# Shikher Bhandari v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-03
- **Case number:** Application U/S 482 Cr.P.C. No. 44382 of 2019
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shikher-bhandari-v-state-of-u-p-ors-45162
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Prayer for
quashing F.I.R- Maintainability - Issue
regarding the maintainability of quashing of
FIR in exercise of powers under Section 482
Cr.P.C. by this Court was referred and decided
by a Full Bench of this Court in the case of Ram
Lal Yadav Vs. State of U.P. wherein it has been
categorically held that unless there is a matter
pending before the subordinate court, no
2 All. Shikher Bhandari Vs. State of U.P. & Ors.
1157
application under Section 482 Cr.P.C. can be
entertained by the High Court. An application
under Section 482 Cr.P.C. in the High Court for
quashing of the first information report of the
investigation is not maintainable in the High
Court unless the charge-sheet has been filed
and the Court had issued process on the basis
of the charge-sheet.
The inherent power of the High Court, u/s 482
Cr.Pc, can be exercised only when the case is
pending in some court and not before that and
an application u/s 482 Cr.Pc will not be
maintainable at that stage. Against an F.I.R or
during the pendency of investigation only the
Writ jurisdiction of the High Court under Article
226 of the Constitution of India can be invoked
and
that
too
only
under
exceptional
circumstances.
Practice and Procedure- Binding Precedent-
When certain question is neither raised nor
argued that discussion by the Court even after
pondering over the issue in depth would not be
a binding precedent.The Apex Court did not
categorically say anywhere that both the
options were open in both types of cases, i.e.,
where investigation is pending and where the
proceedings are pending in Criminal Courts.
Passing observations of the Supreme Court on
a question neither in issue and nor decided
would not become a binding precedent and
would be Obiter Dicta.

Criminal application rejected.

Case Law discussed-

## Text

1156 INDIAN LAW REPORTS ALLAHABAD SERIES
of such person or that there is some
material
against
that
person,
the
discretion Under Section 319 Code of
Criminal Procedure would be used by the
court." (Emphasis added)

12. The exposition of law, discussed
above, clearly shows that mere taking of
name is not sufficient to exercise power
under Section 319 Cr.P.C. but there must
be something more i.e. evidence must be
such
wherefrom
on
judicious
consideration, Court must be satisfied that
such person can be tried alongwith
accused already facing trial.

13. As I have already discussed, from
the material available Trial Court has
referred to reliable evidence, the fact that
information was actually conveyed to the
then Tehsildar Sadar Lakhimpur Khiri i.e.
Sri
D.N.Bajpai
and
evidence
was
sufficient to show that he did not exercise
due care to reach hospital immediately and
without wasting time that too in a serious
matter where a married woman, sustained
burn injuries, was admitted in hospital and
considering her condition, doctor had
already sent memo for recording her
statement by Magistrate. Thus, it cannot be
said that Trial Court, in the case in hand,
has exercised jurisdiction casually or in a
cavalier
manner
and
there
is
no
appropriate and reasonable evidence to
summon applicant.

14. In view thereof, objection in
challenge to summoning order, raised by
learned Senior Counsel that there is no
evidence whatsoever, has no force and
rejected.

15. There is another aspect of the
matter. Applicant's name is Rajendra Nath
Bajpai, but, I find from record that it is
D.N.Bajpai who was the then Tehsildar,
Sadar and has been summoned by means
of impugned order dated 03.9.2004 passed
by Additional Sessions Judge/Fast Track
Court-2, Lakhimpur Khiri. Certified copy
of impugned order also mention the name
of the then Tehsildar Sadar Lakhimpur
Khiri as 'D.N.Bajpai'. I do not find any
order of summoning passed on 03.9.2004
to Rajendra Nath Bajpai, who has filed this
application. Therefore, this application, at
the instance of Rajendra Nath Bajpai, in
my
view,
even
otherwise,
is
not
sustainable.

16. Application is accordingly
rejected.
----------
(2020)02ILR A1156

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.

Application U/S 482 Cr.P.C. No. 44382 of 2019

Shikher Bhandari ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Arvind Srivastava

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Prayer for
quashing F.I.R- Maintainability - Issue
regarding the maintainability of quashing of
FIR in exercise of powers under Section 482
Cr.P.C. by this Court was referred and decided
by a Full Bench of this Court in the case of Ram
Lal Yadav Vs. State of U.P. wherein it has been
categorically held that unless there is a matter
pending before the subordinate court, no
2 All. Shikher Bhandari Vs. State of U.P. & Ors.
1157
application under Section 482 Cr.P.C. can be
entertained by the High Court. An application
under Section 482 Cr.P.C. in the High Court for
quashing of the first information report of the
investigation is not maintainable in the High
Court unless the charge-sheet has been filed
and the Court had issued process on the basis
of the charge-sheet.
The inherent power of the High Court, u/s 482
Cr.Pc, can be exercised only when the case is
pending in some court and not before that and
an application u/s 482 Cr.Pc will not be
maintainable at that stage. Against an F.I.R or
during the pendency of investigation only the
Writ jurisdiction of the High Court under Article
226 of the Constitution of India can be invoked
and
that
too
only
under
exceptional
circumstances.
Practice and Procedure- Binding Precedent-
When certain question is neither raised nor
argued that discussion by the Court even after
pondering over the issue in depth would not be
a binding precedent.The Apex Court did not
categorically say anywhere that both the
options were open in both types of cases, i.e.,
where investigation is pending and where the
proceedings are pending in Criminal Courts.
Passing observations of the Supreme Court on
a question neither in issue and nor decided
would not become a binding precedent and
would be Obiter Dicta.

Criminal application rejected.

Case Law discussed-

1. Asian Resurfacing of Road Agency Pvt. Ltd.
& anr. Vs. C.B.I, (2018) 16 SCC 299

2. Ajay Mitra Vs. St. of M.P. & ors., (2003) 3
SCC 11

3. St. of Telangana Vs. Habi Abdullah Jeelani &
ors., (2017) 2 SCC 779

4. Vaijnath Kondiba Khandke Vs. St. of Maha. &
anr., AIR (2018) SC 2659

5. Naman Singh @ Naman Pratap Singh & anr
Vs. St. of U.P. & ors., (2019) 2 SCC 344

6. Ram Lal Yadav Vs. St. of U.P., (1989) Cr.L.J
1013 ( Alld. FB) ( Relied)
7. Janta Dal Vs. H.S. Chauhan (1992) 4 SCC
305 (Relied)

8. Emperor Vs. Khwaza Nazir Ahmad, AIR,
(1945) PC 18 ( Relied)

9. S. N. Sharma Vs. Vipin Kumar Tiwari, (1970)
1 SCC 5653 ( Relied)

10. St. of Haryana Vs. C. S. Bhajanlal, (1992)
Suppl (1) SCC 335

11. A. S. Bindra Vs. Sen. Super. of Police,
Dehradun & ors., (1998) Cr.L.J 3845 ( Relied)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the applicant and Sri
Irshad Hussain, learned AGA for the State
and perused the record.

2. This application under Section 482
Cr.P.C. has been filed for quashing the
impugned FIR dated 04.09.2019 registered
as Case Crime No.0309 of 2019, under
Sections 468, 471, 406, 506, 467, 420, 419
I.P.C., Police Station Kotwali, District
Azamgarh.

3. Learned AGA raised preliminary
objection regarding the maintainability of
the prayer made in the present 482 Cr.P.C.
Application by the applicant and has stated
that as the applicant has prayed for
quashing of the FIR in the present 482
Cr.P.C. Application, the same is not
maintainable as the petitioner has a
remedy of filing a writ petition under
Article 226 of the Constitution of India for
the aforesaid prayer.

4. Learned counsel for the applicant
in reply to the preliminary objection raised
by the learned AGA has submitted that
through out the country a petition
challenging a first information report and
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
the
proceedings
initiated
by
it
is
maintainable and can be entertained by
this Court in 482 Cr.P.C. Application. He
submitted that the scope of Section 482
Cr.P.C. is not confined to any proceedings
of the Court only but it is also to secure the
ends of justice and to protect the gross
abuse of process of law. The power of
High Court to exercise its jurisdiction is
not limited to any provision of alternative
forum and in this regard he has placed
reliance of the Judgment of the Apex
Court in the case of Asian Resurfacing of
Road Agency Private Ltd. and another
Vs. Central Bureau of Investigation,
2018 (16) SCC 299 at page 332, the Apex
Court observed in paras 52 and 54 which
are as under:

"52. The question as to whether the
inherent power of a High Court would be
available to stay a trial under the Act
necessarily leads us to an inquiry as to whether
such inherent power sounds in constitutional,
as opposed to statutory law. First and foremost,
it must be appreciated that the High Courts are
established by the Constitution and are courts
of record which will have all powers of such
courts, including the power to punish contempt
of themselves (See Article 215). The High
Court, being a superior court of record, is
entitled to consider questions regarding its own
jurisdiction when raised before it. In an
instructive passage by a Constitution Bench of
this Court in In re Special Reference 1 of 1964,
(1965) 1 SCR 413 at 499, Gajendragadkar,
C.J. held:

"Besides, in the case of a superior
Court of Record, it is for the court to consider
whether any matter falls within its jurisdiction
or not. Unlike a Court of limited jurisdiction,
the superior Court is entitled to determine for
itself questions about its own jurisdiction.
"Prima facie", says Halsbury, "no matter

is deemed to be beyond the
jurisdiction of a superior court unless it is
expressly shown to be so, while nothing is
within the jurisdiction of an inferior court
unless it is expressly shown on the face of the
proceedings that the particular matter is within
the cognizance of the particular court"
[Halsbury's Law of England, Vol. 9, p. 349].

54. It is thus clear that the
inherent power of a Court set up by the
Constitution is a power that inheres in
such Court because it is a superior court of
record, and not because it is conferred by
the Code of Criminal Procedure. This is a
power vested by the Constitution itself,
inter alia, under Article 215 as aforestated.
Also, as such High Courts have the power,
nay, the duty to protect the fundamental
rights of citizens under Article 226 of the
Constitution, the inherent power to do
justice in cases involving the liberty of the
citizen would also sound in Article 21 of
the
Constitution.
This
being
the
constitutional position, it is clear that
Section 19(3)(c) cannot be read as a ban
on the maintainability of a petition filed
before the High Court under Section 482
of the Code of Criminal Procedure, the
non-obstante clause in Section 19(3)
applying only to the Code of Criminal
Procedure. The judgment of this Court in
Satya Narayan Sharma v. State of
Rajasthan,
(2001)
8
SCC
607
at
paragraphs 14 and 15 does not, therefore,
lay down the correct position in law.
Equally, in paragraph 17 of the said
judgment, despite the clarification that
proceedings
can
be
"adapted"
in
appropriate cases, the Court went on to
hold that there is a blanket ban of stay of
trials and that, therefore, Section 482, even
as adapted, cannot be used for the
aforesaid purpose. This again is contrary
to the position in law as laid down
2 All. Shikher Bhandari Vs. State of U.P. & Ors.
1159
hereinabove. This case, therefore, stands
overruled. "

5. He further relied upon another
case of the Apex Court wherein the Apex
Court entertained a petition challenging a
first information report under Section 482
Cr.P.C. and has drawn attention in the case
of Ajay Mitra Vs. State of M.P. and
others, (2003) 3 SCC 11. He also has
relied upon a judgment of the Apex Court
reported in the case of State of Telangana
Vs. Habi Abdullah Jeelani and others,
(2017) 2 SCC 779 wherein the Apex
Court has observed in paras 11 and 13,
which are as under:-

"11. Once an FIR is registered,
the accused persons can always approach
the High Court under Section 482 CrPC or
under Article 226 of the Constitution for
quashing of the FIR. In Bhajan Lal (supra)
the two-Judge Bench after referring to
Hazari Lal Gupta v. Rameshwar Prasad[7],
Jehan Singh v. Delhi Administration[8],
Amar Nath v. State of Haryana[9],
Kurukshetra
University
v.
State
of
Haryana[10], State of Bihar v. J.A.C.
Saldanha[11], State of West Bengal v.
Swapan Kumar Guha[12], Smt. Nagawwa
v. Veeranna Shivalingappa Konjalgi[13],
Madhavrao
Jiwajirao
Scindia
v.
Sambhajirao
Chandrojirao
Angre[14],
State of Bihar v. Murad Ali Khan[15] and
some other authorities that had dealt with
the contours of exercise of inherent powers
of the High Court, thought it appropriate to
mention certain category of cases by way
of illustration wherein the extraordinary
power
under
Article
226
of
the
Constitution or inherent power under
Section 482 CrPC could be exercised
either to prevent abuse of the process of
any court or otherwise to secure the ends
of justice. The Court also observed that it
may not be possible to lay down any
precise, clearly defined and sufficiently
channelized and inflexible guidelines or
rigid formulae and to give an exhaustive
list of myriad cases wherein such power
should be exercised.

13. There can be no dispute over
the proposition that inherent power in a
matter of quashment of FIR has to be
exercised sparingly and with caution and
when and only when such exercise is
justified by the test specifically laid down
in the provision itself. There is no denial
of the fact that the power under Section
482 CrPC is very wide but it needs no
special emphasis to state that conferment
of wide power requires the court to be
more cautious. It casts an onerous and
more diligent duty on the Court."

6. He next has placed reliance of
judgment of the Apex Court in the case of
Vaijnath Kondiba Khandke Vs. State of
Maharashtra and another, AIR 2018
Supreme Court page 2659 wherein it has
been held in para 4, which is as under:

"4. That the appellant as well as
said Vidya Ghorpade filed Criminal
Application Nos.4724 of 2017 and 5174 of
2017 respectively under Section 482 of
Cr.P.C. seeking quashing of the aforesaid
FIR. It was submitted that the allegations
in the FIR were absurd and inherently
improbable and did not make out any case
against the applicants. Around this time,
the applications preferred by the applicants
for anticipatory bail were accepted with
certain conditions.

The applications preferred under
Section 482 Cr.P.C. were thereafter taken
up for hearing. The High Court accepted
the plea made by Vidya Ghorpade and
quashed the proceedings against her.
However, Criminal Application No.4724
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2017 preferred by the appellant was
dismissed by the High Court vide its
judgment and order dated 23.01.2018
which is presently under appeal. It was
observed: "The facts herein indicate that,
there was no direct abetment and the
applicants cannot have any intention that
the deceased should commit suicide. Even
when the accused persons have no such
intention, if they create situation causing
tremendous mental tension so as to drive
the person to commit suicide, they can be
said to be instigating the accused to
commit suicide....."

7. He also cited and relied upon the
judgment of the Apex Court in the case of
Naman Singh alias Naman Pratap Singh
and another Vs. State of U.P. and others,
(2019) 2 SCC 344, wherein the Apex Court
has observed in para 9, which is as under:-

"9. In view of the scheme of the
Code as discussed, we have purposely
refrained from going into the merits of the case
so as not to prejudice either parties and also
keeping in mind the nature of the jurisdiction
under Section 482 of the Code. Any
application by respondent no.4 hitherto under
the Code will therefore have to be considered
by the appropriate authority or forum in
accordance with law. For the reasons
discussed, the impugned order is held to be
unsustainable and is set aside. The First
Information Report therefore also stands
quashed for the reasons discussed, but with
liberty as aforesaid."

8. Heard learned counsel for the
petitioner and examined the rival submissions
on the aforesaid issue and further perused the
record.

9. The aforesaid issue regarding the
maintainability of a quashing of FIR in
exercise of powers under Section 482 Cr.P.C.
by this Court was referred and decided by a
Full Bench of this Court in the case of Ram
Lal Yadav Vs. State of U.P., reported in
1989 Criminal Law Journal page 1013
wherein it has been categorically held that
unless there is a matter pending before the
subordinate court, no application under Section
482 Cr.P.C. can be entertained by the High
Court. In other words it means that till the
stage of investigation of a criminal case, and
thereafter till the filing of the charge-sheet and
taking cognizance offence by the Court, no
application can be made in the High Court for
quashing of the first information report or
investigation under Section 482 Cr.P.C.,
however, in very exceptional cases the writ
jurisdiction of the High Court under Article
226 of the Constitution of India can be invoked
either for quashing of the first information
report or for staying the investigation. The Full
Bench while considering the aforesaid point
has further referred to the cases of the Apex
Court which have been delivered after the
judgment of the Full Bench in Ram Lal Yadav
case (1989) Criminal Law Journal 1013
(supra) none of the Supreme Court Cases
considered the question whether jurisdiction of
the High Court could be invoked under
Section 482 Cr.P.C. while a criminal case
was still being investigated. Similarly, the
case laws which have been cited by
learned counsel for the petitioner referred
above also not deciding this point in any of
the judgments and any observation that
either in its jurisdiction under Article 226
of the Constitution of India or under
Section 482 Cr.P.C. in a suitable case the
High Court could grant relief for just an
observation of the Supreme Court to
indicate that the High Court could exercise
its inherent power under Section 482
Cr.P.C. or extra jurisdiction under Article
226 of the Constitution of India to
interfere in a suitable matter pending
2 All. Shikher Bhandari Vs. State of U.P. & Ors.
1161
investigation. This observation only meant
that the power under Section 482 Cr.P.C.
could be exercised in some proceedings
arising out of a complaint etc. when the
matter is pending in some Court and the
jurisdiction under Article 226 of the
Constitution of India could be exercised
when the matter had till then not reached
the Court but was still under investigation
by a Police Officer. The judgment and
observations of the Supreme Court are not
at all contrary to the judgment of the Full
Bench in the case of Ram Lal Yadav
(supra) and it cannot be said that the said
observation of the Supreme Court permit
any High Court to exercise its power under
Section 482 Cr.P.C. when the matter still
investigation. The Supreme Court as a
matter of fact has quoted Ram Lal Yadav's
judgment of the Full Bench of the
Allahabad High Court in the case of Janta
Dal Vs. H.S. Chauhan (1992) 4 SCC
305. This paragraph in the aforesaid case
has been quoted only to indicate that the
similar view which the Supreme Court was
taking had already been taken by the High
Court in the said Full Court. As such the
case of Ram Lal Yadav's case (supra) has
been given a seal of approval by the
aforesaid judgment of the Supreme Court.

10. Thus, the conclusion is inevitable
that an application under Section 482 Cr.P.C.
in the High Court for quashing of the first
information report of the investigation is not
maintainable in the High Court unless the
charge-sheet has been filed and the Court had
issued process on the basis of the charge-sheet.
Up to that stage only in a suitable case a
petition under Article 226 of the Constitution
of India alone can be filed in the High Court.

11. A similar view has been taken in a
privy counsels' decision in Emperor Vs.
Khwaza Nazir Ahmad, AIR, 1945 PC 18 in
the said decision the Privy Council has held
that the police has a statutory right under
Sections 154 and 156 Cr.P.C. to investigate the
offense, that the High Court cannot interfere in
exercise of inherent power under Section 561A (now Section 482 Cr.P.C.) and that
interference can be made only when the
charges preferred before the Court and not
before. It was observed that there is statutory
right on the part of the police to investigate the
circumstances of alleged cognizable crime
without requiring any authority from the
judicial authorities and it would be an
unfortunate result if it should be held possible
to interfere with those statutory rights by an
exercise of the inherent jurisdiction of the
Court under Section 561-A old Cr.P.C. (now
Section 482 Cr.P.C.).

12. The decision of the Privy Council
in Emperor Vs. Khwaza Nazir Ahmad
(supra) was followed by the Apex Court in
the case of S. N. Sharma Vs. Vipin
Kumar Tiwari, (1970) 1 SCC 5653
wherein it was held that though the Court
of Criminal Procedure gives to the police
unfettered power to investigate all cases
where the suspect that the cognizable
offense has been committed, in appropriate
cases and aggrieved person can always
seek a remedy by invoking the power of
the High Court under Article 226 of the
Constitution of India under which if the
High Court could be convinced that the
power of investigation has been exercised
by the Police Officer, mala fide, the High
Court can always issue a writ of
mandamus restraining the police officer
from misusing his legal powers. In the
case of State of Haryana Vs. C. S.
Bhajanlal, 1992 Suppl (1) SCC 335 in
this case the High Court of Punjab and
Haryana had quashed the entire criminal
proceedings inclusive of registration of the
FIR on the basis of the complaint preferred
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
by
Mr.
Dharampal
making
certain
allegations against Chaudhary Bhajanlal.
The matter which were issued in Full
Bench case of Ram Lal Yadav (supra)
was not an issue before the Apex Court in
Chaudhary Bhajanlal's case (supra)
which was said in para 84 of the judgment
at page 625:

"84. The nagging question that
comes up for examination more often than
not is under what circumstances and in
what categories of cases, a criminal
proceeding can be quashed either in
exercise of the extraordinary powers of the
High Court under Article 226 of the
Constitution of India or in the exercise of
inherent powers of the High Court under
section 482 of the Code....."

13. In other words, when certain
question is neither raised nor argued that
discussion by the Court even after
pondering over the issue in depth would
not
be
a
binding
precedent.
The
observations of the Apex Court in the case
of State of Haryana Vs. Chaudhary
Bhajanlal
(supra)
have
been
misinterpreted. Thus, also the case laws of
the Apex Court relied upon by the learned
counsel for the applicant cannot be of any
help to the applicant as the Apex Court did
not categorically say anywhere that both
the options were open in both types of
cases, i.e., where investigation is pending
and where the proceedings are pending in
Criminal Courts.

14. Thus, the submission advanced
by learned counsel for the applicant
regarding the preliminary objection raised
by
learned
AGA
regarding
the
maintainability of the present 482 Cr.P.C.
Application for quashing of the FIR is not
at all acceptable in view of the judgment
of the Full Bench decision of this Court in
the case of Ram Lal Yadav (supra) which
has been followed by a Division Bench in
the case of A. S. Bindra Vs. Senior
Superintendent of Police, Dehradun and
others, reported in 1998 Criminal Law
Journal 3845 in which again an identical
issue was raised and decided by following
the judgment in the case of Ram Lal
Yadav's case (supra).

15. Thus, the present 482 Cr.P.C.
Application
is
not
maintainable,
accordingly, the same is dismissed at this
ground alone.
----------
(2020)02ILR A1162

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 218 of 2020

C/M, Samaj Kalyan Parishad,Ghaziabad &
Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sunil Kumar Gupta

Counsel for the Respondents:
C.S.C.

A. Appointment - U.P. Education Service
Selection
Commission
Act,
2019
-
provides
for
establishment
of
an
Education Service Selection Commission
in the State for selection of the teachers
and non teaching employees - steps are
being taken by the State government for
enforcement the Act, 2019 and UP
recognized Basic Schools (Junior High