# Smt. Madhu Gupta & Ors v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Application U/S 482 No. 23342 of 2011
- **Bench:** Rajendra Kumar - Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhu-gupta-ors-v-state-of-u-p-anr-47758
- **Pages:** 15

## Headnote

Govt.
Advocate,
Sri
Rajesh
Kumar
Chitragupt, Sri Sanjai Kumar Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468 & 471 - Will is
always subject to proof - If it is not
proved, it becomes of no importance - a
civil dispute should not be given the
colour of criminal offence - if there is no
legal evidence adduced in support of the
case or evidence adduced clearly or
manifestly
fails
to
charge,
then
proceedings of such cases can be quashed
while exercising the power under Section
482 Cr.P.C. - Any effort to settle civil
disputes and claims, which do not involve
any criminal offence, by applying pressure
though criminal prosecution should be
deprecated and discouraged. (Para
-
9,23,27,28 )

Originally property recorded in the name of
father of opposite part no. 2 - registered Will
deed in favour of applicant no.- 2 and Others -
mutation order in favour of applicant no.- 2 -
long litigation between Informant and applicant
no. 2 - mutation made by Tehsildar in favour
of applicant No.3 - objection made by Informant
- dispute mainly of civil nature - registered saledeed in favour of applicant-no. -1 executed by
applicant no.3 recorded tenure holder of the
property - Informant moved an application,
under Section 156(3) Cr.P.C. against applicants
- FIR does not disclose any offence against
applicants - no whisper of how and in what
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
563
manner, applicants are involved in any criminal
offence.(Para -3,31,32 )

HELD:-Opposite party no.2 gave colour of
criminal offence to a purely civil dispute. No
evidence that registered Will was forged one .
Only competent civil court having jurisdiction
over the matter could decide the issue whether
the Will in dispute was forged one or not .
Informant wanted to settle his dispute through
criminal proceedings as criminal proceedings
can be very easily initiated and can harass the
applicants too . Allowing prosecution to continue
against the applicants is abuse of process of law
and it should be quashed.(Para -29,32 )

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

List of Cases cited:-

## Text

_Characters 0–39,811 of 47,357. This is a partial read: ask again with offset=39811 for what follows._

562 INDIAN LAW REPORTS ALLAHABAD SERIES
the vehicle in question forthwith, in
accordance with law.

15. Let a copy of this order be transmitted
to the concerned court below for necessary
compliance forthwith.

Order on Criminal Misc. Correction
Application dated 06.09.2022.

Learned counsel for the applicant
prays for and is permitted to make
correction of district in the memo as well as
in the prayer clause of the Application U/S
482 during the course of the day.

Heard
learned
counsel
for
the
applicant as well as learned A.G.A. for the
State.

The instant correction application has
been moved by the applicant with the
prayer to correct the District Chandauli in
place of District Varanasi in the paragraph
nos.2, 10 and 14 of the judgement and
order dated 25.08.2022.

In view of the above, the instant
correction application is allowed.

Accordingly,
the
words
"District
Varanasi" transcribed in paragraph nos.2,
10 and 14 of the judgement and order dated
25.08.2022 be corrected and read as
"District Chandauli".
----------
(2022) 10 ILRA 562
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE RAJENDRA KUMAR - IV, J.

Application U/S 482 No. 23342 of 2011

Smt. Madhu Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri A.K. Updhyaya, Sri Anil Kumar Mishra,
Sri Arun Kumar Tripathi, Sri Mohammad
Mustafa, Sri Vijay Prakash Chaturvedi, Sri
Vinay Kumar Singh Chandel

Counsel for the Opposite Parties:
Govt.
Advocate,
Sri
Rajesh
Kumar
Chitragupt, Sri Sanjai Kumar Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 419, 420, 467, 468 & 471 - Will is
always subject to proof - If it is not
proved, it becomes of no importance - a
civil dispute should not be given the
colour of criminal offence - if there is no
legal evidence adduced in support of the
case or evidence adduced clearly or
manifestly
fails
to
charge,
then
proceedings of such cases can be quashed
while exercising the power under Section
482 Cr.P.C. - Any effort to settle civil
disputes and claims, which do not involve
any criminal offence, by applying pressure
though criminal prosecution should be
deprecated and discouraged. (Para
-
9,23,27,28 )

Originally property recorded in the name of
father of opposite part no. 2 - registered Will
deed in favour of applicant no.- 2 and Others -
mutation order in favour of applicant no.- 2 -
long litigation between Informant and applicant
no. 2 - mutation made by Tehsildar in favour
of applicant No.3 - objection made by Informant
- dispute mainly of civil nature - registered saledeed in favour of applicant-no. -1 executed by
applicant no.3 recorded tenure holder of the
property - Informant moved an application,
under Section 156(3) Cr.P.C. against applicants
- FIR does not disclose any offence against
applicants - no whisper of how and in what
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
563
manner, applicants are involved in any criminal
offence.(Para -3,31,32 )

HELD:-Opposite party no.2 gave colour of
criminal offence to a purely civil dispute. No
evidence that registered Will was forged one .
Only competent civil court having jurisdiction
over the matter could decide the issue whether
the Will in dispute was forged one or not .
Informant wanted to settle his dispute through
criminal proceedings as criminal proceedings
can be very easily initiated and can harass the
applicants too . Allowing prosecution to continue
against the applicants is abuse of process of law
and it should be quashed.(Para -29,32 )

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

List of Cases cited:-
1. Inder Mohan Goswami Vs St. of Uttaranchal,
(2007)12 SCC 1

2. Madhavrao Jiwajirao Scindia & Ors. Vs
Sambhajirao Chadrojirao Angre & ors., (1988) 1
SCC 692

3. R.P. Kapur Vs St. of Punj., AIR 1960 SC 866

4. St. of Haryana & Ors. Vs Bhajan Lal & Ors.,
1992 Supp (1) SCC 335

5. M/s. Neeharika Infrastructure Pvt. Ltd. Vs St.
of Maha. & ors. , AIR 2021 Supreme Court 1918

6. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Guj. & anr., (2017) 9
SCC 641

7. Kapil Agarwal & ors. Vs Sanjay Sharma &
ors., (2021) 5 SCC 524

8. Mohd. Ibrahim Vs St. of Bihar, (2009) 8 SCC
751

9. G. Sagar Suri & anr. Vs St. of U.P. & ors.,
(2000) 2 SCC 636

10. I.O.C. Vs NEPC India Ltd. & ors., (2006) 6
SCC 736

11. M. Subramaniam & anr. Vs S. Janki & anr.,
(2020) 16 SCC 728
(Delivered by Hon'ble Rajendra Kumar -
IV, J.)

1. Heard learned counsel for parties
and perused the materials available on
record.

2. This application under Section 482
Cr.P.C. has been filed by Smt. Madhu
Gupta, Mahesh Chandra Gupta, Dwarika
Prasad Jaiswal, Sanjai Singh and Rajneesh
with the prayer to quash the charge sheet
dated 05.04.2010 and entire criminal
proceedings in Criminal Case No. 3609 of
2010, under Section 419, 420, 467, 468 and
471 IPC, Police Station Siddharth Nagar,
District Siddharth Nagar with the following
prayers : -

"to quash the further proceeding
of criminal case no. 3609 of 2010 under
section- 419, 420, 467, 468, 471 IPC,
Police Station and District Siddharth
Nagar pending before Chief Judicial
Magistrate, Siddharth Nagar and or may
pass such other and further order as this
Hon'ble court may deem fit proper under
the facts and circumstances of the case,
otherwise the applicants shall
suffer
irreparable loss and injury."

3. Brief facts of the case giving rise to
the present application, are as under :-

i.
Informant
moved
an
application, under Section 156(3) Cr.P.C.
against the applicants herein, alleging them
Informant's father Satya Narayan executed
a will-deed in favour of Dwarika, Ayodhya
sons of Balram, Ashish and Alok sons of
Kanhiya Lal on 11.07.1996 in respect of his
movable and immovable property. After the
Will was made, they stopped serving and
caring of Satya Narain, father of Informant,
on which Informant and his wife in view of
564 INDIAN LAW REPORTS ALLAHABAD SERIES
his father's illness etc., started treating his
father with care and medicine, due to
which, his father Satya Narain cancelled
the first Will executed in favour of Dwarika
and others and executed the second Will in
favour of his three sons on 25.07.1997. It is
further alleged in application that Dwarika
Prasad filed an application 156(3) Cr.P.C.
before CJM concerned, which came to be
dismissed. There against, criminal revision
was also filed by him before Sessions
Judge, which was also dismissed on
1.12.2005. Saying his failure Dwarika
made a sale deed dated 19.5.2009 of Plot
No.399 (c) in favour of Madhu Gupta on
the basis of Will, to which he had no right.
When Informant came to know this fact, he
went Police Station to lodge the FIR but no
action was taken in the matter.

ii. Upon the application 156(3)
Cr.P.C. made by the Informant, an FIR was
directed to be lodged, whereupon FIR in
Case Crime No. 285 of 2010 was registered
in Police Station concerned. Investigating
Officer undertook investigation, collected
the evidence and filed charge-sheet in the
matter, which is under challenge in the
present application.

4. Learned counsel for the applicants
submits that property was recorded in the
name of Satya Narain, who had three sons
namely Balram, Kanhaiya and Sriram.
Satya Narain, during his life time, had
executed a registered will-deed in favour of
Ayodhya, Dwarika, Ashish and Alok. As
per allegations, Satya Narain himself,
during his life time, got cancelled earlier
will-deed.

5. Learned counsel next contended
that after the death of Satya Narain, name
of Dwarika Prasad and others, in whose
favour Will was executed, was mutated by
revenue
authorities,
even
after
the
submission of objection of Informant.
Thus, name of Dwarika Prasad and others
got mutated in the revenue record and they
have been recorded tenure holder of the
property. Learned counsel further submits
that applicant No.1 had purchased the land
/ plot No. 399 (c) after giving full
consideration through registered sale deed
and she is a bona fide purchaser. She got
her house constructed over the land and she
is living peacefully in that house. Matter is
of civil nature, cancellation of will-deed is
not pending in any court but Informant
tried to settle his dispute of civil nature by
roping the applicants in criminal case.
Prosecution of applicants in criminal case
is abuse of process of court, which should
not be permitted to continue. Learned
counsel further submits that it appears that
Dwarika Prasad had moved an application
under Section 156(3) Cr.P.C. against the
Informant, prior to this application, thus,
Informant in retaliation thereto filed present
application against the applicants. Learned
counsel for applicants referred the some
judgments in favour of his contentions.

6. Learned AGA opposed the
submissions made by learned counsel for
the applicants but conceded the factual
submissions made and admitted that it is a
case of civil dispute. He could not show the
manner in which offence is committed by
accused-applicants
except
saying
that
applicants are named in the FIR and FIR
was registered on the application of 156(3)
Cr.P.C. and Investigating Officer submitted
charge sheet in the matter. Learned AGA
further submits that constitution of any
offence may be debated at the time framing
charge.

7. It has been mainly stated in the
counter affidavit that Tehsildar illegally
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
565
decided the mutation in favour of applicant
No.3 and other paras of counter affidavit
are
general
in
nature
denying
the
contentions of the applicants' affidavit. In
paragraph 5 of the counter affidavit, it has
been stated that father of Informant Satya
Narain executed another Will deed on
25.2.1997 by canceling the earlier will
dated 11.07.1996 and all movable and
immovable property distributed in his all
three sons including the Opposite Party
No.2.

8. It is also mentioned in the counter
affidavit that unregistered Will deed in favour
of Opposite Party No.2 has also been
challenged
by
applicant
No.3-Dwarika
Prasad but the application filed by Dwarika
Prasad under Section 156(3) Cr.P.C. before
CJM, Siddharth Nagar has also been
dismissed, not finding any offence. Copy of
CJM's order dated 12.05.2005 is annexed as
Annexure No.2 to the counter affidavit.

9. It is admitted fact by the parties that
at the time of alleged sale deed, property was
recorded in the name of Dwarika Prasad,
applicant Madhu Gupta purchased the plot in
question from its recorded owner through
registered sale deed after paying a due
consideration and from the date of sale deed,
she is in possession. Execution of sale deed is
neither in question nor disputed. It is also
admitted fact that applicant No.2 is the
husband of applicant no.1 and applicant nos.
4 and 5 are the marginal witnesses of alleged
sale deed. Will deed in favour of Dwarika
Prsad was not challenged nor it was
cancelled. It is settled law that Will is always
subject to proof. If it is not proved, it
becomes of no importance.

10. In the instant case, the first
information report has been registered under
Sections 419, 420, 467, 468 and 471 IPC. The
allegations leveled in the first information report
are of (1) cheating and (2) forgery. I shall deal
with the Section 420 IPC. Cheating is defined
in Section 415 IPC and is punishable under
Section 420 IPC. Section 415 is set out below:

"415. Cheating. Whoever, by
deceiving any person, fraudulently or
dishonestly induces the person so deceived
to deliver any property to any person, or to
consent that any person shall retain any
property, or intentionally induces the
person so deceived to do or omit to do
anything which he would not do or omit if
he were not so deceived, and which act or
omission causes or is likely to cause
damage or harm to that person in body,
mind, reputation or property, is said to
cheat.

Explanation.
A
dishonest
concealment of facts is a deception within
the meaning of this section.

Section 415 IPC thus requires

1. deception of any person.

2. (a) fraudulently or dishonestly
inducing that person-

(i) to deliver any property to any
person; or

(ii) to consent that any person
shall retain any property; or

(b) intentionally inducing that
person to do or omit to do anything which
he would not do or omit if he were not so
deceived, and which act or omission causes
or is likely to cause damage or harm to that
person in body mind, reputation or
property.
566 INDIAN LAW REPORTS ALLAHABAD SERIES

On a reading of the aforesaid
section, it is manifest that in the definition
there are two separate classes of acts which
the person deceived may be induced to do.
In the first class of acts he may be induced
fraudulently or dishonestly to deliver
property to any person. The second class of
acts is the doing or omitting to do anything
which the person deceived would not do or
omit to do if he were not so deceived. In the
first class of cases, the inducing must be
fraudulent or dishonest. In the second class
of acts, the inducing must be intentional but
need not be fraudulent or dishonest.
Therefore, it is the intention which is the
gist of the offence. To hold a person guilty
of cheating it is necessary to show that he
had a fraudulent or dishonest intention at
the time of making the promise. From his
mere failure to subsequently keep a
promise, one cannot presume that he all
along had a culpable intention to break the
promise from the beginning.

11. I shall now deal with the
ingredients of Section 467 IPC. Section 467
IPC reads as under:

"467.
Forgery
of
valuable
security, will etc. Whoever forges a
document which purports to be a
valuable security or a will, or an
authority to adopt a son, or which
purports to give authority to any person
to make or transfer any valuable security,
or to receive the principal, interest or
dividends thereon, or to receive or deliver
any
money,
moveable
property,
or
valuable security, or any document
purporting to be an acquittance or
receipt acknowledging the payment of
money, or an acquittance or receipt for
the delivery of any moveable property or
valuable security, shall be punished with
imprisonment
for
life,
or
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine. The following
ingredients are essential for commission
of the offence under section 467 IPC:

1. the document in question so
forged;

2. the accused who forged it.

3. the document is one of the
kinds enumerated in the aforementioned
section.

The basic ingredients of offence
under Section 467 are altogether missing
even in the allegations of the FIR against
the appellants. Therefore, by no stretch of
the imagination, the appellants can be
legally prosecuted for an offence under
Section 467 IPC.

Even if all the averments made in
the FIR are taken to be correct, the case for
prosecution under Section 420 and 467 IPC
is not made out against the applicants. To
prevent abuse of the process and to secure
the ends of justice, it becomes imperative to
quash the FIR and any further proceedings
emanating therefrom.

The court must ensure that
criminal prosecution is not used as an
instrument of harassment or for seeking
private vendetta or with an ulterior motive
to pressure the accused. On analysis of the
aforementioned cases, we are of the
opinion that it is neither possible nor
desirable to lay down an inflexible rule that
would govern the exercise of inherent
jurisdiction. Inherent jurisdiction of the
High Courts under Section 482 Cr.P.C.
though wide has to be exercised sparingly,
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
567
carefully and with caution and only when it
is justified by the tests specifically laid
down in the Statute itself and in the
aforementioned cases. In view of the settled
legal position, the impugned judgment
cannot be sustained."

12. The Supreme Court, in Inder
Mohan Goswami v. State of Uttaranchal,
(2007)12 SCC 1, observed as under :

"The veracity of the facts alleged
by the appellants and the respondents can
only be ascertained on the basis of evidence
and documents by a civil court of competent
jurisdiction. The dispute in question is purely
of civil nature and respondent no.3 has
already instituted a civil suit in the court of
Civil Judge. In the facts and circumstances of
this case, initiating criminal proceedings by
the respondents against the appellants is
clearly an abuse of the process of the court.
Scope and ambit of courts powers under
Section 482 Cr.P.C.

This court in a number of cases has
laid down the scope and ambit of courts
powers under Section 482 Cr.P.C. Every High
Court has inherent power to act ex debito
justitiae to do real and substantial justice, for
the administration of which alone it exists, or
to prevent abuse of the process of the court.
Inherent power under Section 482 Cr.P.C. can
be exercised:

(i) to give effect to an order under
the Code; (ii) to prevent abuse of the process
of court, and (iii) to otherwise secure the ends
of justice."

13. The Supreme Court, in Madhavrao
Jiwajirao
Scindia
and
Others
v.
Sambhajirao Chadrojirao Angre and
Others, (1988) 1 SCC 692, observed as
under : -

"The legal position is well-settled
that when a prosecution at the initial stage
is asked to be quashed, the test to be
applied by the court is as to whether the
uncontroverted allegations as made prima
facie establish the offence. It is also for the
court to take into consideration any special
features which appear in a particular case
to consider whether it is expedient and in
the interest of justice to permit a
prosecution to continue. This is so on the
basis that the court cannot be utilised for
any oblique purpose and where in the
opinion of the court chances of an ultimate
conviction is bleak and, therefore, no useful
purpose is likely to be served by allowing a
criminal prosecution to continue, the court
may while taking into consideration the
special facts of a case also quash the
proceeding even though it may be at a
preliminary stage."

14. The three judge Bench of the
Apex Court in the case of R.P. Kapur Vs.
State of Punjab AIR 1960 SC 866 after
discussing the power of this Court under
Section 561A old code (pari materia with
Section 482 Cr.P.C.) observed in paragraph
no.6 as:-

"6. Before dealing with the merits
of the appeal it is necessary to consider the
nature and scope of the inherent power of
the High Court under Section 561-Aof the
Code. The said section saves the inherent
power of the High Court to make such
orders as may be necessary to give effect to
any order under this Code or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice.
There is no doubt that this inherent power
cannot be exercised in regard to matters
specifically covered by the other provisions
of the Code. In the present case the
magistrate before whom the police report
568 INDIAN LAW REPORTS ALLAHABAD SERIES
has been filed under Section 173of the
Code has yet not applied his mind to the
merits of the said report and it may be
assumed in favour of the appellant that his
request for the quashing of the .proceedings
is not at the present stage covered by any
specific provision of the Code. It is wellestablished that the inherent jurisdiction of
the High Court can be exercised to quash
proceedings in a proper case either to
prevent the abuse of the process of any
court or otherwise to secure the ends of
justice. Ordinarily criminal proceedings
instituted against an accused person must
be tried under the provisions of the Code,
and the High Court would be reluctant to
interfere with the said proceedings at an
interlocutory stage. It is not possible,
desirable or expedient to lay down any
inflexible rule which would govern the
exercise of this inherent jurisdiction.
However, we may indicate some categories
of cases where the inherent jurisdiction can
and should be exercised for quashing the
proceedings. There may be cases where it
may be possible for the High Court to take
the view that the institution or continuance
of criminal proceedings against an accused
person may amount to the abuse of the
process of the court or that the quashing of
the impugned proceedings would secure the
ends of justice. If the criminal proceeding
in question is in respect of an offence
alleged to have been committed by an
accused person and it manifestly appears
that there is a legal bar against the
institution or continuance of the said
proceeding the High Court would be
justified in quashing the proceeding on that
ground. Absence of the requisite sanction
may, for instance, furnish cases under this
category. Cases may also arise where the
allegations in the First Information Report
or the complaint, even if they are taken at
their face value and accepted in their
entirety, do not constitute the offence
alleged; in such cases no ques- tion of
appreciating evidence arises; it is a matter
merely of looking at the complaint or the
First Information Report to decide whether
the offence alleged is disclosed or not. In
such cases it would be legitimate for the
High Court to hold that it would be
manifestly unjust to allow the process of the
criminal court to be issued against the
accused person. A third category of cases
in which the inherent jurisdiction of the
High Court can be successfully invoked
may also arise. In cases falling under this
category the allegations made against the
accused person do constitute an offence
alleged but there is either no legal evidence
adduced in support of the case or evidence
adduced clearly or manifestly fails to prove
the charge. In dealing with this class of
cases it is important to bear in mind the
distinction between a case where there is
no legal evidence or where there is
evidence which is manifestly and clearly
inconsistent with the accusation made and
cases where there is legal evidence which
on its appreciation may or may not support
the accusation in question. In exercising its
jurisdiction under Section 561-A the High
Court would not embark upon an enquiry
as to whether the evidence in question is
reliable or not. That is the function of the
trial magis- trate, and ordinarily it would
not be open to any party to invoke the High
Court's inherent jurisdiction and' contend
that on a reasonable appreciation of the
evidence the accusation made against the
accused would not be sustained. Xxxxxxxx"
 (Emphasis supplied)

15. Again Supreme Court discussed
the power of this Court under Section 482
Cr.P.C. very elaborately in the case of State
of Haryana and others Vs. Bhajan Lal
and others 1992 Supp (1) SCC 335 and in
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
569
paragraph 102 enumerated 7 categories of
the cases where power under Section 482
Cr.P.C. can be exercised by this Court
which is quoted below:-

"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
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 or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

16. Recently the three Judge Bench of
the Apex Court in the case of M/s.
Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra and others reported
in AIR 2021 Supreme Court 1918 again
discussed the scope of Section 482 Cr.P.C.
and Article 226 of Constitution of India in
570 INDIAN LAW REPORTS ALLAHABAD SERIES
detailed
manner
and
summarised
in
paragraph-23 as under:-

"23. In view of the above and for
the
reasons
stated
above,
our
final
conclusions on the principal/core issue,
whether the High Court would be justified in
passing an interim order of stay of
investigation and/or "no coercive steps to be
adopted", during the pendency of the
quashing petition under Section 482 Cr.P.C
and/or under Article 226 of the Constitution
of India and in what circumstances and
whether the High Court would be justified in
passing the order of not to arrest the accused
or "no coercive steps to be adopted" during
the
investigation
or
till
the
final
report/chargesheet is filed under Section 173
Cr.P.C., while dismissing/disposing of/not
entertaining/not
quashing
the
criminal
proceedings/complaint/FIR in exercise of
powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India,
our final conclusions are as under:

i) Police has the statutory right and
duty under the relevant provisions of the Code
of Criminal Procedure contained in Chapter
XIV of the Code to investigate into a cognizable
offence;

ii) Courts would not thwart any
investigation into the cognizable offences;

iii) It is only in cases where no
cognizable offence or offence of any kind is
disclosed in the first information report that the
Court will not permit an investigation to go on;

iv) The power of quashing should
be exercised sparingly with circumspection,
as it has been observed, in the ''rarest of rare
cases (not to be confused with the formation
in the context of death penalty).

v)
While
examining
an
FIR/complaint, quashing of which is sought,
the court cannot embark upon an enquiry as
to the reliability or genuineness or otherwise
of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not
to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR
should be an exception rather than an
ordinary rule;

viii) Ordinarily, the courts are
barred from usurping the jurisdiction of the
police, since the two organs of the State
operate in two specific spheres of activities
and one ought not to tread over the other
sphere;

ix) The functions of the judiciary
and the police are complementary, not
overlapping;

x) Save in exceptional cases where
non-interference would result in miscarriage
of justice, the Court and the judicial process
should not interfere at the stage of
investigation of offences;

xi) Extraordinary and inherent
powers of the Court do not confer an
arbitrary jurisdiction on the Court to act
according to its whims or caprice;

xii) The first information report is
not an encyclopaedia which must disclose
all facts and details relating to the offence
reported. Therefore, when the investigation
by the police is in progress, the court
should not go into the merits of the
allegations in the FIR. Police must be
permitted to complete the investigation. It
would be premature to pronounce the
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
571
conclusion based on hazy facts that the
complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. After investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may
file an appropriate report/summary before
the learned Magistrate which may be
considered by the learned Magistrate in
accordance with the known procedure;

xiii) The power under Section 482
Cr.P.C. is very wide, but conferment of wide
power requires the court to be more
cautious. It casts an onerous and more
diligent duty on the court;

xiv) However, at the same time,
the court, if it thinks fit, regard being had to
the parameters of quashing and the selfrestraint imposed by law, more particularly
the parameters laid down by this Court in
the cases of R.P. Kapur (supra) and Bhajan
Lal (supra), has the jurisdiction to quash
the FIR/complaint;

xv) When a prayer for quashing
the FIR is made by the alleged accused and
the court when it exercises the power under
Section 482 Cr.P.C., only has to consider
whether the allegations in the FIR disclose
commission of a cognizable offence or not.
The court is not required to consider on
merits whether or not the merits of the
allegations make out a cognizable offence
and
the
court
has
to
permit
the
investigating agency/police to investigate
the allegations in the FIR;

xvi) The aforesaid parameters
would be applicable and/or the aforesaid
aspects are required to be considered by the
High Court while passing an interim order
in a quashing petition in exercise of powers
under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India.
However, an interim order of stay of
investigation during the pendency of the
quashing petition can be passed with
circumspection. Such an interim order
should not require to be passed routinely,
casually and/or mechanically. Normally,
when the investigation is in progress and
the
facts
are
hazy
and
the
entire
evidence/material is not before the High
Court, the High Court should restrain itself
from passing the interim order of not to
arrest or "no coercive steps to be adopted"
and the accused should be relegated to
apply for anticipatory bail under Section
438 Cr.P.C. before the competent court. The
High Court shall not and as such is not
justified in passing the order of not to
arrest and/or "no coercive steps" either
during
the
investigation
or
till
the
investigation is completed and/or till the
final report/chargesheet is filed under
Section
173
Cr.P.C.,
while
dismissing/disposing
of
the
quashing
petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India.

xvii) Even in a case where the
High Court is prima facie of the opinion
that an exceptional case is made out for
grant
of
interim
stay
of
further
investigation, after considering the broad
parameters while exercising the powers
under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India
referred to hereinabove, the High Court has
to give brief reasons why such an interim
order is warranted and/or is required to be
passed so that it can demonstrate the
application of mind by the Court and the
higher forum can consider what was
weighed with the High Court while passing
such an interim order.
572 INDIAN LAW REPORTS ALLAHABAD SERIES

xviii) Whenever an interim order
is passed by the High Court of "no coercive
steps to be adopted" within the aforesaid
parameters, the High Court must clarify
what does it mean by "no coercive steps to
be adopted" as the term "no coercive steps
to be adopted" can be said to be too vague
and/or broad which can be misunderstood
and/or misapplied." (Emphasis supplied)

17. Therefore, Section 482 Cr.P.C.
deals with the inherent power of this Court
to prevent the abuse of process of any
Court or to secure the ends of justice.

18. The three judges Bench of the
Apex Court in the case of Parbatbhai
Aahir alias Parbatbhai Bhimsinhbhai
Karmur and others Vs. State of Gujarat
and another (2017) 9 SCC 641 held that
Section 482 Cr.P.C. is prefaced with an
overriding provision and this Court being a
superior Court has the inherent power to
make such orders as are necessary (i) to
prevent an abuse of the process of any
Court; or (ii) otherwise to secure the ends
of justice.

19 . Recently, the Apex Court in the
case of Kapil Agarwal and8 others Vs.
Sanjay Sharma and others (2021) 5 SCC
524 observed in respect of power of this
court under Section 482 Cr.P.C. as:-

"As observed and held by this
Court in catena of decisions, inherent
jurisdiction under Section 482 Cr.P.C.
and/or
under
Article
226
of
the
Constitution is designed to achieve salutary
purpose that criminal proceedings ought
not to be permitted to degenerate into
weapon of harassment. When the Court is
satisfied that criminal proceedings amount
to an abuse of process of law or that it
amounts
to
bringing
pressure
upon
accused, in exercise of inherent powers,
such proceedings can be quashed."

20. The Supreme Court, in Mohd.
Ibrahim v. State of Bihar (2009) 8 SCC
751, observed as under:

"19. To constitute an offence
under Section 420, there should not only be
cheating, but as a consequence of such
cheating,
the
accused
should
have
dishonestly induced the person deceived (i)
to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in
part a valuable security (or anything
signed or sealed and which is capable of
being converted into a valuable security).

20. When a sale deed is executed
conveying a property claiming ownership
thereto, it may be possible for the
purchaser under such sale deed, to allege
that the vendor has cheated him by making
a false representation of ownership and
fraudulently induced him to part with the
sale consideration. But in this case the
complaint is not by the purchaser. On the
other hand, the purchaser is made a coaccused.

21. It is not the case of the
complainant that any of the accused tried
to deceive him either by making a false or
misleading representation or by any other
action or omission, nor is it his case that
they offered him any fraudulent or
dishonest
inducement
to deliver
any
property or to consent to the retention
thereof by any person or to intentionally
induce him to do or omit to do anything
which he would not do or omit if he were
not so deceived. Nor did the complainant
allege that the first appellant pretended to
be the complainant while executing the sale
deeds. Therefore, it cannot be said that the
10 All. Smt. Madhu Gupta & Ors. Vs. State of U.P. & Anr.
573
first accused by the act of executing sale
deeds in favour of the second accused or
the second accused by reason of being the
purchaser, or the third, fourth and fifth
accused, by reason of being the witness,
scribe and stamp vendor in regard to the
sale deeds, deceived the complainant in any
manner.

22. As the ingredients of cheating
as stated in Section 415 are not found, it
cannot be said that there was an offence
punishable under Section 417, 418, 419 or
420 of the Code.

23. When we say that execution of
a sale deed by a person, purporting to
convey a property which is not his, as his
property, is not making a false document
and therefore not forgery, we should not be
understood as holding that such an act can
never be a criminal offence. If a person
sells a property knowing that it does not
belong to him, and thereby defrauds the
person who purchased the property, the
person defrauded, that is the purchaser,
may complain that the vendor committed
the fraudulent act of cheating. But a third
party who is not the purchaser under the
deed may not be able to make such
complaint.

24. The term `fraud' is not
defined in the Code. The dictionary
definition
of
`fraud'
is
"deliberate
deception, treachery or cheating intended
to gain advantage". Section 17 of the
Contract Act, 1872 defines `fraud' with
reference to a party to a contract.

27. The term "fraudulently" is
mostly used with the term "dishonestly"
which is defined in Section 24 as follows :

"24. Dishonestly'- Whoever does
anything with the intention of causing
wrongful gain to one person or wrongful
loss to another person is said to do that
thing "dishonestly".

28. To `defraud' or do something
fraudulently is not by itself made an offence
under the Penal Code, but various acts
when done fraudulently (or fraudulently
and dishonestly) are made offences. These
include:

(i)
Fraudulent
removal
or
concealment of property (sec.206, 421,
424)

(ii) Fraudulent claim to property
to prevent seizure (sec. 207).

(iii)
Fraudulent
suffering
or
obtaining a decree (sec. 208 and 210)

(iv)
Fraudulent
possession
/delivery of counterfeit coin (sec.239, 240,
242 and 243).

(v)
Fraudulent
alteration/
diminishing weight of coin (sec. 246 to
253)

(vi) Fraudulent acts relating to
stamps (sec. 255-261)

(vii) Fraudulent use of false
instruments/weight/measure
(sec.264
to
266)

(viii) Cheating (sec. 415 to 420)

(ix) Fraudulent prevention of debt
being available to creditors (sec. 422).
574 INDIAN LAW REPORTS ALLAHABAD SERIES

(x) Fraudulent execution of
deed of transfer containing false
statement of consideration (sec. 423).

(xi)
Forgery
making
or
executing a false document (sec. 463
to 471 and 474)

(xii) Fraudulent cancellation/
destruction
of
valuable
security
etc.(sec. 477)

(xiii)
Fraudulently
going
through marriage ceremony (sec.496).

It follows therefore that by
merely alleging or showing that a
person acted fraudulently, it cannot be
assumed that he committed an offence
punishable under the Code or any
other law, unless that fraudulent act is
specified to be an offence under the
Code or other law.

Section 504 Penal Code

29. The allegations of the
complaint do not also make out the
ingredients
of
an
offence
under
Section 504 of the Penal Code.
Section 504 refers to intentional insult
with intent to provoke breach of
peace.

The
allegation
in
the
complainant is that when he enquired
with accused 1 and 2 about the sale
deeds, they asserted that they will
obtain possession of land under the
sale deeds and he can do whatever he
wants. The statement attributed to
appellants 1 and 2, it cannot be said
to amount to an "insult with intent to
provoke
breach
of
peace".
The
statement attributed to accused, even
if it was true, was merely a statement
referring
to
the
consequence
of
execution of the sale deeds by first
appellant in favour of the second
appellant.

Conclusion