# Smt. Reena v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-01
- **Case number:** Application U/S 482 Cr.P.C. No. 152 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-reena-v-state-of-u-p-anr-46881
- **Pages:** 15

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 304B - dowry death,
Dowry prohibition Act,1961 - Sections 3 -
penalty for giving or taking dowry ,
section 4 -penalty for demanding dowry -
evidence produced by the accused in his
defence cannot be looked into by the
Court,
except
in
very
exceptional
circumstances, at the initial stage of the
criminal proceedings - High Court cannot
embark upon the appreciation of evidence
while considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings - Appreciation of evidence on
merit is to be done by the court only after
the charges have been framed and the
trial has commenced - conclusion of the
High
Court
to
quash
the
criminal
proceedings on the basis of its assessment
of the statements recorded under Section
161 Cr.P.C. is not permissible as the
evidence of the accused cannot be looked
into before the stage of trial. (Para -
6,18,19)

Present application filed to quash the chargesheet, cognizance order as well as the entire
proceedings - F.I.R. lodged by the opposite
party no.2 - allegation - opposite party no.2
married his daughter with brother-in-law of
applicant (sister in law/jethani) - informant
received an information regarding harassment
of his daughter by the applicant as well as his
son-in-law (husband of deceased) for nonfulfilment
of
additional
dowry
demand
-
informant was informed by his son-in-law that
his daughter was of bad character - not ready
and willing to keep her as wife - information
received from Police Station about the death of
his daughter - F.I.R. registered against the
applicant as well as accused (husband of the
deceased).(Para -3)

HELD: - Adjudication on pure questions of fact may
adequately be adjudicated upon only by the trial
court and even the points of law can also be more
appropriately gone into by the trial court in this case.
The perusal of the F.I.R. and the material collected by
the Investigating Officer on the basis of which the
charge sheet has been submitted makes out a prima
facie case against the accused at this stage and there
appear to be sufficient ground for proceeding against
the accused. No justification to quash the charge
sheet or the proceedings against the applicants. No
abuse of the court's process at this pre-trial stage.
(Para - 20,21)

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

List of Cases cited: -

## Text

_Characters 0–39,891 of 52,254. This is a partial read: ask again with offset=39891 for what follows._

3 All. Smt. Reena Vs. State of U.P. & Anr.
385
Nil Ratan Kundu and also in the
provisions of Section 17(3) of the Act of
1890, but that can have no application in
the present case, where the minor is a very
young child, presently aged about three
years and a half. It is the circumstances and
the facts on record that alone can serve as a
guide
in
the
foreshadow of
settled
principles about the minor's welfare to
decide the question of her custody. It is not
known to this Court as to what are the
circumstances
appearing
against
the
mother, on the basis of which she has been
charged with conspiracy in her husband's
murder. This Court ought not to investigate
those circumstances also, that are the
concern of the court where she is facing
trial, but, as matters stand, she is an
accused in a case relating to her husband's
murder. The fact that she is an accused is
not in doubt. One consequence of this fact
is that she faces a situation where she could
be convicted, though the presumption of
innocence is all along with her. If she were
to be convicted, the minor's welfare would
be thrown into disarray. It would be
irreversibly unsettling and debilitating in
her formative years. It may even expose her
to insurmountable trauma, if she witnesses
her mother, whom she is bonded with,
convicted in the case of her father's murder.

15. This Court assumes that the
possibility of conviction may be remote or
not so remote, but the possibility is there.
The existence of this possibility and the
adverse impact of the event, if it were to
come to pass, would far outweigh the
transitory benefit the minor would derive
from her mother's care and company. This
facet of the matter apart, the possibility that
the mother might truly be a conspirator in
her
husband's
murder,
predicates
a
personality which would not be beneficial
for the minor in grooming her about her
moral values - a very important aspect of a
child's welfare. On the other hand, if the
mother is innocent and she is acquitted, the
loss, the minor would suffer on account of
deprivation of her mother's care and
custody, cannot be re-compensated, but
nevertheless, it is a reverse that must be
accepted for the minor's surer welfare, in
preference to a contingent better, fraught
with risk.

16. It is made clear that in the event
the mother is acquitted by judgment based
on doubt or otherwise, she would have the
right to move a court of competent
jurisdiction for her daughter's custody,
which would then be decided in accordance
with law.

17. Subject to what has been said
above, this Court does not find any good
ground to make the rule absolute. It is,
accordingly, discharged.

18. In the result, this petition fails and
stands dismissed.
----------

(2021)03ILR A385
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2021

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 152 of 2021

Smt. Reena ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Santosh Kumar Pandey, Sri Saurabh
Tripathi
386 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 304B - dowry death,
Dowry prohibition Act,1961 - Sections 3 -
penalty for giving or taking dowry ,
section 4 -penalty for demanding dowry -
evidence produced by the accused in his
defence cannot be looked into by the
Court,
except
in
very
exceptional
circumstances, at the initial stage of the
criminal proceedings - High Court cannot
embark upon the appreciation of evidence
while considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings - Appreciation of evidence on
merit is to be done by the court only after
the charges have been framed and the
trial has commenced - conclusion of the
High
Court
to
quash
the
criminal
proceedings on the basis of its assessment
of the statements recorded under Section
161 Cr.P.C. is not permissible as the
evidence of the accused cannot be looked
into before the stage of trial. (Para -
6,18,19)

Present application filed to quash the chargesheet, cognizance order as well as the entire
proceedings - F.I.R. lodged by the opposite
party no.2 - allegation - opposite party no.2
married his daughter with brother-in-law of
applicant (sister in law/jethani) - informant
received an information regarding harassment
of his daughter by the applicant as well as his
son-in-law (husband of deceased) for nonfulfilment
of
additional
dowry
demand
-
informant was informed by his son-in-law that
his daughter was of bad character - not ready
and willing to keep her as wife - information
received from Police Station about the death of
his daughter - F.I.R. registered against the
applicant as well as accused (husband of the
deceased).(Para -3)

HELD: - Adjudication on pure questions of fact may
adequately be adjudicated upon only by the trial
court and even the points of law can also be more
appropriately gone into by the trial court in this case.
The perusal of the F.I.R. and the material collected by
the Investigating Officer on the basis of which the
charge sheet has been submitted makes out a prima
facie case against the accused at this stage and there
appear to be sufficient ground for proceeding against
the accused. No justification to quash the charge
sheet or the proceedings against the applicants. No
abuse of the court's process at this pre-trial stage.
(Para - 20,21)

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

List of Cases cited: -

1. Mohd. Allauddin Khan Vs The St. of Bihar & ors.,
2019 0 Supreme (SC) 454

2. Rajeev Kaurav Vs Balasahab & ors., 2020 0
Supreme (SC) 143

3. V.K. Rai & anr. Vs St. & anr., Application U/S 482
No. 3707 2004

4. Sri Rudra Prakash Tiwari @ Raju Tiwari & anr. Vs
St. of U.P. & anr., Application U/S 482 No. 12608 of
2020

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

6. St. of Har. & ors. Vs.Ch. Bhajan Lal & ors., 1992
Supp. (1) SCC 335

7. St. of Bihar & anr. Vs P.P. Sharma & anr., 1992
Supp (1) SCC 222

8. Zandu Pharmaceuticals Works Ltd. & ors. Vs.
Mohammad Shariful Haque & anr., 2005 (1) SCC 122

9. M. N. Ojha Vs Alok Kumar Srivastava; 2009 (9)
SCC 682

10. Nallapareddy Sridhar Reddy Vs The St. of A.P. &
ors., 2020 0 Supreme (SC) 45

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Supplementary affidavit filed by
learned counsel for the applicant today in
the Court, is taken on record.

2. The present 482 Cr.P.C. application
has been filed to quash the charge-sheet
3 All. Smt. Reena Vs. State of U.P. & Anr.
387
dated 05.02.2019 as well as the cognizance
order dated 06.02.2019 as well as the entire
proceedings of S.T. No. 129of 2019 (State
Vs. Virendra Gupta & others), arising out
of Case Crime No.12 of 2019, under
Sections 304B I.P.C. as also under Sections
3/4 D.P. Act, Police Station-G.R.P., Kanpur
Nagar, District-Kanpur Nagar, pending in
the court of Chief Metropolitan Magistrate,
Kanpur Nagar.

3. Heard Mr. Santosh Kumar Pandey,
learned counsel for the applicants and Mr.
Pankaj Srivastava, learned A.G.A. for the
State as well as perused the entire material
available on record. It is not necessary to
issue notice to opposite party no.2, as he
has no right to be heard at pre-cognizance
stage

3. Brief facts of the case are that the
present F.I.R. was lodged by the opposite
party no.2 alleging therein that the opposite
party no.2 married his daughter with
brother-in-law
of
applicant,
namely,
Virendra on 04.03.2017 according to Hindu
Rites and Rituals. After sometime, the
informant
received
an
information
regarding harassment of his daughter by the
applicant as well as his son-in-law, namely,
Virendra (husband of deceased) for nonfulfilment of additional dowry demand. The
informant and his family members put all
efforts to solve problem but in vain. On
20.12.2018, the informant was informed by
his son-in-law that his daughter was of bad
character, therefore, he was not ready and
willing to keep her as wife. After the
aforesaid communication, on 21.12.2018,
an information was received from Police
Station G.R.P. Kanpur Nagar about the
death of his daughter, therefore, an F.I.R.
was registered against the applicant as well
as accused Virendra Gupta (husband of the
deceased).
After
completing
statutory
investigation under Chapter XII Cr.P.C., on
05.02.2019 the Investigating Officer has
submitted the charge-sheet against the
applicant and co-accused Virendra Gupta
under under Sections 304B I.P.C. as also
under Section 3/4 D.P. Act, Police StationG.R.P. Kanpur Nagar, District-Kanpur
Nagar on which the court concerned took
cognizance on 06.02.2019 and directed the
registration of the case, which has been
registered as S.T. No. 129of 2019 (State Vs.
Virendra Gupta & others), arising out of
Case Crime No.12 of 2019, under Sections
304B I.P.C. as also under Sections 3/4 D.P.
Act, Police Station-G.R.P., Kanpur Nagar,
District-Kanpur Nagar. The husband of the
deceased, namely, Virendra Gupta is
languishing in jail since 22.12.2018, the
said fact has been mentioned in the
supplementary affidavit filed today in the
Court. As per the post mortem report of the
deceased, the cause of death of the
deceased is Asphyxia as a result of antemortem throatling.

4. It has been submitted by learned
counsel for the applicant that the applicant
is sister-in-law (jethani) of daughter of
opposite party no.2 and has been falsely
implicated in the present case. The
applicant
has
neither
demanded
any
additional demand of dowry nor torture or
beat the deceased. There is no direct or
indirect evidence on the basis of which it
can be said that the applicant is involved in
the commission of the alleged offence. It
has further been submitted that death of the
deceased took place in the train and the
applicant was not present there. Learned
counsel for the applicant has relied upon
the confessional statement of the husband
of the deceased, in which, he has confessed
that he committed the said crime of
murdering the deceased. Learned counsel
for the applicants, therefore, submitted that
388 INDIAN LAW REPORTS ALLAHABAD SERIES
the present criminal proceedings initiated
against the applicant is not only malicious
but also amount to an abuse of the process
of the court of law. On the cumulative
strength of the aforesaid submissions, it is
submitted by learned counsel for the
applicant that the proceedings of the above
mentioned criminal case are liable to be
quashed by this Court.

5. Per contra, Mr. Pankaj Srivastava,
learned A.G.A. for the State has opposed
the prayer made by the learned counsel
for the applicant by contending that in the
F.I.R., there are specific allegations
against
the
applicant
for
beating,
torturing the deceased for non-fulfilment
of additional dowry demand. There is
consistency in the prosecution story as
unfolded in the first information report
and statements of the informant under
Section 161 Cr.P.C. The circumstances
under which, the deceased has died, goes
to show that, prima facie case for the
alleged offence is made out against the
applicant. Lastly, the learned A.G.A.
states that this High Court may not quash
the entire criminal proceedings under
Section 482 Cr.P.C. at the pre-trial stage,
for which he has relied upon the
judgment of the Apex Court in the case of
Mohd. Allauddin Khan Vs. The State of
Bihar & Others reported in 2019 0
Supreme (SC) 454, wherein the Apex
Court has held that the High Court had no
jurisdiction to appreciate the evidence of
the
proceedings
under
Section
482
Cr.P.C.
because
whether
there
are
contradictions or/and inconsistencies in
the statements of the witnesses is an
essential issue relating to appreciation of
evidence and the same can be gone into
by the Judicial Magistrate during trial
when the entire evidence is adduced by
the parties. However, in the present case
the said stage is yet to come.

6. Learned A.G.A. has further relied
upon the judgment of the Apex Court in the
case of Rajeev Kaurav Vs. Balasahab &
Others reported in 2020 0 Supreme (SC)
143, wherein the Apex Court has held that
it is no more res integra that exercise of
power under Section 482 CrPC to quash a
criminal proceeding is only when an
allegation made in the FIR or the charge
sheet constitutes the ingredients of the
offence/offences alleged. Interference by
the High Court under Section 482 CrPC is
to prevent the abuse of process of any law
or Court or otherwise to secure the ends of
justice. It is settled law that the evidence
produced by the accused in his defence
cannot be looked into by the Court, except
in very exceptional circumstances, at the
initial stage of the criminal proceedings. It
is trite law that the High Court cannot
embark upon the appreciation of evidence
while considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings. It is clear from the law laid
down by this Court that if a prima facie
case is made out disclosing the ingredients
of the offence alleged against the accused,
the
Court
cannot
quash
a
criminal
proceeding.

7. The learned A.G.A. further
relied upon the judgments of this Court
in the cases of V.K. Rai & Another Vs.
State & Another passed in Application
U/S 482 No. 3707 2004, decided on
29th April,
2019
and
Sri
Rudra
Prakash Tiwari @ Raju Tiwari &
Another Vs. State of U.P. & Another
passed in Application U/S 482 No.
12608 of 2020 decided on 6th October,
2020.
3 All. Smt. Reena Vs. State of U.P. & Anr.
389

8. On the cumulative strength of the
aforesaid submissions, learned A.G.A. states
that this Court may not exercise its inherent
power under Section 482 Cr.P.C. in the present
case, and hence the present application is liable
to be rejected.

9. I have considered the submissions
made by the learned counsel for the parties and
gone through the records of the present
application.

10. This Court finds substance in the
contention raised by the learned A.G.A. that
prima facie case for the alleged offence is made
out against the applicant. There is consistency
in the prosecution story as unfolded in the first
information report and statement of the
informant under Section 161 Cr.P.C. In the
F.I.R., there is specific allegation against the
applicant regarding beating, torturing of the
deceased.

11. This Court comes on the issue
whether it is appropriate for this Court being the
Highest Court to exercise its jurisdiction under
Section 482 Cr.P.C. to quash the charge-sheet
and the proceedings at the stage when the
Magistrate has merely issued process against
the applicants and trial is to yet to come only on
the submission made by the learned counsel for
the applicants that present criminal case
initiated by opposite party no.2 are not only
malicious but also abuse of process of law. The
aforesaid issue has elaborately been discussed
by the Apex Court in the following judgments:-

(i) R.P. Kapur Versus State of
Punjab; AIR 1960 SC 866,

(ii) State of Haryana & Ors.
Versus Ch. Bhajan Lal & Ors.;1992
Supp.(1) SCC 335,

(iii) State of Bihar & Anr. Versus
P.P. Sharma & Anr.; 1992 Supp (1) SCC
222,

(iv)
Zandu
Pharmaceuticals
Works Ltd. & Ors. Versus Mohammad
Shariful Haque & Anr.; 2005 (1) SCC
122, and

(v) M. N. Ojha Vs. Alok Kumar
Srivastava; 2009 (9) SCC 682.

12. In the case of R.P. Kapur
(Supra), the following has been observed
by the Apex Court in paragraph 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 s. 561 -A of 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 has been filed under s.
173 of 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 well-established 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
390 INDIAN LAW REPORTS ALLAHABAD SERIES
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
a11egations 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 s. 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. Broadly
stated that is the nature and scope of the
inherent jurisdiction of the High Court
under s. 561-A in the matter of quashing
criminal proceedings, and that is the effect
of the judicial decisions on the point (Vide:
In Re: Shripad G. Chandavarkar AIR 1928
Bom 184, Jagat Ohandra Mozumdar v.
Queen Empress ILR 26 Cal 786), Dr.
Shanker Singh v. The State of Punjab 56
Pun LR 54 : (AIR 1954 Punj 193),
Nripendra Bhusan Ray v. Govind Bandhu
Majumdar, AIR 1924 Cal 1018 and
Ramanathan Chettiyar v. K. Sivarama
Subrahmanya Ayyar ILR 47 Mad 722: (AIR
1925 Mad 39)."

13. In the case of State of Haryana
(Supra), the following has been observed
by the Apex Court in paragraph 105:-

"105. 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 extra-ordinary power
under Article 226 or the inherent powers
3 All. Smt. Reena Vs. State of U.P. & Anr.
391
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 F.I.R. 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
F.I.R. 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."

14. In the case of State of Bihar
(Supra), the following has been observed
by the Apex Court in paragraph 22. :-

"The question of mala fide
exercise of power assumes significance
only when the criminal prosecution is
initiated on extraneous considerations and
for an unauthorised purpose. There is no
material whatsoever is this case to show
that on the date when the FIR was lodged
by R.K. Singh he was activated by bias or
had any reason to act maliciously. The
dominant purpose of registering the case
against the respondents was to have an
investigation done into the allegations
contained in the FIR and in the event of
there being sufficient material in support of
the allegations to present the charge sheet
before the court. There is no material to
show
that
the
dominant
object
of
registering the case was the character
assassination of the respondents or to
harass and humiliate them. This Court in
State of Bihar v J.A.C. Saldhana and Ors.,
[1980] 2 SCR 16 has held that when the
information is lodged at the police station
and an offence is registered, the mala fides
392 INDIAN LAW REPORTS ALLAHABAD SERIES
of the informant would be of secondary
importance. It is the material collected
during the investigation which decides the
fate of the accused person. This Court in
State of Haryana and Ors. v. Ch. Bhajan
Lal and Ors., J.T. 1990 (4) S.C. 650
permitted the State Government to hold
investigation afresh against Ch. Bhajan Lal
inspite of the fact the prosecution was
lodged at the instance of Dharam Pal who
was enimical towards Bhajan Lal."

15.

In
the
case
of
Zandu
Pharmaceuticals Works Ltd. (Supra), the
following has been observed by the Apex
Court in paragraphs nos. 8 to 12:-

"8. Exercise of power under
Section 482 of the Code in a case of this
nature is the exception and not the rule.
The Section does not confer any new
powers on the High Court. It only saves the
inherent power which the Court possessed
before the enactment of the Code. It
envisages three circumstances under which
the inherent jurisdiction may be exercised,
namely, (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. It is neither
possible nor desirable to lay down any
inflexible rule which would govern the
exercise
of
inherent
jurisdiction.
No
legislative
enactment
dealing
with
procedure can provide for all cases that
may possibly arise. Courts, therefore, have
inherent
powers
apart
from
express
provisions of law which are necessary for
proper discharge of functions and duties
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognizes and
preserves inherent powers of the High
Courts. All courts, whether civil or criminal
possess, in the absence of any express
provision, as inherent in their constitution,
all such powers as are necessary to do the
right and to undo a wrong in course of
administration of justice on the principle
"quando
lex
aliquid
alicui
concedit,
concedere videtur et id sine quo res ipsae
esse non potest" (when the law gives a
person anything it gives him that without
which it cannot exist). While exercising
powers under the section, the court does
not function as a court of appeal or
revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae
to do real and substantial justice for the
administration of which alone courts exist.
Authority
of
the
court
exists
for
advancement of justice and if any attempt is
made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and prevent
promotion of justice. In exercise of the
powers court would be justified to quash
any
proceeding
if
it
finds
that
initiation/continuance of it amounts to
abuse of the process of court or quashing of
these proceedings would otherwise serve
the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged
and whether any offence is made out even if
the allegations are accepted in toto.

9. In R. P. Kapur v. State of
Punjab (AIR 1960 SC 866) this Court
summarized some categories of cases
where inherent power can and should be
exercised to quash the proceedings.
3 All. Smt. Reena Vs. State of U.P. & Anr.
393

(i) where it manifestly appears
that there is a legal bar against the
institution or continuance e.g. want of
sanction;

(ii) where the allegations in the
first information report or complaint taken
at its face value and accepted in their
entirety do not constitute the offence
alleged;

(iii)
where
the
allegations
constitute an offence, but there is no legal
evidence adduced or the evidence adduced
clearly or manifestly fails to prove the
charge.

10. In dealing with the last case,
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 clearly inconsistent with
the accusations made, and a case where
there
is
legal
evidence
which,
on
appreciation, may or may not support the
accusations. When exercising jurisdiction
under Section 482 of the Code, the High
Court would not ordinarily embark upon an
enquiry whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it accusation would not be
sustained. That is the function of the trial
Judge. Judicial process should not be an
instrument of oppression, or, needless
harassment. Court should be circumspect
and judicious in exercising discretion and
should
take
all
relevant
facts
and
circumstances into consideration before
issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly. At the same time the
section is not an instrument handed over to
an accused to short-circuit a prosecution
and bring about its sudden death.

11. The scope of exercise of
power under Section 482 of the Code and
the categories of cases where the High
Court may exercise its power under it
relating to cognizable offences to prevent
abuse of process of any court or otherwise
to secure the ends of justice were set out in
some detail by this Court in State of
Haryana v. Bhajan Lal (1992 Supp (1)
335). A note of caution was, however,
added that the power should be exercised
sparingly and that too in rarest of rare
cases. The illustrative categories indicated
by this Court are as follows:

"(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
394 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Code or the Act concerned (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 Act
concerned, 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."

As noted above, the powers
possessed by the High Court under Section
482 of the Code are very wide and the very
plenitude of the power requires great
caution in its exercise. Court must be
careful to see that its decision in exercise of
this power is based on sound principles.
The inherent power should not be exercised
to stifle a legitimate prosecution. The High
Court being the highest court of a State
should normally refrain from giving a
prima facie decision in a case where the
entire facts are incomplete and hazy, more
so when the evidence has not been
collected and produced before the Court
and the issues involved, whether factual or
legal, are of magnitude and cannot be
seen in their true perspective without
sufficient material. Of course, no hardand-fast rule can be laid down in regard
to cases in which the High Court will
exercise its extraordinary jurisdiction of
quashing the proceeding at any stage.
(See: Janata Dal v. H. S. Chowdhary (1992
(4) SCC 305), and Raghubir Saran (Dr.) v.
State of Bihar (AIR 1964 SC 1). It would
not be proper for the High Court to analyse
the case of the complainant in the light of
all probabilities in order to determine
whether a conviction would be sustainable
and on such premises arrive at a
conclusion that the proceedings are to be
quashed. It would be erroneous to assess
the material before it and conclude that the
complaint cannot be proceeded with. In a
proceeding
instituted
on
complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case
where the complaint does not disclose any
offence or is frivolous, vexatious or
oppressive. If the allegations set out in the
complaint do not constitute the offence of
which cognizance has been taken by the
Magistrate, it is open to the High Court to
quash the same in exercise of the inherent
powers under Section 482 of the Code. It is
not, however, necessary that there should
be meticulous analysis of the case before
the trial to find out whether the case would
end in conviction or acquittal. The
complaint has to be read as a whole. If it
appears that on consideration of the
allegations in the light of the statement
made on oath of the complainant that the
ingredients of the offence or offences are
disclosed and there is no material to show
that the complaint is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High
Court. When an information is lodged at
the police station and an offence is
registered, then the mala fides of the
informant
would
be
of
secondary
importance. It is the material collected
during the investigation and evidence led in
court which decides the fate of the accused
person. The allegations of mala fides
against
the
informant
are
of
no
consequence and cannot by themselves be
the basis for quashing the proceedings.
(See: Dhanalakshmi v. R. Prasanna Kumar
(1990 Supp SCC 686), State of Bihar v. P.
P. Sharma (AIR 1996 SC 309), Rupan Deol
Bajaj v. Kanwar Pal Singh Gill (1995 (6)
SCC 194), State of Kerala v. O. C. Kuttan
(AIR 1999 SC 1044), State of U.P. v. O. P.
3 All. Smt. Reena Vs. State of U.P. & Anr.
395
Sharma (1996 (7) SCC 705), Rashmi
Kumar v. Mahesh Kumar Bhada (1997 (2)
SCC 397), Satvinder Kaur v. State (Govt. of
NCT of Delhi) (AIR 1996 SC 2983) and
Rajesh Bajaj v. State NCT of Delhi (1999
(3) SCC 259.

12. The above position was
recently highlighted in State of Karnataka
v. M. Devendrappa and Another (2002 (3)
SCC 89)."(emphasis added)

16. Thereafter, in the case of M.N.
Ojha Vs. Alok Kumar Srivastava, reported
in
2009
(9)
SCC
682
has
made
observations in paragraphs 25, 27, 28, 29
and 30 regarding the exercise of power
under section 482 Cr.P.C. as well as the
principles governing the exercise of such
jurisdiction:-

"25. Had the learned SDJM
applied his mind to the facts and
circumstances and sequence of events and
as well as the documents filed by the
complainant
himself
along
with
the
complaint, surely he would have dismissed
the complaint. He would have realized that
the complaint was only a counter blast to
the FIR lodged by the Bank against the
complainant and others with regard to
same transaction.

26. This Court in Pepsi Foods
Ltd. & Anr. Vs. Special Judicial Magistrate
& Ors. [(1998)5 SCC 749 held:

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

27. The case on hand is a classic
illustration of non-application of mind by
the learned Magistrate. The learned
Magistrate did not scrutinize even the
contents of the complaint, leave aside the
material documents available on record.
The learned Magistrate truly was a silent
spectator at the time of recording of
preliminary evidence before summoning the
appellants.

28. The High Court committed a
manifest error in disposing of the petition
filed by the appellants under Section 482 of
the Code without even adverting to the
basic facts which were placed before it for
its consideration.

29. It is true that the court in
exercise of its jurisdiction under Section
482 of the Code of Criminal Procedure
cannot go into the truth or otherwise of the
allegations and appreciate the evidence if
any available on record. Normally, the
High Court would not intervene in the
criminal proceedings at the preliminary
stage/when the investigation/enquiry is
pending.

30. Interference by the High
Court in exercise of its jurisdiction under
Section
482
of
Code
of
Criminal
396 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure can only be where a clear case
for such interference is made out.
Frequent and uncalled for interference
even at the preliminary stage by the High
Court may result in causing obstruction in
progress of the inquiry in a criminal case
which may not be in the public interest.
But at the same time the High Court cannot
refuse to exercise its jurisdiction if the
interest of justice so required where the
allegations made in the FIR or complaint
are so absurd and inherently improbable on
the basis of which no fair-minded and
informed observer can ever reach a just
and proper conclusion as to the existence of
sufficient grounds for proceeding. In such
cases refusal to exercise the jurisdiction
may equally result in injustice more
particularly
in
cases
where
the
Complainant sets the criminal law in
motion with a view to exert pressure and
harass the persons arrayed as accused in
the complaint."(emphasis added)

17. In the case of Md. Allauddin
Khan (Supra), which has been relied upon
by the learned A.G.A. for the State, the
Apex Court has held that the High Court
had no jurisdiction to appreciate the
evidence in proceedings under Section 482
Cr.P.C. The relevant paragraph nos. 15 to
17 are being quoted herein below:-

"15. The High Court should have
seen that when a specific grievance of the
appellant in his complaint was that
respondent Nos.