry Ah Hoe & anr., reported in
1983 CRI.L.J. 164 SC

2. St. of Telang. Vs Managipet alias Mangipet
Sarveshwar Reddy reported in (2019) 19 SCC
87

3. St. of Raj. Vs Tejmal Choudhary passed in
Criminal Appeal No. 1647 of 2021

4. Akram Ansari Vs Chief Election Officer [(2008)
2 SCC 95];
5. K.R. Ramesh Vs C.B.I. & anr. [(2020) SCC
Online Kerala 2529].

6. G J Raja Vs Tejraj Surana [(2019) 19 SCC
469]

7. Hitendra Vishnu Thakur Vs St. of Mah. & ors.
[(1994) 4 SCC 602]
(Delivered by Hon'ble Manish Mathur, J.)

1. Instant petition under Section 482
of the Cr.P.C. has been preferred by the
petitioner for quashing of the impugned
order dated 20.01.2020 passed by the
learned court of Special Judge, Anti
Corruption, West, UP., Lucknow initiated
in case no. 2 of 2015 arising out of crime
no. RC006/2015/A/0002 under Sections 7
& 13(2) r/w 13 (1)(d) of Prevention of
Corruption Act, 1988 (hereinafter referred
to as 'the Act 1988').

2. Learned counsel for the petitioner
has submitted that the impugned order was
passed without considering the submissions
raised on behalf of the petitioner. It is
further submitted that the Prevention of
Corruption Act has lastly been amended
w.e.f. 26.07.2018 and Section 13(1)(d) of
the Act 1988 has been substituted by
Section 7 of the Act 1988. In Section
13(1)(d), the punishment provided was not
less than four years but which may extend
to ten years and shall also be liable to fine,
whereas by making an amendment, the
punishment which has been provided under
Section 7 of the Act 1988 is less than three
years but which may extend to seven years
and shall also be liable to fine. After the
amendment in the Act, the applicant has
moved an application for alteration of
charge in the light of Amendment Act,
1988 since Section 13(1)(d) of the Act
1988 has been omitted and prayed for
dropping of the charge under Section