# Ramesh Iyer v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 886
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-19
- **Case number:** Application U/S 482 No. 1872 of 2011
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-iyer-v-state-of-u-p-anr-51692
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 165(3), 200, 202, 202(1)
& 482 - Indian Penal Code, 1860 -
Sections 406, 409, 419, 420, 467 & 468 -
Negotiable
Instruments
Act,
1881
-
Section 138 - Application u/s 482 - assailing
the summoning order and the entire criminal
proceedings
-
the
petitioner,
serving
as
Managing Director of a financial company, had
no involvement in the routine operations of its
branch offices - A criminal case arose from a
2006 vehicle financing transaction concerning a
vehicle - financed through the company - which
was later surrendered following default in
payment - The vehicle was subsequently re-sold
to opposite party no. 2, who issued four postdated cheques, two of which were dishonoured
- Opposite party no. 2 fraudulently re-sold the
vehicle
using
forged
documents
and
impersonated company personnel - offence of
dishonour of cheques - Company initiated
proceedings under the N.I. Act, - a summoning
order issued to the opposite party no. 2 - In
retaliation, opposite party no. 2 filed a complaint
under
Section
156(3)
Cr.P.C.,
alleging
misappropriation
against
three
individuals,
including the petitioner - FIR was registered -
but during investigation, police exonerated all
accused - and filed charge-sheet against the
opposite party no. 2 under various sections of
the IPC - Despite this, opposite party no. 2
lodged another complaint with unfounded
allegations, implicating even the investigating
officer and the vehicle's purchaser - wherein
petitioner was named with vague and general
accusations - St.ment recorded u/s 200 Cr.P.C.
- impugned summoning order - the applicant
pleaded that summoning order was passed in
violation of settled legal principles - the court
observed that, the Magistrate failed to conduct
the mandatory inquiry under Section 202(1)
Cr.P.C., despite the petitioner residing outside
the jurisdiction and furthermore, fact that the
complaint pertained to the same transaction for
which a charge-sheet had already been filed
against the complainant - court held that, the
complaint was a retaliatory move, lacking
substance and driven by malafide intent, falling
squarely within the parameters laid out in
Bhajan Lal's case - Consequently, the complaint
case, the summoning order and the bailable
warrant were quashed - Application is allowed.
(Para - 28, 29, 30)

Application Allowed. (E-11)

List of referred Cases: -

## Text

886 INDIAN LAW REPORTS ALLAHABAD SERIES
माननीय
उच्चतम
न्यायालय
ने
यह
ससद्िािंत प्रततपाहदत ककया कक िारा 311
दिंड प्रकिया सिंहहता का अिंततनगहहत उद्देश्य
यह है कक ककसी िी पक्षकार द्िारा
मूलयिान साक्ष्य को असिलेख पर लाने में
हुई त्रुहट अर्थिा ककसी गिाह के साक्ष्य में
अस्पष्टता न होने के कारण से न्याय का
उद्देश्य विफल न हो जाए। तनणागयक बििंदु
यह है कक क्या ऐसा करना प्रकरण के
न्यायपूणग तनणगय के सलए अपररहायग है। इस
िारा में असिव्यजक्त कक "ककसी जााँच
विचारण या अन्य कायगिाही के ककसी प्रिम
में" िी अत्यिंत महत्िपूणग है, ककन्तु यह
ध्यान में रखना चाहहए की िारा 311 दिंड
प्रकिया सिंहहता द्िारा प्रदि वििेकािीन
शजक्तयों का प्रयोग न्यायपूणग ढिंग से ककया
जाना चाहहए। जैसा कक सदा ही कहा जाता
है कक शजक्तयािं जजतनी व्यापक हों, उनके
इस सिंििंि में वििेक का प्रयोग न्याय पूिगक
करने में साििानी की अतनिायगता उतनी
अधिक िढ़ जाती है।

19. जि उपरोक्त विधि व्यिस्र्थाओिं के
आलोक में प्रस्तुत प्रकरण के तथ्यों की
समीक्षा की जाय तो यह स्पष्ट होता है कक
असियोजन ने किी िी ककसी िी स्तर पर
यह नहीिं कहा कक घटना िसीउद्दीन की
दुकान के सामने अर्थिा उसकी उपजस्र्थतत
में घहटत हुई। पत्रािली िचाि की िहस के
स्तर पर पहुिंचने पर असियुक्त गण ने
िसीउद्दीन को इस आिार पर साक्षी के
रूप में तलि करने का प्रार्थगना-पत्र हदया कक
घटना उसकी दुकान के सामने घहटत हुई
र्थी और िह घटना का अहम गिाह है,
जिकक ऐसा कर्थन न तो प्रर्थम सूचना
ररपोटग में और न ही ककसी िी साक्षी के
ियान में है तर्था जजस साक्षी अनुज
द्वििेदी के ियान का आश्रय असियुक्तगण
ले रहे हैं उसने स्ियिं यह कहा कक घटना के
समय िह स्ियिं िी उपजस्र्थत नहीिं र्था और
उसने िी िसीउद्दीन की दुकान के सामने
अर्थिा िसीउद्दीन की उपजस्र्थतत में घटना
होने का कर्थन नहीिं ककया है। अतः प्रार्थगना-
पत्र में िसीउद्दीन को गिाह के रूप में
तलि ककये जाने का दशागया गया कारण
असत्य एििं तनरािार है।

20. उपरोक्त समीक्षा के आलोक में
विद्िान विचारण न्यायालय द्िारा िारा
311 दिं०प्र०सिं० का प्रार्थगना-पत्र तनरस्त ककये
जाने में कोई अिैिातनकता अर्थिा त्रुहट
काररत नहीिं की गयी है। िारा 482 दण्ड
प्रकिया सिंहहता के अन्तगगत प्रस्तुत प्रार्थगना-
पत्र िलहीन है और तद्नुसार तनरस्त ककया
जाता है।
----------
(2024) 3 ILRA 886
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.03.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 1872 of 2011

Ramesh Iyer ...Applicant
Versus
State of U.P. & Anr. ...Respondents
3 All. Ramesh Iyer Vs. State of U.P. & Anr.
887
Counsel for the Applicant:
B.K.
Singh,
Aishwarya
Pratap
Singh,
Sandeep Kumar (Trivedi)

Counsel for the Respondents:
G.A., Apoorv

Criminal Law - Criminal Procedure Code,
1973 - Sections 165(3), 200, 202, 202(1)
& 482 - Indian Penal Code, 1860 -
Sections 406, 409, 419, 420, 467 & 468 -
Negotiable
Instruments
Act,
1881
-
Section 138 - Application u/s 482 - assailing
the summoning order and the entire criminal
proceedings
-
the
petitioner,
serving
as
Managing Director of a financial company, had
no involvement in the routine operations of its
branch offices - A criminal case arose from a
2006 vehicle financing transaction concerning a
vehicle - financed through the company - which
was later surrendered following default in
payment - The vehicle was subsequently re-sold
to opposite party no. 2, who issued four postdated cheques, two of which were dishonoured
- Opposite party no. 2 fraudulently re-sold the
vehicle
using
forged
documents
and
impersonated company personnel - offence of
dishonour of cheques - Company initiated
proceedings under the N.I. Act, - a summoning
order issued to the opposite party no. 2 - In
retaliation, opposite party no. 2 filed a complaint
under
Section
156(3)
Cr.P.C.,
alleging
misappropriation
against
three
individuals,
including the petitioner - FIR was registered -
but during investigation, police exonerated all
accused - and filed charge-sheet against the
opposite party no. 2 under various sections of
the IPC - Despite this, opposite party no. 2
lodged another complaint with unfounded
allegations, implicating even the investigating
officer and the vehicle's purchaser - wherein
petitioner was named with vague and general
accusations - St.ment recorded u/s 200 Cr.P.C.
- impugned summoning order - the applicant
pleaded that summoning order was passed in
violation of settled legal principles - the court
observed that, the Magistrate failed to conduct
the mandatory inquiry under Section 202(1)
Cr.P.C., despite the petitioner residing outside
the jurisdiction and furthermore, fact that the
complaint pertained to the same transaction for
which a charge-sheet had already been filed
against the complainant - court held that, the
complaint was a retaliatory move, lacking
substance and driven by malafide intent, falling
squarely within the parameters laid out in
Bhajan Lal's case - Consequently, the complaint
case, the summoning order and the bailable
warrant were quashed - Application is allowed.
(Para - 28, 29, 30)

Application Allowed. (E-11)

List of referred Cases: -

1.
Pepsi
Foods
Ltd.
Vs
Special
Judicial
Magistrate (1998) 5 SCC 749;

2. Ravindranatha Bajpe Vs Mangalore 6. Special
Economic Zone Ltd., (2022) 15 SCC 430;

3. St. of Haryana Vs Bhajan Lal, 1992 Supp (1)
SCC 335: 1992 SCC (Cri) 426,

4. Abhijit Pawar Vs Hemant Madhukar Nimbalkar
& anr."(2017) 3 SCC 528.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Naresh Kaushik, learned
Senior Advocate assisted by Sri Aishwarya
Pratap Singh, learned counsel for the
petitioner, Sri Nirmal Kumar Pandey,
learned AGA for the State and Sri
Gyanendra Kumar Pandey, Advocate who
has filed his 'Vakalatnama' along with
counter affidavit on behalf of opposite
party no. 2, the same are taken on record.

2. Learned counsel for the petitioner
has submitted that he will not file rejoinder
affidavit and has requested that the matter
may be heard finally on the basis of
material available on record.

3. This petition has been filed under
section 482 Cr.P.C. by the petitioner for
setting aside / quashing the impugned
summoning order dated 15.10.2010 passed
888 INDIAN LAW REPORTS ALLAHABAD SERIES
by the learned C.J.M., Bahraich against the
petitioner and 6 others u/s 406, 419, 420
IPC in Complaint Case No. 4383 of 2010
(Ramesh Chandra Mishra vs. Ramesh Iyer
and others) contained as Annexure no. 1.

4. By means of this petition the
petitioner has prayed following relief :

"Wherefore, for the facts and
reasons stated in the by an petition
supported
by
affidavit,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to quash the
impugned
summoning
orders
dated
15.10.2010
passed
by
learned
Chief
Judicial Magistrate Bahriach as well as
Order dated 10.02.2011 by which the
bailable warrant has been issued against
the petitioner in complaint case no.
4383/2010 Ramesh Chandra Mishra Vs
Ramesh Iyer & others contained as
Annexure no 1 & 2 to this petition It is
further prayed that this Hon'ble Court may
kindly be pleased to stay the proceedings of
complaint case no.4383/2010 Ramesh
Chandra Mishra Vs. Ramesh lyer & others
pending before Chief Judicial Magistrate
Bahraich, during pendency of the petition."

5. That the petitioner is working as
Managing
Director
of
Mahindra
&
Mahindra Financial Services Ltd. (referred
as 'MMFSL' hereinafter), having his office
at Mumbai and having no concern with
day-to-day affairs of the Branches.

6. Learned Counsel for the petitioner
submits that the facts of the case, in brief,
are that in the year 2006 a Bolero vehicle
was financed to one Durgesh Kumar
Vaishya
by
MMFSL,
which
was
surrendered by him after default of
installment.
The
said
Vehicle
was
thereafter sold to opposite party no. 2,
Ramesh Chandra Mishra for Rs. 3,50,000/-,
who issued 4 post-dated cheques bearing
Cheque No. 881607 dated 26.12.2007 for
Rs. 1,00,000/- Cheque No. 881608 dated
28.12.2007 for Rs. 1,00,000/-, Cheque No.
881609 dated 31.12.2007 for Rs. 50,000/-
and Cheque No. 881615 dated 31.01.2008
for Rs. 1,00,000/-.

7. That the opposite party no. 2
unauthorizedly sold the said Vehicle to one
Mehtab Gori for an amount of Rs,
3,51,000/-
showing
himself
to
be
Authorized Representative and employee
of MMFSL, he fabricated a payment
receipt dated 28.11.2007 on a Rs. 20/-
Judicial Stamp Paper Impersonating as
Recovery Officer of the company. The
opposite party no. 2 also managed to
transfer the vehicle from the R.T.O. on the
basis of forged and fabricated documents
and got issued a temporary authorization of
registration from the R.T.O. in the name of
his Purchaser Mehtab Ahmad. In the
meantime 2 out of 4 cheques provided by
the opposite party no. 2 to MMFSL got
dishonored due to insufficient funds,
against
which
the
MMFSL
filed
a
complaint case on 16.06.2008 u/s 138 of
Negotiable Instruments Act bearing Case
No. 713/2008 (later changed to Case No.
300 of 2010 after transfer), the 2nd
Additional Civil Judge, (SD), Faizabad
summoned the opposite party no. 2 in the
said case.

8. That the opposite party no. 2
coming to know about the summoning
under Negotiable instruments Act, filed a
complaint / application u/s 156 (3) Cr.P.C.
in the court of C.J.M., Bahraich against
three persons only including the present
applicant alleging that the MMFSL has
taken
Rs.
1,00,000/-
cash
and
Rs.
1,50,000/- through cheque, but has not
3 All. Ramesh Iyer Vs. State of U.P. & Anr.
889
handed over the vehicle, instead sold it to
some third person and misappropriated the
money given by the opposite party no. 2.

9. That the said application u/s 156
(3) Cr.P.C. was allowed by the C.J.M.,
Bahraich on 18.10.2008 and direction was
issued to lodge an FIR, the concerned
police lodged FIR No. 72/2008 u/s 406,
409 IPC, P.S. Kotwali Bahraich, District
Bahraich (Annexure-6). The concerned
Police
after
detailed
investigation,
expunged the name of all the three persons
in the FIR, and filed charge-sheet on
19.03.2009 against the opposite party no. 2,
Ramesh
Chandra
Mishra
itself
U/s
406/409/419/420/467/468 IPC. The person
Mehtab Gori to whom the opposite party
no. 2 has sold the said vehicle also gave
statement against the said opposite party
no. 2.

10. That the opposite party no. 2
Ramesh Chandra Mishra, when came to
know about the charge-sheet against him,
he filed a complaint case before C.J.M.,
Bahraich on 24.09.2010 on totally false and
concocted facts and arrayed even the
Investigation officer of the case as well as
the purchaser of the vehicle as accused.
There are general allegations against the
present petitioner and no specific role has
been assigned.

11. That on the same day i.e.
24.09.2010, the statement under section
200 Cr.P.C. of the complainant has also
been recorded by the learned C.J.M., the
complainant (opposite party no. 2) in this
petition repeated the contents of his
complaint.

12.

That
on
12.10.2010
the
complainant got the statement of two
chance witnesses recorded u/s section 202
Cr.P.C., the said witnesses namely, Santosh
Yadav and Mohammad Ahmad, who
claimed that they were present in the
Branch office of MMFSI, at Bahraich for
some loan inquiries when alleged scuffle
between the complainant and branch
officials took place, but they have not
whispered a word about the present
petitioner. On the basis of these statements
the
learned
C.J.M.,
Bahraich
issued
summons to the petitioner and 6 other
persons for facing trial us 406,419,420 IPC,
on a proforma summoning order, without
any application of the judicial mind.

13. While appreciating the aforesaid
facts this Court on the first date of
admission granted confirmed interim order
on 21.4.2011 which reads as under :

"Issue notice to respondent no. 2.

List after service report.

Upon perusal of the record, it is
apparent that for the same subject matter
as respondent no. 2 is himself as an
accused on the basis of charge-sheet dated
19th of March, 2009. Therefore, prima
facie, I am of the view that the complaint
lodged by him is unsustainable. Under this
circumstance, I hereby stay the proceeding
of Complaint Case No. 4383 of 2010
pending before the court of Chief Judicial
Magistrate, Bahraich till further order of
this Court."

14. Learned counsel for the petitioner
has further submitted that the impugned
summoning order issued by the Learned
Magistrate is bad in law and against the
settled principles of law, as despite noting
the fact that the petitioner and some other
persons who have been made accused in
the alleged complaint does not reside in the
territorial jurisdiction of learned magistrate,
he proceeded to issue summons without
890 INDIAN LAW REPORTS ALLAHABAD SERIES
complying the mandatory provisions of
section 202 (1) Cr.P.C. in this regard the
Hon'ble Supreme Court in the case of
Abhijit Pawar vs. Hemant Madhukar
Nimbalkar & Anr "(2017) 3 SCC 528" has
categorically held that "...Thus in those
cases where the accused is residing at a
place beyond the area in which the
Magistrate exercises his jurisdiction, it is
mandatory on the part of the magistrate to
conduct an enquiry or investigation before
issuing the process, so that false complaints
are filtered and rejected."

15. It has been submitted that the
applicant is Managing Director of the
MMFSL, under whom, thousands of
branches across India functions, it is
impossible for a person sitting at Mumbai
to interfere or monitor day to day functions
of a Branch, the petitioner in his entire
career never visited Bahraich. Even for the
sake of arguments, even if entire material
on record is taken on its face value, then
also by no stretch of imagination, it
discloses any cognizable offence by the
present petitioner/applicant.

16. In the light of the aforesaid
submission the learned counsel for the
petitioner has submitted that the learned
Magistrate has not applied his judicial mind
while issuing the summons. The Learned
Magistrate failed to comply with the
mandatory provisions of Section 202 (1)
Cr.P.C. as settled by the Hon'ble Supreme
Court in the catena of Judgments. That
Summoning of an accused in a criminal
case is a serious matter. Criminal law
cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. There is
absolutely non-application of judicial mind
while issuing the summons and it appears
that the Learned Magistrate is swayed away
on the basis of concocted statements
without any substance on record. The
learned Magistrate totally failed to consider
that the opposite party no. 2, Ramesh
Chandra Mishra himself has been made an
accused in the same case and Police has
filed charge-sheet against him in heinous
offences. The principles of vicarious
liability is inapplicable in the present set of
facts and circumstances.

17. Learned counsel for the petitioner
has submitted that now these days there is
very high tendency to implicate higher
officials of the company in criminal cases
to exert pressure.

18. In support of his submissions,
learned counsel for the petitioner has
placed reliance on the following judgments
of Hon'ble Apex Court in re : Pepsi Foods
Ltd. vs. Special Judicial Magistrate (1998)
5 SCC 749; Ravindranatha Bajpe v.
Mangalore Special Economic Zone Ltd.,
(2022) 15 SCC 430; and State of Haryana
v. Bhajan Lal, 1992 Supp (1) SCC 335:
1992 SCC (Cri) 426.

19. Learned AGA has, however, tried
to defend the impugned summoning order
as well as order to issue bailable warrant
but could not dispute the aforesaid factual
and legal submissions of learned counsel
for the petitioner.

20. Learned counsel for the private
opposite party has also tried to defend the
impugned orders but could not convince
the court as to how for the same subject
matter where the opposite party no. 2
himself is an accused on the basis of
charge-sheet
dated
19.3.2009,
the
complaint can be lodged against him after
3 All. Ramesh Iyer Vs. State of U.P. & Anr.
891
filing
the
aforesaid
charge-sheet
on
24.9.2010.

21. In the counter affidavit which has
been filed on 19.2.2024, Sri Gyanendra
Kumar Pandey could not demonstrate any
material
justifying
the
complaint
of
opposite
party
no.
2
and
aforesaid
impugned orders. Sri Pandey has stated that
when the complaint has been filed;
statement u/s 200 and 202 Cr.P.C. has been
recorded; summoning order has been issued
against the petitioner and on account of
non-cooperation of the petitioner the
Bailable Warrant has been issued, then this
Court may not interfere in the aforesaid
proceedings and the direction may be
issued to the petitioner to appear before the
court concerned and participated in the
proceedings. Therefore, Sri Pandey has
requested that the instant petition may be
dismissed.

22. Heard learned counsel for the
parties, perused the material available on
record as well as decisions of the Apex
Court, so referred by the parties at the very
outset, I am of the considered opinion that
while taking cognizance of the allegations
of the complaint where the opposite party /
alleged accused person is residing at a
place beyond the area in which the
Magistrate exercises his jurisdiction and the
allegations are not related to the offences
triable by the sessions it would be
mandatory on the part of the Magistrate to
conduct the inquiry or investigation before
issuing the process in terms of section
202(1) Cr.P.C., so that false complaints are
filtered and rejected.

23. The Apex Court in re: Abhijit
Pawar (supra) vide para 23 has held as
under :

"23. Admitted position in law is
that in those cases where the accused is
residing at a place beyond the area in
which
the
Magistrate
exercises
his
jurisdiction, it is mandatory on the part of
the Magistrate to conduct an enquiry or
investigation before issuing the process.
Section 202 CrPC was amended in the year
2005 by the Code of Criminal Procedure
(Amendment) Act, 2005, with effect from
22-6- 2006 by adding the words "and shall,
in a case where the accused is residing at a
place beyond the area in which he
exercises his Jurisdiction". There is a vital
purpose
or
objective
behind
this
amendment, namely, to ward off false
complaints against such persons residing at
a far-off places in order to save them from
unnecessary
harassment.
Thus,
the
amended provision casts an obligation on
the Magistrate to conduct enquiry or direct
investigation before issuing the process, so
that false complaints are filtered and
rejected.
The
aforesaid
purpose
is
specifically mentioned in the note appended
to the Bill proposing the said amendment.

24. Though at the time of issuing
summons the mini trial is not required by
the court concerned but, at least, the
Magistrate must apply its judicious mind
appreciating and perusing carefully the
material available on record to be satisfied
as to whether the allegations are prima
facie convincing to summon the person.
The law is trite that summoning of an
accused in a criminal case is a serious
matter,
therefore,
the
order
of
the
Magistrate summoning the accused must
reflect that he has applied the mind to facts
and circumstances and law applicable
thereto.

25. The Apex Court in re: Pepsi
Foods Ltd. (supra) vide para 28 has held as
under :

"28. Summoning of an accused in
a criminal case is a serious matter.
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal law cannot be set into motion as a
matter of course. It is not that the
complainant has to bring only two
witnesses to support his allegations in the
complaint to have the criminal law set into
motion. The order of the Magistrate
summoning the accused must reflect that he
has applied his mind to the facts of the case
and the law applicable thereto. He has to
examine the nature of allegations made in
the complaint and the evidence both oral
and documentary in support thereof and
would that be sufficient for the complainant
to succeed in bringing charge home to the
accused. It is not that the Magistrate is a
silent spectator at the time of recording of
preliminary evidence before summoning of
the accused. The Magistrate has to
carefully scrutinise the evidence brought on
record and may even himself put questions
to the complainant and his witnesses to
elicit answers to find out the truthfulness of
the allegations or otherwise and then
examine if any offence is prima facie
committed by all or any of the accused."

26. Similarly in re: Ravindranatha
(supra), vide para 8.3 it has been observed
that :

"8.3. As held by this Court in
India Infoline Ltd. [GHCL Employees
Stock Option Trust v. India Infoline Ltd.,
(2013) 4 SCC 505: (2013) 2 SCC (Cri)
414), in the order issuing summons, the
learned Magistrate has to record his
satisfaction about a prima facie case
against the accused who are Managing
Director, the Company Secretary and the
Directors of the Company and the role
played
by
them
in
their
respective
capacities which is sine qua non for
initiating criminal proceedings against
them. Looking to the averments and the
allegations in the complaint, there are no
specific allegations and/or averments with
respect to role played by them in their
capacity as Chairman, Managing Director,
Executive
Director,
Deputy
General
Manager and Planner & Executor. Merely
because they are Chairman, Managing
Director/Executive Director and/or Deputy
General
Manager
and/or
Planner
/
Supervisor of A-1 and A-6, without any
specific role attributed and the role played
by them in their capacity, they cannot be
arrayed as an accused, more particularly
they cannot be held vicariously liable for
the offences committed by A-1 and A-6."

27. The present case is also covered
by para. 102 of the judgment of the Apex
Court in re: Bhajan Lal (supra), which
reads 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.

(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
3 All. Ramesh Iyer Vs. State of U.P. & Anr.
893
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 of 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."

28. In the present case the learned
court concerned has not undertaken the
required exercise u/s 202(1) Cr.P.C. and
has not applied its judicial mind to peruse
carefully
the
relevant
fact
that
the
complainant / opposite party has filed the
complaint
against
the
petitioner
on
24.9.2010 in the same subject matter where
the charge-sheet has already been filed
against him before the competent court of
law on 19.3.2009. If the magistrate had
perused carefully the allegations and
material available on record by applying its
judicious mind the very fact would have
been cleared that the present complaint is
nothing but a counter-blast and by filing the
aforesaid complaint the opposite party no. 2
has misused the process of law / court.

29. The facts and circumstances of the
present case are squarely covered in para
102 (5) and 102(7) of Bhajan Lal (supra)
inasmuch as the allegation made in the
complaint are so absurd and inherently
improbable inasmuch as the allegations, so
leveled against the petitioner, are not only
baseless and misconceived but those
allegations have been leveled on account of
malafide intention and ulterior motive
prosecuting the petitioner maliciously for
wreaking vengeance. Therefore, in view of
the aforesaid facts and circumstances, I
have no hesitation to quash the impugned
complaint bearing Complaint Case no.
4383/2010 (Ramesh Chandra Mishra Vs
Ramesh Iyer & others) as well as impugned
summoning order dated 15.10.2010 and
Bailable Warrant dated 10.2.2011 passed
by the C.J.M., Bahraich.

30. Accordingly, I hereby quash the
impugned complaint bearing Complaint
894 INDIAN LAW REPORTS ALLAHABAD SERIES
Case no. 4383/2010 (Ramesh Chandra
Mishra Vs Ramesh Iyer & others) as well
as impugned summoning orders dated
15.10.2010
passed
by
learned
Chief
Judicial Magistrate Bahraich as well as
Order dated 10.02.2011 by which the
bailable warrant has been issued against the
petitioner in Complaint Case no. 4383/2010
(Ramesh Chandra Mishra Vs Ramesh Iyer
& others) contained as Annexure no 1 & 2
to the writ petition.

31. Petition is allowed.

32. No order as to costs.
----------
(2024) 3 ILRA 894
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 1926 of 2024

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

Counsel for the Applicant:
Chandan
Srivastava,
Rajneesh
Kumar
Singh, Yogesh Somvanshi

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 171H & 188 - Code of Criminal
Procedure, 1973 - Sections 155(2), 190 &
195(1) - Counsel for applicant submitted
that during Urban Local Bodies Election,
FIR lodged by Sub-Inspector alleging that
applicant, as candidate from Ward No. 21
affixed poster on pole in front of house of
Ashok Jaiswal, constituting offences u/s
171-H and 188 IPC - Further submitted
that charge sheet and cognizance taken
are without jurisdiction, as Section 171-H
IPC is non-cognizable and Section 195(1)
Cr.P.C. bars cognizance of offences u/s
172-188 IPC except on written complaint
by competent public servant - Held, both
offences are non-cognizable, hence, u/s
155(2) Cr.P.C., police have no right to
investigate matter, without permission of
Magistrate, who has jurisdiction to try
those offences - Thus, rendering charge
sheet vitiated by incurable defects and
procedural irregularities - Neither FIR nor
charge sheet discloses any cognizable
offence, enabling police to investigate
both
cognizable
and
non-cognizable
offences together and to file charge sheet,
hence, charge sheet and criminal case
liable to be quashed - Thus, entire criminal
proceedings, quashed. (Para 3 to 6, 28,
29)

Application allowed. (E-13)

List of Cases cited:

1. Sachida Nand Singh & anr. Vs St. of Bihar &
anr.; (1998) 2 SCC 493, (Para 7)

2. Daulat Ram Vs St. of Punj.; AIR 1962 SC
1206, (Para 4)

3. M.S. Ahlawat Vs St. of Haryana & anr.; AIR
2000 SC 168, (Para 5)

4. Inder Mohan Goswami Vs St. of Uttaranchal
(2007)12 SCC 1, (Para 23)

5.
Lalankumar
Singh
&
ors..Vs
St.
of
Maharashtra reported in 2022 SCC Online SC
1383, (Para 38)

6. St. of Haryana Vs Bhajan Lal reported in 1992
Supp (1) SCC 335, (Para 102)

7. R.P. Kapoor Vs St. of Punj., AIR 1960 S.C.
866

8. St. of Bihar Vs P.P. Sharma, 1992 SCC (Crl.)
192

9. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283