# Shashank Gupta @ Guddu & Ors v. State of U.P. & Anr

- **Citation:** (2025) 5 ILRA 1277
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-27
- **Case number:** Application U/S 528 BNSS No. 10997 of 2025
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashank-gupta-guddu-ors-v-state-of-u-p-anr-53454
- **Pages:** 33

## Headnote

Law
-
Criminal
Procedure
Code,1973- Section 155 (2) - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Section
174 (2) -The mandate of Section-155 (2)
Cr.P.C. (corresponding Section 174(2) of BNSS) -
that police cannot investigate a non-cognizable
offence-if the police continues to investigate an
FIR-which does not disclose cognizable offence-
it would be against the mandate of Cr.P.C./BNSS
and in such case, court can interfere-or stop the
investigation in exercise of its power u/s 528
BNSS (corresponding Section 482 Cr.P.C.)- legal
principles established in the Full Bench decision
of Ramlal Yadav - may no longer be applicable
due to recent developments in the law as
interpreted by the Apex Court-refer this matter
to a Larger Bench comprising nine judges. (E-9)

List of Cases cited:

## Text

_Characters 0–39,800 of 114,556. This is a partial read: ask again with offset=39800 for what follows._

5 All. Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
1277
118. Thus, from their testimony, a
big question mark is raised about the
veracity of the recoveries at the pointing
out of the appellant Pankaj and makes it
non-est. In view thereof, we are of the
opinion that the conviction of the appellant,
under Section 4/25 of the Arms Act also
cannot be upheld and is accordingly set
aside.

119. In view of the foregoing
discussions, we are of the opinion that the
instant appeal is liable to be allowed and is
accordingly,
allowed.
The
impugned
judgment and order passed by the trial
court is set aside. The appellant is already
on bail. He need not to surrender. His bail
bonds are cancelled and sureties are
discharged
subject
to
compliance
of
Section 437-A of Cr.P.C. to the satisfaction
of the trial court.

120. Let a copy of this judgment
and order be sent to the trial court
alongwith trial court record for information
and necessary compliance.
----------
(2025) 5 ILRA 1277
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 528 BNSS No. 10997 of 2025

Shashank Gupta @ Guddu & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Dharmendra Vaish

Counsel for the Respondents:
G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973- Section 155 (2) - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Section
174 (2) -The mandate of Section-155 (2)
Cr.P.C. (corresponding Section 174(2) of BNSS) -
that police cannot investigate a non-cognizable
offence-if the police continues to investigate an
FIR-which does not disclose cognizable offence-
it would be against the mandate of Cr.P.C./BNSS
and in such case, court can interfere-or stop the
investigation in exercise of its power u/s 528
BNSS (corresponding Section 482 Cr.P.C.)- legal
principles established in the Full Bench decision
of Ramlal Yadav - may no longer be applicable
due to recent developments in the law as
interpreted by the Apex Court-refer this matter
to a Larger Bench comprising nine judges. (E-9)

List of Cases cited:

1. Ramlal Yadav & ors.Vs St. of U.P. & ors.1989
SCC OnLine ALL 73

2. St. of Har. & ors.Vs Bhajan Lal & ors.1992
Supp 1 SCC 335

3. Imran Pratapgadhi Vs St. of Gujarat & anr. in
Criminal Appeal No.1545 of 2025

4. The King Emperor Vs Khawaja Nazir Ahmad
1944 SCC OnLine PC 29

5. S.N. Sharma Vs Bipen Kumar Tiwari & ors.
reported in (1970) 1 SCC 653

6. Gulam Mustafa Vs St. of Karn. & anr., (2023)
18 SCC 265

7. Abhishek Vs St. of M.P. reported in (2023) 16
SCC 666

8. P. Ramachandra Rao Vs St. of Karn. (2002) 4
SCC 578

9. Padal Venkata Rama Reddy @ Ramu Vs
Kovvuri Satyanarayana Reddy & ors.reported in
(2011) 12 SCC 437,

10. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr. (2017) 9 SCC
641
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Anand Kumar Mohatta & anr. Vs St. (NCT of
Delhi), Department of Home & anr. (2019) 11
SCC 706

12. Mahmood Ali & ors.Vs St. of U.P. &
ors.(2023) 15 SCC 488

13. Bhajan Lal (supra) and R.P. Kapur Vs St. of
Pun., reported in A.I.R. 1960 SC 866

14. T.T. Antony Vs St. of Kerala & ors.(2001) 6
SCC 181

15. Janata Dal Vs H.S. Chowdhary & ors.(1992)
4 SCC 305

16. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors.(2021) 19 SCC 401

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Dharmendra Vaish,
learned counsel for the applicants, Sri
Pankaj Saxena, learned AGA for the State,
Amicus Curiae Sri Manish Tiwari, learned
Senior Advocate assisted by Sri Raunak
Chaturvedi and Amicus Curiae Sri Jitendra
Kumar Shishodiya.

2. Present application was initially
filed
challenging
the
order
dated
03.02.2025 passed by CJM, Chitrakoot, u/s
175(3) of BNSS (corresponding to Section
156(3) Cr.P.C.) by which, police were
directed to register the first information
report. Subsequently, an amendment was
also made with the permission of the court
seeking quashment of consequential FIR
dated 26.02.2025 in case crime no.114 of
2025, u/s 498A, 323, 504, 506, 342 IPC
read with Section 3/4 of D.P. Act, Police
Station- Karvi, District- Chitrakoot.

3. However, learned AGA raised a
preliminary objection that in view of the
Full Bench judgement of Seven Judge's
Bench in the case of Ramlal Yadav and
Others Vs. State of U.P. & Others
reported in 1989 SCC OnLine ALL 73,
application
u/s
528
of
BNSS
(corresponding Section 482 Cr.P.C.) for
quashing the FIR is not maintainable as
same could be challenged under Article 226
of the Constitution of India.

4. Per contra, learned counsel for the
applicants has submitted that in view of the
subsequent judgements of the Apex Court
wherein it is observed that the FIR can be
quashed in exercise of power u/s 528 of
BNSS (corresponding Section 482 Cr.P.C.),
the law laid down by the Full Bench in
Ramlal Yadav's case (supra) is no more a
good law and same is deemed to be
overruled by the subsequent judgements of
Hon'ble Apex Court in State of Haryana
And Others Vs. Bhajan Lal & Others
reported in 1992 Supp 1 SCC 335 as well
as Imran Pratapgadhi Vs. State of
Gujarat And Anr. in Criminal Appeal
No.1545 of 2025.

5. In view of the above submission,
an important legal question arises for
determination is whether in view of the
subsequent judgement of Apex Court, FIR
can be challenged u/s 528 of BNSS
(corresponding Section 482 Cr.P.C.) and
the Full Bench judgement of Ramlal
Yadav (supra) is deemed to be overruled
by the subsequent judgements of Apex
Court.

6. Considering the fact that important
legal question has arisen, this court also
requested Sri Manish Tiwari, learned
Senior Advocate, Sri Raunak Chaturvedi as
well as Panel Lawyer of High Court Legal
Services Authority Sri Jitendra Shisodhia,
who assisted the court as amicus curiae by
addressing on the legal question that has
been arisen herein.
5 All. Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
1279

Submission of learned counsel for
the Applicants :

7. Sri Dharmendra Vaish, learned
counsel for the applicants has submitted
that the Full Bench judgement of Ramlal
Yadav (supra) heavily relied upon the
judgement of The King Emperor Vs.
Khawaja Nazir Ahmad reported in 1944
SCC OnLine PC 29 and by overlooking
the relevant observations as well as
incorrectly interpreting the judgement of
the Khawaja Nazir Ahmad (supra) observed
that the High Court cannot interfere in the
exercise of power u/s 482 Cr.P.C. during
investigation even if no cognizable offence
is made out from bare perusal of FIR.
Learned counsel for the applicants further
submitted that even in the case of Khawaja
Nazir Ahmad (supra), the privy council
has observed that though the police have
unfettered
power
of
investigation
in
cognizable offence, but if no cognizable
offence is disclosed then police have no
authority to investigate the same and
therefore, in that case, permitted the court
to interfere in such illegal investigation.
Learned counsel for the applicants further
submits that this court, in the case of
Bhajan Lal (supra), has observed that
extraordinary power under Article 226 of
the Constitution of India or inherent power
u/s 482 Cr.P.C. can be exercised either to
prevent abuse of process of court or
otherwise to secure the ends of justice in
the category of cases mentioned in
paragraph nos.102(1) to 102(7).

8. learned counsel for the applicants
also submitted that the Apex Court, in the
recent judgement of Imran Pratapgadhi
(supra)
has
observed
in
paragraph
no.42(vii) that there is no absolute rule that
investigation at the nascent stage cannot be
interfered by the High Court in exercise of
power u/s 482 Cr.P.C. which is equivalent
to 528 of BNSS and if High Court finds
that no offence is made out on the face of it
then just to prevent the abuse of the process
of court, it can always interfere even if the
investigation is at the nascent stage. It is
lastly submitted by learned counsel for the
applicants that the High Court can quash
the F.I.R. in the exercise of power u/s 528
of BNSS (corresponding Section 482
Cr.P.C.) as the Full Bench judgement of
Ramlal Yadav (supra) has been impliedly
overruled by the subsequent judgement of
the Apex Court.

9. It is also submitted by learned
counsel for the applicants that the Apex
Court, in the case of Gulam Mustafa Vs.
State of Karnataka And Another, reported
in (2023) 18 SCC 265, observed that in
appropriate cases, the High Court could
quash the FIR in the exercise of its power
u/s 482 Cr.P.C.

Submission of contention of Sri
Pankaj Saxena, learned AGA

10. Sri Pankaj Saxena, learned AGA
has submitted that 7 Judges Bench of
Ramlal Yadav (supra), after considering
the judgement of the privy council in
Khawaja Nazir Ahmad (supra), has
observed that the police has unfettered
power to investigate the cognizable offence
and the court cannot interfere during
investigation in exercise of power u/s
Section 482 Cr.P.C. (corresponding Section
528 BNSS), therefore FIR can only be
challenged under Article 226 of the
Constitution of India and not u/s 482
Cr.P.C. It is further submitted by learned
AGA
that
power
u/s
528
BNSS
(corresponding Section 482 Cr.P.C.) can be
exercised to give effect to any order under
Cr.P.C. or to prevent the abuse of process of
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
any court or otherwise to secure the ends of
justice but the registration of FIR and
subsequent investigation does not fall
within the above three categories. The FIR
is information of cognizable offence
registered u/s 154 Cr.P.C. and upon
receiving such information about the
cognizable offence, police can investigate
as per Section 157 of Cr.P.C (corresponding
Section 176 of BNSS). Therefore, FIR of
cognizable offence cannot be considered as
an order under Cr.P.C. or process of court
because the same will come into the picture
only after the chargesheet has been filed
before the court. Therefore, power u/s 528
of BNSS (corresponding Section 482
Cr.P.C.) can be exercised only after the
chargesheet has been filed before the court
and cognizance is taken. It is also
submitted by learned AGA that the
category of securing the ends of justice is
vast, but it cannot be interpreted in such a
way in which the court may interfere
during the investigation, and the same
would come only after the proceeding is
pending before the court. It is lastly
submitted by learned AGA that the present
application u/s 528 of BNSS challenging
the FIR deserves to be dismissed on the
ground of maintainability.

11. Sri Pankaj Saxena, learned AGA
also submits that the judgement of Full
Bench in Ramlal Yadav (supra) is binding
on this court given the doctrine of stare
decisis, and he further submitted that in
case of disagreement with the Larger
Bench, the court could not take a contrary
view. It can refer the matter to the Larger
Bench in appropriate cases wherein the
judgement of the Larger Bench appears to
be contrary to the Apex Court judgement.
In support of his contention, learned AGA
has also relied upon the Apex Court's
judgement in the case of Mishri Lal Vs.
Dhirendra Nath reported in (1999) 4
SCC 11 and Shanker Raju Vs. Union of
India reported in (2011) 2 SCC 132.

Contention of Amicus Curiae Sri
Manish Tiwari, learned Senior Advocate

12. Sri Manish Tiwari, learned Senior
Advocate, has submitted that the Full
Bench
judgement
of
Ramlal Yadav
(supra) is essentially passed on the
reasoning given in the judgement of the
privy council in Khawaja Nazir Ahmad
(supra). He submits that in Khawaja
Nazir Ahmad (supra), the privy council
clearly observed that if no cognizable
offence is made out then police has no
authority to investigate the offence at that
stage and court can interfere if police
proceeds
to
conduct
such
illegal
investigation which is barred by Cr.P.C.
itself. Therefore, the privy council observed
in such cases, the High Court can exercise
its
power
u/s
491
of
Old
Cr.P.C.
corresponding to habeas corpus against
illegal detention. Therefore, the entire
interpretation in Khawaja Nazir Ahmad
(supra) regarding the power of court u/s
561-A of the Cr.P.C. (Act No.V of 1898)
(corresponding Section 482 Cr.P.C.) was
concerning the illegal detention not with
respect to the other fundamental right
enshrined
under
Article
21
of
the
Constitution of India which is available at
present and even otherwise there is no
corresponding section in Cr.P.C., 1973 or
BNSS, 2023 to Section 491 of Old Cr.P.C.
Therefore, as of date, the court can interfere
during the illegal investigation only u/s 528
of BNSS (corresponding Section 482
Cr.P.C.).

13. The learned Senior Advocate
further submitted that FIR of cognizable
offence is also an order under Section 173
5 All. Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
1281
of BNSS (corresponding Section 154
Cr.P.C., 1973) and investigation of the FIR
of cognizable offence is also conducted as
per
the
procedure
of
BNSS/Cr.P.C.
Therefore, FIR as well as subsequent
investigation of cognizable offence, can be
interfered by the court in exercise of its
inherent power for the enforcement of the
order of the code, as the police cannot
investigate the FIR where no cognizable
offence is made out.

14. It is further submitted by the
learned Senior Advocate, the extraordinary
constitutional remedy should be exercised
only after exhausting the statutory remedy
and normal statutory remedy to secure the
ends of justice, which is 528 BNSS/482
Cr.P.C. Therefore, in the normal course,
FIR should be challenged under the
statutory remedy of 528 BNSS/482 Cr.P.C.
and only in extraordinary cases, the remedy
under Article 226 of the Constitution of
India may be availed. In support of his
contention, learned Senior Advocate has
also relied upon paragraph no.6 of Apex Court's
judgement in the case of Kim Wansoo Vs.
State of Uttar Pradesh and Others reported in
2025 SCC OnLine SC 17, wherein the Apex
Court observed that normally quashing of the
criminal proceeding would be sought and
would be done in exercise of the inherent power
of High Court u/s 482 Cr.P.C. but certainly that
does not mean that it could not be done in the
invocation of the extraordinary power under
Article 226 of the Constitution of India.
Therefore, extraordinary power under Article
226 of the Constitution of India or inherent
power u/s 482 Cr.P.C. can be exercised by the
High Court either to prevent the abuse of
process of court or otherwise to secure the ends
of justice.

15. It is further submitted by Sri
Manish Tiwari, learned Senior Advocate,
the observations of the Full Bench
judgement of Ramlal Yadav (supra) case
made in paragraph no.22 that if the police
officer conducts the investigation with
malafide, same cannot be quashed under
inherent power under Section 482 Cr.P.C.
but under Article 226 of the Constitution of
India is contrary to the judgement of the
Supreme Court in Bhajan Lal (supra)
wherein the Apex Court very clearly
observed that in the exercise of power u/s
482 Cr.P.C. or in the exercise of Article 226
of the Constitution of India, the court can
interfere where the FIR and investigation is
manifestly tainted with malafide or where
the proceeding is maliciously initiated with
an ulterior motive for wreaking vengeance
on accused.

16. Sri Manish Tiwari, learned Senior
Advocate,
further
submits
that
the
judgement of Khawaja Nazir Ahmad
(supra) was correctly interpreted in the
State of West Bengal And Others Vs.
Swapan Kumar Guha & Others reported
in (1982) 1 SCC 561. In that case, the
Hon'ble Apex Court observed that the
privy council in Khawaja Nazir Ahmad
(supra) also permitted the court to interfere
in the investigation where the report does
not disclose the commission of cognizable
offence and the court does not impose them
a duty to enquiry in such cases. The Apex
Court further observes that the condition
precedent
to
the
commencement
of
investigation u/s 157 Cr.P.C. is that the FIR
must disclose prima facie a cognizable
offence. Therefore, the police have no
unfettered discretion to commence an
investigation u/s 157 Cr.P.C. It is further
submitted by learned Senior Advocate,
Manish Tiwari, that the judgement of S.N.
Sharma Vs. Bipen Kumar Tiwari And
Others reported in (1970) 1 SCC 653
which was relied upon by the Full Bench in
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramlal Yadav (supra), was regarding the
inherent
power
u/s
528
BNSS
(corresponding Section 482 Cr.P.C.) but it
only discusses about the power under
Article 226 of the Constitution of India.
Therefore, the observation in the Full
Bench judgement of Ramlal Yadav's case
(supra) that the FIR and consequential
investigation cannot be quashed in the
exercise of the inherent power u/s 482
Cr.P.C., is incorrect because no such
observations has been made by the Apex
Court in S.N. Sharma (supra).

17. It is also submitted by Sri Manish
Tiwari, learned Senior Advocate that at the
time of delivery of judgement in Ramlal
Yadav (supra), there is no remedy like
Section 491 of old Cr.P.C. and that is why
the court observed that only remedy against
the FIR is extraordinary remedy under
Article 226 of the Constitution of India but
subsequently on implementation of Section
438 Cr.P.C. regarding anticipatory bail,
position has changed because after the
enforcement of Section 438 Cr.P.C. in UP
in the year 2019, protection against arrest
has been granted as statutory remedy,
therefore using the power under Article 226
of the Constitution of India for interim bail
or protection is no more a necessity.
Therefore, as on date, after the enforcement
of Section 438 Cr.P.C. in U.P., remedy for
quashing
the
FIR
or
consequential
proceeding is inherent under Section 528
BNSS (corresponding Section 482 Cr.P.C.)
is a normal statutory remedy which cannot
be curtailed on the basis of the Full Bench
judgement of Ramlal Yadav (supra). It is
lastly
submitted
by
learned
Senior
Advocate, that the coordinate Bench of this
court in the case of Jawed Aslam in
Application u/s 482 No.3380 of 2023
along with the connected cases, has
considered the issue of maintainability of
application u/s 482 Cr.P.C. for quashing the
FIR wherein the Hon'ble court observed
that in view of the subsequent judgement of
the Apex Court in the case of Abhishek Vs.
State of Madhya Pradesh reported in
(2023) 16 SCC 666, application u/s 482
Cr.P.C.
for
quashing
the
FIR
is
maintainable.

18. It is also submitted by the learned
Senior Advocate that power under Article
226 of the Constitution of India can be
exercised where there is a violation of
fundamental right or authority concerned,
lack or excessive use of its jurisdiction, or
to challenge the vires (validity) of a
statutory
provision
or
subordinate
legislation. However, power under Section
528 of BNSS (corresponding Section 482
Cr.P.C.) can be exercised to prevent the
abuse of the process of law and also to
secure the ends of justice, and this power is
much wider than the extraordinary power
under Article 226 of the Constitution of
India in a criminal proceeding.

Submission of Sri Jitendra Kumar
Shishodia, Amicus Curiae

19. Sri Jitendra Kumar Shishodia,
learned amicus curiae, has submitted that
abuse of process of law also includes abuse
of the process of the court. It is further
submitted that the maintainability of
application u/s 528 BNSS (corresponding
Section 482 Cr.P.C.) was considered by the
Apex
Court
in
the
cases
of
P.
Ramachandra
Rao
Vs.
State
of
Karnataka reported in (2002) 4 SCC 578,
Padal Venkata Rama Reddy alias Ramu
Vs. Kovvuri Satyanarayana Reddy &
Others reported in (2011) 12 SCC 437,
Parbatbhai
Aahir
Alias
Parbatbhai
Bhimsinhbhai Karmur and Others Vs.
State of Gujarat and Another reported in
5 All. Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
1283
(2017) 9 SCC 641, Anand Kumar
Mohatta And Another Vs. State (NCT of
Delhi),
Department
of
Home
and
Another reported in (2019) 11 SCC 706
and Abhishek (supra).

20. In the above judgements, Hon'ble
Apex Court observed that FIR can be
quashed in the exercise of inherent power
u/s 528 of BNSS (corresponding Section
482 Cr.PC.). Therefore, the law laid down
by the Full Bench of this court in Ramlal
Yadav (supra) is deemed to be overruled
by subsequent judgements of the Apex
Court. It is further submitted by Sri
Shishodia that the Apex Court, in the case
of Mahmood Ali And Others Vs. State of
Uttar Pradesh and Others reported in
(2023) 15 SCC 488 has observed that the
stage of investigation or case is not relevant
for quashing the same in exercise of
inherent
power
u/s
528
of
BNSS
(corresponding Section 482 Cr.P.C.), if
such proceedings are manifestly frivolous
or vexatious or instituted with an ulterior
motive
for
wreaking
vengeance.
Sri
Shishodia lastly submitted that FIR as well
as consequential proceedings, can be
quashed either in exercise of inherent
power u/s 528 of BNSS or in extraordinary
power under Article 226 of the Constitution
of India where the conditions as laid down
by the Apex Court in the cases of Bhajan
Lal (supra) and R.P. Kapur Vs. State of
Punjab, reported in A.I.R. 1960 SC 866 are
satisfied.

Contention of Amicus Curiae Sri
Raunak Chaturvedi

21. Sri Raunak Chaturvedi, has
submitted that the Full Bench of Ramlal
Yadav (supra) is essentially based on the
Khawaja Nazir Ahmad (supra) ratio.
However, in the Khawaja Nazir Ahmad
(supra), the privy council itself accepted
that if no cognizable offence is made out,
then
police
have no
jurisdiction
to
investigate the matter, and in that case the
court may interfere. It was nowhere said by
the privy council that court cannot interfere
in exercise of power u/s 561-A of Old
Cr.P.C. (corresponding 482 Cr.P.C., 1973)
but it was erroneously presumed by the Full
Bench in the case of Ramlal Yadav
(supra) that the privy council in Khawaja
Nazir Ahmad (supra) has observed that
court cannot interfere during investigation
in exercise of power u/s 482 Cr.P.C. (561-A
of Old Cr.P.C.)

22. It is further submitted by Sri
Raunak Chaturvedi, the Apex Court in the
judgements of Bhajan Lal (supra), T.T.
Antony Vs. State of Kerala and Others
reported in (2001) 6 SCC 181, Janata Dal
Vs.
H.S.
Chowdhary
and
Others
reported in (1992) 4 SCC 305, Neeharika
Infrastructure Private Limited Vs. State
of Maharashtra and Others reported in
(2021) 19 SCC 401, has observed that no
cognizable offence is made out from the
reading of FIR or institution of FIR itself
comes within the categories laid down by
the several judgements, the court can very
well interfere in the exercise of power u/s
482 Cr.P.C. in the investigation or quashing
the FIR.

23. Sri Raunak Chaturvedi, Amicus
Curiae, also submits that the Apex Court, in
the case of Swapan Kumar Guha (supra),
has considered the judgement of the privy
council of Khawaja Nazir Ahmad (supra)
and observed that courts have incorrectly
overlooked the relevant observations of
privy council, wherein privy council
specifically mentioned that where no
cognizable offence is made out, in that case
the court can interfere in the investigation
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
as the police has no power to investigate
the matter.

24. Sri Raunak Chaturvedi, on relying
the judgement of Apex Court in the case of
Kedar Narayan Parida and Others Vs.
State of Orissa And Another reported in
(2009) 9 SCC 538 as well as the judgement
of T.T. Antony (supra) submitted that the
police has no unfettered power, which is
tantamount to divine power to investigate,
but if the police officer transgresses and
circumscribed the limits laid down by the Apex
Court in different judgements, then the court
can interfere in the exercise of its inherent
power
under
Section
528
of
BNSS
(corresponding Section 482 Cr.P.C.) to secure
the ends of justice as well as to prevent the
abuse of process of law.

25. It is submitted by learned amicus
curiae that in view of the subsequent
judgements of the Apex Court regarding
inherent power of High Court u/s 528 of BNSS
(corresponding Section 482 Cr.P.C.), judgement
of Full Bench in the case of Ramlal Yadav
(supra) has been impliedly overruled and in
such cases, deviation from the principle of stare
decisis is permissible so far as the ratio of Full
Bench of Ramlal Yadav (supra) is concerned.

26. It is also submitted by Amicus Curiae
that the Apex Court in the case of State of
Punjab Vs. Devans Modern Breweries Ltd.
reported in (2004) 11 SCC 26 observed that in
view of maxim "CESSANTE RATIONE
CESSAT IPSA LEX" (when the reason for the
law ceases, the law itself ceases), although the
case has neither been reversed nor overruled, it
may cease to law owing to changed condition
and changed law.

27. Sri Raunak Chaturvedi, Amicus
Curiae, also submits that the Full Bench
judgement of Ramlal Yadav (supra) was
considered in the case of Rama Shankar
Pandey and Ors. Vs. U.P. Police Station
Officer in Criminal Misc. Application
No.2310 of 1994 wherein the Single Bench
of this court has observed that in view of
the subsequent judgements of the Apex
Court, the decision in Ramlal Yadav
(supra), is inconsistent to the decisions of
the Supreme Court so far as the power of
interference of court in the exercise of its
inherent power is concerned. It was further
observed by the learned Single Judge that
the Full Bench judgement of Ramlal
Yadav (supra) is no longer a good law in
view of the subsequent judgement of the
Apex Court. It is further submitted that the
judgement of Rama Shankar Pandey
(supra) referred to the Larger Bench in
Bhagvat Din Vs. State of U.P. and Others
in Criminal Misc. Application No.193 of
1995.

28. The Division Bench, on receiving
the reference though, observed that the
view taken in Rama Shankar Pandey
(supra) is not correct, but the Division
Bench, while deciding the reference in
Bhagvat Din (supra) case failed to
consider the judgement of Apex Court in
T.T. Antony (supra) where the Apex Court
after considering the judgement of privy
council in the case of Khawaja Nazir
Ahmad (supra) has observed that in
exercise of inherent power u/s 482 Cr.P.C.,
court can interdict the investigation to
prevent the abuse of process of court or to
otherwise secure the ends of justice. It is
further submitted by learned Amicus Curiae
that Apex Court in the case of Ramawatar
Vs. State of Madhya Pradesh reported in
(2022) 13 SCC 635 has observed that like
inherent power vested in the Supreme
Court under Article 142 of the Constitution
of India, the High Court can also, in
exercise of its power u/s 482 Cr.P.C. can
5 All. Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
1285
quash the proceeding to do complete
justice. Therefore, power u/s 482 Cr.P.C. is
akin to the inherent power vested in the
Supreme Court under Article 142 of the
Constitution of India.

Analysis

29. After hearing the submission of
learned counsel for the parties, the sole
question which arises for determination is
whether the law laid down by the Full
Bench of this court in Ramlal Yadav
(supra) regarding non-maintainability of
application
u/s
528
of
BNSS
(corresponding Section 482 Cr.P.C.) for
quashing the FIR as well as subsequent
investigation is still good law despite
observation of Apex Court in several
judgements like Bhajan Lal (supra),
Gulam
Mustafa
(supra),
Abhishek
(supra), T.T. Antony (supra), Neeharika
Infrastructure
(supra),
Imran
Pratapgadhi (supra).

30. Before proceeding further, it
would be appropriate to refer to Section
528 of BNSS (corresponding Section 482
Cr.P.C.) and same is quoted as under:

"528. Saving of inherent powers
of High Court.

Nothing in this Sanhita shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Sanhita, or to prevent
abuse of the process of any Court or
otherwise to secure the ends of justice."

31. From the perusal of Section 528
BNSS, it is clear that the High Court can
use inherent power u/s 528 BNSS for the
following three purposes :

(i) to give effect to any order
under this code;

(ii) to prevent abuse of process of
any court;

(iii) to secure the ends of justice.

32. The first information report
regarding the commission of the cognizable
offence is registered u/s 154 Cr.P.C.
(corresponding to Section 173 BNSS).
When it is found that FIR discloses the
commission of cognizable offence then the
police proceeds to investigate the case but
it is the mandate of Section 155(2) Cr.P.C.
that if the FIR does not disclose a
cognizable offence, then the police will not
investigate the case without the order of the
Magistrate, and in case police proceed to
investigate the non-cognizable offence,
then his action would be illegal. Therefore,
it is the order of the Cr.P.C. not to
investigate the offences which are noncognizable without the permission of the
Magistrate but in case police still proceeds
then court can exercise its power u/s 482
Cr.P.C. to give effect to this order/mandate
of Cr.P.C. mentioned in Section 155(2)
Cr.P.C. Similarly, power u/s 482 Cr.P.C.
also gives wide power to High Court to
secure the ends of justice, though the words
"secure the ends of justice" has not been
defined in Cr.P.C. but in number of
judgements it has been observed that
'secure the ends of justice' means to prevent
ends of justice on the part of the police
authorities or court which is against the
law.

33. The Full Bench judgement of
Ramlal
Yadav
(supra)
observed
in
paragraph
no.22
that
even
if
the
investigation is conducted by the police
officer with malafide then High Court
cannot quash the investigation in exercise
of its power u/s 582 BNSS (corresponding
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 482 Cr.P.C.) but can do so in
exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of
India. While deciding this case, the Full
Bench of this court in Ramlal Yadav
(supra) heavily relied upon the judgement
of privy council in the case of Khawaja
Nazir Ahmad (supra) and also observed
that the Apex Court subsequently approved
the above judgement of Khawaja Nazir
Ahmad (supra) in the case of State of
West Bengal Vs. S.N. Basak reported in
AIR 1963 SC 447, S.N. Sharma (supra),
Hazari Lal Gupta Vs. Rameshwar
Prasad reported in AIR 1972 SC 484,
Jehan Singh Vs. Delhi Administration
reported in 1974 SC 1146, Kurukshetra
University & Another Vs. State of
Haryana & Another reported in AIR 1977
SC 2229, State of West Bengal And
Others Vs. Sampat Lal And Others
reported in (1985) 1 SCC 317, sSwapan
Kumar Guha (supra) and R.P. Kapur.
(supra). Paragraph nos.4, 14, 16, 17, 18,
19, 20, 22 and 26 of Ramlal Yadav's case
(supra) are being quoted as under :

"4. The power of the police to
investigate a cognizable offence without
any interference by this Court in the
exercise of its inherent powers has been
considered in a number of decisions of the
Privy Council and the Supreme Court. In
the
case
of Emperor v. Khwaja
Nazir
Ahmad AIR 1945 P.C. 18, it was held:

"just as it is essential that every
one accused of a crime should have free
access to a court of justice so that he may
be duly acquitted if found not guilty of the
offence with which he is charged, so it is of
the utmost importance that the judiciary
should not interfere with the police in
matters which are within their providence
and into which the law imposes upon them
the duty of enquiry. In India as has been
shown there is a statutory right on the part
of
the
police
to
investigate
the
circumstances of an alleged cognizable
crime without requiring any authority from
the judicial authorities, and it would, as
their Lordships think, be an unfortunate
result if it should be held possible to
interfere with those statutory rights by an
excercise of the inherent jurisdiction of the
court. The functions of the judiciary and
the
police
are
complementary
not
overlaping
and
the
combination
of
individual liberty with a due observance of
law and order is only to be obtained by
leaving each to exercise its own function,
always, of course, subject to the right of the
court to intervene in an appropriate case
when moved under section 491, Criminal
P.C., to give directions in the nature of
habeas corpus. In such a case as the
present, however, the court's functions
begin when a charge is preferred before it
and not until then. It has sometimes been
thought that section 561-A has given
increased powers to the court which it did
not possess before that section was enacted.
But this is not so. The section gives no new
powers, it only provides that those which
the court already inherently possess shall
be preserved and is inserted, as their
Lordships
think,
lest
it
should
be
considered that the only powers possessed
by the court are those expressly conferred
by the Criminal Procedure Code, and that
no inherent power has survived the passing
of that Act. No doubt, if no cognizable
offence is disclosed, and still more if no
offence of any kind is disclosed, the police
would have no authority to undertake an
investigation.'

14. It is thus settled law that the
power of the police to investigate into a
report which discloses the commission of a
cognizable offence is unfettered and cannot
be interfered with by this Court in exercise
5 All. Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
1287
of its inherent powers under Section 482
Cr. P C.

16. It is noteworthy that in the
case of Emperor v. Khwaja Nazir Ahmad
(supra) although it was held:-

"No doubt if no cognizable
offence is disclosed, and still more if no
offence of any kind is disclosed the police
would have.

"No doubt if no cognizable
offence is disclosed, and still more if no
offence of any kind is disclosed the police
would have no authority to undertake an
investigation."

17. It was not held therein that if
no offence is disclosed the investigation
can be quashed by the High Court in the
exercise of its inherent powers under
Section 561-A Cr. P.C. 1898 which
corresponds to Section 482 Cr. P.C. 1973.
On the other hand, it was held therein;

"The functions of the judiciary
and the police are complementary not
overlaping and the combination of law and
order is only to be obtained by leaving each
to exercise its own function, always of
course subject to the right of the court to
intervence in an appropriate case when
moved under S. 491, Criminal P.C., to give
directions in the nature of habeas corpus."

18. Which goes to show that if the
police undertook an investigation when no
offence of any kind was disclosed in the
first information report the only remedy
that was avilable was under Section 491-A
Crl. P.C. 1898 in the nature of habeas
corpus. It thus appears that the inherent
powers of this Court to prevent the abuse of
the process of court or otherwise to secure
the ends of justice come into play only after
charge-sheet against an accused is filed in
court and not till then even in cases where
the police wrongly investigate into a report
which does not disclose the commission of
any offence. It is significant to note that in
the case of State West of Bengal v. Swapan
Kumar Guha (AIR 1982 SC 949) the writ
petition
under
Article
226
of
the
Constitution filed by the Firm and its
partners for quashing an investigation
commenced against the Firm was allowed
by the Calcutta High Court and a writ of
mandamus was issued directing the State
Government and its concerned officers to
forthwith withdraw and recall the first
information report and all proceedings
taken on the basis thereof and the appeal
filed by the State of West Bengal against the
aforesaid decision was dismissed by the
Supreme Court and it was held:

19. The Privy Council qualified
its statement by saying;

"No doubt, if no cognizable
offence is disclosed, and still more if no
offence of any kind is disclosed, the police
would have no authority to undertake an
investigation."

"If
anything,
therefore,
the
judgment shows that an investigation can
be quashed if no cognizable offence is
disclosed by the F.I.R. It shall also have
been
noticed,
which
is
sometimes
overlooked, that the Privy Council took
care to qualify its statement of the law by
saying that the judiciary should not
interfere with the police in matters which
are within their province. It is surely not
within the province of the police to
investigate into a report which does not
disclose the commission of a cognizable
offence and the Code does not impose upon
them the duty of inquiry in such cases.

The position which emerges from
these decisions and the other decisions,
which are discussed by Brother A.N. Sen is
that the condition precedent to the
commencement
of
investigation
under
Section 157 of the Code is that the F.I.R.
must
disclose,
prima
facie,
that
a
cognizable offence has been committed. It
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
is wrong to suppose that the police have an
unfettered
discretion
to
commence
investigation under section 157 of the
Code. Their right of inquiry is conditioned
by the existence of reason to suspect the
commission of a cognizable offence and
they cannot, reasonably, have reason so to
suspect unless the F.I.R., prima facie,
discloses the commission of such offence. If
that condition is satisfied, the investigation
must go on and the rule in Khwaja Nazir
Ahmad will apply. The Court has then no
power to stop the investigation, for to do so
would be to trench upon the lawful power
of the police to investigate into cognizable
offences. On the other hand, if the F.I.R.
does not disclose the commission of a
cognizable offence, the court would be
justified in quashing the investigation on
the basis of the information as laid down or
received."

20. Thus if the first information
report does not disclose the commission of
an offence the investigation on the basis of
such a report is liable to be quashed under
Article 226 of the Constitution and not in
the exercise of the inherent powers of the
High Court under Section 482 Cr.P.C. It
may be mentioned that Section 491 Cr.P.C.,
1898 has been repealed by the Code of
Criminal Procedure, 1973.

22. It is thus clear that if the
power of investigation is exercised by a
police officer mala fide the High Court
cannot quash the investigation in the
exercise of its inherent powers under
Section 482 Cr.P.C. but can do so under
Article 226 of the Constitution.

26. We are, however, clearly of
the opinion that the power of the High
Court under Section 482 Cr.P.C. to quash a
first information report or a complaint
referred to above is with reference to
proceeding in court after the filing of a
charge-sheet or a complaint and not to
investigation prior to the filing of the
charge-sheet in court."

34. From a perusal of the Full Bench
judgement of Ramlal Yadav (supra), it is
clear that it has mainly relied upon the
observations of the judgement of the privy
council
in
Khawaja
Nazir
Ahmad
(supra), wherein it is observed that police
have statutory right to investigate and court
cannot interfere therein, in exercise of its
inherent power, even if no cognizable
offence is made out from perusal of FIR
because in that case High Court can
interfere in the investigation in exercise of
power u/s 491 of Cr.P.C., 1868 which gives
power to High Court to issue direction in
the nature of habeas corpus.

35. In the case of Khawaja Nazir
Ahmad (supra), there was an issue of
whether the High Court could quash the
proceeding consequential to FIR in the
exercise of his power u/s 561-A of Cr.P.C.
1868 (corresponding Section 482 Cr.P.C.,
1973).