# Shankar Prasad Agrahari v. State of U.P.& Anr

- **Citation:** (2019) 4 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-18
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 36324 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankar-prasad-agrahari-v-state-of-u-p-anr-44929
- **Pages:** 4

## Headnote

186 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 & Indian
Penal Code, 1860 - Section 420 -
challenge to - summoning order- Factual
correctness
or
incorrectness
or
appreciation of same cannot be made,
under
Section
482,
in
exercise
of
inherent power. (Para 4)

While exercising jurisdiction under section 482
of the Code, the High Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable apprehension of it
accusation would not be sustained. That is the
function of the trial Judge/Court. To prevent
abuse of the process of the Court, High Court
in exercise of its inherent powers under
section 482 could quash the proceedings but
there would be justification for interference
only when the complaint did not disclose any
offence
or
was
frivolous
vexatious
or
oppressive. (Para 4 & 5)

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

List of cases cited: -

## Text

4 All. Shankar Prasad Agrahari Vs. State of U.P. & Anr.
185
complaint case and records statement
under Section 202 Cr.P.C., it would be
mandatory
before
taking
cognizance
against
the
accused
to
seek
prior
prosecution
sanction.
It
would
be
appropriate for the complainant to seek
prior permission for prosecution of the
public
Servant
without
such
prior
permission from the competent authority
no cognizance on the said complaint can
be taken by the court.

19. In the present case, I find that
the applicant being Assistant Branch
Manager of Poorvanchal Gramin Bank
has been stated to have demanded 10% of
the amount of sanctioned loan from the
Opposite Party no. 2 before he would
release the same, which was refused to be
given, hence the complainant moved the
present complaint. It is apparent that the
Opposite Party no. 2 ought to have sought
the sanction to prosecute the accusedapplicant
from
appropriate
authority
before moving the complaint before the
trial court. Apparently, it appears that the
cognizance of the offence which has been
taken in this matter by the trial court,
appears to be in violation of the
established principle of law as laid down
in Anil Kumar (supra) that in this case
of
alleged
corruption,
in
which
summoning order has been passed under
Section 7 and 13 of the Corruption Act,
the cognizance has been taken by the trial
court without the complainant having
obtained the sanction from the appropriate
authority, the accused-applicant being a
Government Servant.

20. As regards the fact that the
accused-applicant has already approached
this Court twice earlier and each time his
application was rejected, who initially
approached this Court by preferring
application No. 1205 of 2014 in which he
was directed to appear before the trial
court to seek discharge but his application
has been rejected and thereafter, he
approached this court in Revision No. 635
of 2014 but the same was also summarily
rejected, in each of above mentioned two
orders, the present point of prosecution
sanction not having been obtained against
the accused-applicant, had not been taken
into consideration which to me appears to
be mandatory in the present case. In view
of the above, I am of the view, the
impugned
order
along
with
the
summoning order in the present case
deserve to be quashed with liberty to the
complainant to approach the Court again
after having obtained prior sanction to
prosecute the applicant from appropriate
authority.

The present Application under
Section 482 Cr.P.C. deserves to be
allowed and is accordingly, allowed.
----------

(2019)12 ILR A185

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
36324 of 2019

Shankar Prasad Agrahari ...Applicant
Versus
State of U.P.& Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Kamal Dev Singh Chanchal

Counsel for the Opposite Parties:
A.G.A.
186 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 & Indian
Penal Code, 1860 - Section 420 -
challenge to - summoning order- Factual
correctness
or
incorrectness
or
appreciation of same cannot be made,
under
Section
482,
in
exercise
of
inherent power. (Para 4)

While exercising jurisdiction under section 482
of the Code, the High Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable apprehension of it
accusation would not be sustained. That is the
function of the trial Judge/Court. To prevent
abuse of the process of the Court, High Court
in exercise of its inherent powers under
section 482 could quash the proceedings but
there would be justification for interference
only when the complaint did not disclose any
offence
or
was
frivolous
vexatious
or
oppressive. (Para 4 & 5)

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

List of cases cited: -

1. St. of A.P. Vs Gour Sheety Mahesh J.T.
2010 (6) SCC 588

2. Hamida Vs Rashid (2008) 1 SCC 474,

3. Monika Kumar Vs St. of U.P. (2008) 8 SCC 781

4. Popular Muthiah Vs State, Represented by
Inspector of Police, (2006) 7 SCC 296

5. Dhanlakshmi Vs R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494

6. St. of Bih. Vs Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1,

7. Amrawati and anr.Vs. St.of U.P. r 2004 (57)
ALR 290

8. Lal Kamlendra Pratap Singh Vs. St. of U.P.
2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Heard learned counsel for the
applicant over this Application, moved
under Section 482 of Code of Criminal
Procedure,
1973,
by
the
applicant,
Shankar Prasad Agrahari, against State of
U.P. and Vijai Bahadur Saini, challenging
summoning order, dated 29th August,
2019, passed by the Additional Chief
Judicial
Magistrate,
Varanasi,
in
Complaint Case No. 2278 of 2018, under
Section 420 of Indian Penal Code of
Police Station-Sarnath, District-Varanasi,
pending in the court of Additional Chief
Judicial Magistrate, Varanasi.

2. Learned counsel for the applicant
argued that the impugned summoning order
has been passed without any evidence on
record. Very contention of the complainant
was not substantiated by the witnesses as
there were many contradictions in the
statements. More so, alleged payment being
said to have been made in 6th and 7th
instalments when there was period of
Notebandi and it was not possible to
withdraw such huge amount. This itself
shows falsity of the complainant. Witnesses
of the complainant are his relatives and their
statements
are
full
of
inconsistency.
Complainant himself was a Principal Peon
of the Bank, concerned, and as such he was
fully aware of the functioning of the Bank,
even then, this accusation is there. Hence,
this Application, under Section 482 of
Cr.P.C., before this Court for exercise of
inherent power, with a prayer for setting
aside impugned summoning order.

3. Learned AGA, representing State
of U.P., has vehemently opposed this
Application.

4. From very perusal of the
impugned summoning order, it is apparent
that the same has been passed by the
4 All. Shankar Prasad Agrahari Vs. State of U.P. & Anr.
187
Magistrate on the basis of the statements
recorded, under Sections 200 and 202 of
Cr.P.C.,
in
enquiry
made
by
the
Magistrate and in all those statements,
there is corroboration of contention of
complaint. There is nothing against those
statements before the Magistrate and on
the basis of those statements above
impugned summoning order was passed.
Factual correctness or incorrectness or
appreciation of same cannot be made,
under Section 482, in exercise of inherent
power by this Court because the Apex
Court, in State of Andhra Pradesh v.
Gaurishetty Mahesh, JT 2010 (6) SC
588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844,
has
propounded
that
"While
exercising jurisdiction under section 482
of the Code, the High Court would not
ordinarily embark upon an enquiry
whether the evidence in question is
reliable or not or whether on a reasonable
apprehension of it accusation would not
be sustained. That is the function of the
trial Judge/Court". In another subsequent
Hamida v. Rashid, (2008) 1 SCC 474,
hon'ble Apex Court propounded that
"Ends of justice would be better served if
valuable time of the Court is spent in
hearing
those
appeals
rather
than
entertaining petitions under Section 482
at an interlocutory stage which after filed
with some oblique motive in order to
circumvent the prescribed procedure, or
to delay the trial which enable to win over
the witness or may disinterested in giving
evidence,
ultimately
resulting
in
miscarriage of Justice". In again another
subsequent Monica Kumar v. State of
Uttar Pradesh, (2008) 8 SCC 781, the
Apex Court has propounded "Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in the section itself." While
interpreting this jurisdiction of High
Court Apex Court in Popular Muthiah v.
State, Represented by Inspector of
Police,
(2006)
7
SCC
296
has
propounded "High Court can exercise
jurisdiction suo motu in the interest of
justice. It can do so while exercising other
jurisdictions
such
as
appellate
or
revisional
jurisdiction.
No
formal
application
for
invoking
inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters.
It can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".

5. Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
Dhanlakshmi v. R.Prasana Kumar, (1990)
Cr LJ 320 (DB): AIR 1990 SC 494 has
propounded "To prevent abuse of the process
of the Court, High Court in exercise of its
inherent powers under section 482 could
quash the proceedings but there would be
justification for interference only when the
complaint did not disclose any offence or was
frivolous vexatious or oppressive" as well as
in State of Bihar v. Murad Ali Khan, (1989)
Cr LJ 1005: AIR 1989 SC 1, Apex Court
propounded "In exercising jurisdiction under
Section 482 High Court would not embark
upon an enquiry whether the allegations in
the complaint are likely to be established by
evidence or not".

6. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above.

7. In view of what has been
discussed above, there is no ground of any
indulgence to be granted by this Court.
188 INDIAN LAW REPORTS ALLAHABAD SERIES
Accordingly,
this Application,
under
Section 482 of Cr.P.C. deserves dismissal,
being devoid of merits, and it stands
dismissed accordingly.

8. However, it is directed that if the
applicant appears and surrenders before
the court below within 30 days from
today and applies for bail, his prayer for
bail shall be considered and decided in
view of the settled law laid by this Court
in the case of Amrawati and another Vs.
State of U.P. reported in 2004 (57) ALR
290 as well as judgement passed by
Hon'ble Apex Court reported in 2009 (3)
ADJ 322 (SC) Lal Kamlendra Pratap
Singh Vs. State of U.P.

9. For a period of 30 days from today,
no coercive action shall be taken against the
applicant. However, in case, the applicant
does not appear before the Court below,
within the aforesaid period, coercive action
shall be taken against them.
----------

(2019)12 ILR A188

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2019
BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
36782 of 2019

Talif ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Kumar Pathak

Counsel for the Opposite Parties:
A.G.A., Sri Pankaj Kumar Sharma
A. Criminal Law - Indian Penal Code, 1860-
Section
354-Compounding
of
non
-
compoundable offence or offences on basis
of mutual compromise does not conclude in
quashing of criminal proceedings
- Code of
Criminal Procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal Code,
1860 - Section 354 - non-compoundable
offence - The protection of children from
sexual offences act,2012 - Section 7 & 8
(Sexual assault & Punishment for sexual
assault) -
non-compoundable offence -
category of heinous and serious offences -
treated as crime against the society and not
against the individual alone -
Inherent
power is of wide plenitude with no
statutory limitation but it has to be
exercised in accord with the guideline
engrafted in such power viz.: (i) to secure
the ends of justice, or (ii) to prevent abuse
of the process of any court.(Para-11)

Applicant is an accused - obscene activity with
the minor girl who is victim
- father
(complainant) of victim entered into mutual
compromise with the accused .

HELD:- In view of the facts and circumstances
of the present case , the quashing of the
entire criminal proceedings by compounding of
non- compoundable offences on the basis of
mutual compromise , shall not be justified
under the powers conferred by section 482
criminal procedure code.(Para-18)

Application u/s 482 Cr.P.C. dismissed. (E-7)

LIST OF CASES CITED:-

1. State of M.P. Vs. laxmi Narayan , (2019) 5 SCC 688

2. State of Maharashtra Vs. Vikram Anantrai
Doshi, (2014)15 SCC 29

3. Gian Singh vs. State of Punjab, (2012) 10
SCC 303

4. State of Madhya Pradesh vs. Deepak ,
(2014) 10 SCC 285

5. State of Madhya Pradesh vs. Manish, (2015)
8
SCC
307