# Sukhraj v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 1136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-02
- **Case number:** Application U/S 482 No. 12371 of 2020
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukhraj-v-state-of-u-p-anr-46885
- **Pages:** 10

## Headnote

Code of Criminal Procedure -Sec. 340 and
341-Impugned
order
states-application
u/s 340 Cr.P.C.-filed against Applicant-
will be considered on merit at the time of
disposal of complaint case filed by the
applicant-challenged-rallel
enquiry
is
neither proper nor feasible-Section 341
Cr.P.C.
provides
statutory
remedyApplication dismissed. (E-7)

List of Cases cited:

## Text

1136 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity to put forward their evidence.
It is, therefore, not proper for us at this
stage to remand the case to enable the
defendants to make good their lapse."

57. Thus, in view of the aforesaid
discussions, this Court finds that there is no
error committed by the two Courts and
accordingly, the instant second appeal fails
and the judgment and decree dated
17.05.1975 passed in R.S. No. 191 of 1970
and the Judgment and decree of the Lower
Appellate Court dated 16.11.1982 in Civil
Appeal No. 288 of 1979 are affirmed.

58. The second appeal stands
dismissed, there shall be no order as to
costs.

59. The office is directed to remit the
record of the Trial Court to the Court
concerned within a period of two weeks.
----------
(2021)03ILR A1136
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 No. 12371 of 2020

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

Counsel for the Applicant:
Sri Syed Wajid Ali, Sri Jai Prakash Prasad,
M/s. Rachna Vyas

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

Code of Criminal Procedure -Sec. 340 and
341-Impugned
order
states-application
u/s 340 Cr.P.C.-filed against Applicant-
will be considered on merit at the time of
disposal of complaint case filed by the
applicant-challenged-rallel
enquiry
is
neither proper nor feasible-Section 341
Cr.P.C.
provides
statutory
remedyApplication dismissed. (E-7)

List of Cases cited:

1. Pritish Vs St. of Mah. & ors. (2002) 1 SCC 253

2. Iqbal Singh Marwah Vs Meenakshi Marwah
2005(2) SCC 549

3. St. of Goa Vs Jose Maria Albert Vales @
Robert Vales, (2018) 11 SCC 659,

4.Sharad Pawar Vs Jagmohan (2010) 15 SCC
290

5.St. of Punj. Vs Jasbir Singh (2020) 12 SCC 96

6. St. of Har. Vs Bhajanlal 1992 (1) SCC 335,
Girish Kumar Suneja Vs C.B.I. (2017) 14 SCC
809

7. Google India (P) Ltd. Vs Visaka Industries,
(2020) 4 SCC 162

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri Wajid Ali, learned
counsel for the applicant, Shri Pankaj
Saxena, learned A.G.A. for the State and
perused the record.

2. This application/petition under
Section 482 of the Code of Criminal
Procedure 1973 has been filed for quashing
the entire proceedings of Misc. Case No.
1064 of 2017, under Section 340 Cr.P.C.
pending before the Judicial Magistrate,
Sant Kabir Nagar (Abdul Taiyab versus
Sukhraj) Police Station-Dudhara, DistrictSant Kabir Nagar.

3. The facts of the case as per the
petition as also the submission made by
3 All. Sukhraj Vs. State of U.P. & Anr.
1137
learned counsel for the applicant are that
one Eklakh Ahmad filed an application
under
Section
156(3)
Cr.P.C.
on
30.08.2012, against Mohd. Tayyab @
Abdul Taiyab opposite party no. 2 and
others, registered as complaint case no.
1075 of 2013, which, after recording of the
statement of the complainant therein under
Section 200 Cr.P.C. and of the present
applicant as P.W.-1 in that case was rejected
in non prosecution under Section 203
Cr.P.C. by order dated 08.08.2017 passed
by the Magistrate.

4. The applicant on 17.01.2017 filed
an application under Section 156(3) Cr.P.C.
in which the Judicial Magistrate Sant Kabir
Nagar issued direction to the concerned
Police Station to register a first information
report against the opposite party no. 2 and
in pursuance thereof an F.I.R. in Case
Crime No. 1590 of 2017, Police StationDhudara, District-Sant Kabir Nagar, under
Sections 419, 420 I.P.C., was registered.
After investigation a final report was
submitted against which, the applicant filed
a protest petition upon which the final
report was rejected and the Complaint Case
No. 19/2018 was registered against the
opposite party no. 2.

5. The complaint related to the
alleged forged caste certificate dated
31.05.2000 on the basis of which the
opposite party no. 2 contested the election
of Gram Pradhan of a Gram Panchayat.
Later
on
the
Caste
Certificate
was
cancelled by the District Level Caste
Scrutiny
Committee
by
order
dated
28.12.2018, finding that the opposite party
no. 2 did not belong to that caste for which
the caste certificate was issued.

6. The opposite party no. 2 filed an
application under Section 340 Cr.P.C. on
04.10.2017, against the applicant, which
was registered as Misc. Case No. 1064 of
2017 and is pending before the Judicial
Magistrate, Sant Kabir Nagar.

7. The application under Section 340
Cr.P.C. has been filed on the averments
interalia that the present applicant although
was a witness as P.W. 1 in Complaint Case
No. 1075/2013, which was dismissed in
non-prosecution on 08.08.2017, but without
disclosing those facts, the applicant himself
filed application under Section 156(3)
Cr.P.C. against the opposite party no. 2, and
as such action be taken against him.

8. By the impugned order dated
19.07.2019, the Magistrate directed that the
application filed by the opposite party no. 2
under Section 340 Cr.P.C. will be decided
on merits along with the Complaint Case
No. 19/2018 filed by the applicant.

9. Learned counsel for the applicant
submits that the application under Section
340 Cr.P.C. has been filed with ill will as
the applicant was a witness under Section
202 Cr.P.c. in the Complaint Case No. 1075
of 2013, although no action has been taken
by opposite party no. 2 against Iqlaq
Ahmad the complainant of Case No. 1075
of 2013. He submits that the Caste
Certificate of the opposite party no. 2
having been cancelled by the District Level
Caste Scrutiny Committee as forged one,
the applicant is not liable to be proceeded
against in Case No. 1064 of 2017 under
Section 340 Cr.P.C.

10. Learned counsel for the applicant
further submits that the Magistrate ought to
have decided the application u/s 340
Cr.P.C. at this stage and ought not to have
directed for decision on merits with
Complaint Case No. 19/2018.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Learned A.G.A. submits that by
order dated 19.07.2019 only this much
has been provided that the application
filed by the opposite party no. 2, under
Section 340 Cr.P.C. shall be considered
on its own merit at the time of disposal of
the complaint case filed by the applicant
and so long as the Magistrate does not
pass order for filing of the complaint
against the applicant, the applicant has no
right to challenge the proceedings of
Misc. Case No. 1064 of 2017. The
Magistrate has yet not directed to register
complaint against the applicant.

12. Learned A.G.A. further submits
that
considering
the
stage
of
the
proceedings and the nature of the order
passed by the Magistrate the inherent
powers deserves not to be invoked.

13.

I
have
considered
the
submissions advanced by the learned
counsel for the applicant and the learned
A.G.A.

14.

To
appreciate
the
rival
contentions it is necessary to consider the
nature of the proceedings, the procedure
prescribed, the stage of the proceedings
and the right of the applicant to invoke
the inherent power of this Court in a
petition filed under Section 482 Cr.P.C.

15. It is apt to refer to the legal
provisions of Sections 195, 340, 341 and
343 Cr.P.C. as follows:-

"195. Prosecution for contempt
of lawful authority of public servants, for
offences against public justice and for
offences relating to documents given in
evidence.

(1)
No
Court
shall
take
cognizance-

(a) (i) of any offence punishable
under sections 172 to 188 (both inclusive)
of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, or attempt
to commit, such offence, or

(iii) of any criminal conspiracy to
commit such offence, except on the
complaint in writing of the public servant
concerned or of some other public servant
to
whom
he
is
administratively
subordinate;

(b) (i) of any offence punishable
under any of the following sections of the
Indian Penal Code (45 of 1860 ), namely,
sections 193 to 196 (both inclusive), 199,
200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court, or
(ii) of any offence described in section 463,
or punishable under section 471, section
475 or section 476, of the said Code, when
such offence is alleged to have been
committed in respect of a document
produced or given in evidence in a
proceeding in any Court, or

(iii) of any criminal conspiracy to
commit, or attempt to commit, or the
abetment of, any offence specified in sub-
clause (i) or sub- clause (ii), except on the
complaint in writing of that Court, or of
some other Court to which that Court is
subordinate.

(2) Where a complaint has been
made by a public servant under clause (a)
of sub- section (1) any authority to which
he is administratively subordinate may
order the withdrawal of the complaint and
send a copy of such order to the Court; and
upon its receipt by the Court, no further
proceedings
shall
be
taken
on
the
complaint:
Provided
that
no
such
withdrawal shall be ordered if the trial in
the Court of first instance has been
concluded.
3 All. Sukhraj Vs. State of U.P. & Anr.
1139

(3) In clause (b) of sub- section
(1), the term" Court" means a Civil,
Revenue or Criminal Court, and includes a
tribunal constituted by or under a Central,
Provincial or State Act if declared by that
Act to be a Court for the purposes of this
section.

(4) For the purposes of clause (b)
of sub- section (1), a Court shall be deemed
to be subordinate to the Court to which
appeals ordinarily lie from the appealable
decrees or sentences of such former Court,
or in the case of a Civil Court from whose
decrees no appeal ordinarily lies, to the
principal Court having ordinary original
civil
jurisdiction
within
whose
local
jurisdiction such Civil Court in situate:
Provided that-

(a) where appeals lie to more
than one Court, the Appellate Court of
inferior jurisdiction shall be the Court to
which such Court shall be deemed to be
subordinate;

(b) where appeals lie to a Civil
and also to a Revenue Court, such Court
shall be deemed to be subordinate to the
Civil or Revenue Court according to the
nature of the case or proceeding in
connection with which the offence is
alleged to have been committed.

340.
Procedure
in
cases
mentioned in section 195.

(1) When, upon an application
made to it in this behalf or otherwise, any
Court is of opinion that it is expedient in
the interests of justice that an inquiry
should be made into any offence referred to
in clause (b) of sub- section (1) of section
195, which appears to have been committed
in or in relation to a proceeding in that
Court or, as the case may be, in respect of a
document produced or given in evidence in
a proceeding in that Court, such Court
may, after such preliminary inquiry, if any,
as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in
writing;

(c) send it to a Magistrate of the
first class having jurisdiction;

(d) take sufficient security for the
appearance of the accused before such
Magistrate, or if the alleged offence is non-
bailable and the Court thinks it necessary
so to do, send the accused in custody to
such Magistrate; and

(e) bind over any person to
appear and give evidence before such
Magistrate.

(2) The power conferred on a
Court by sub- section (1) in respect of an
offence may, in any case where that Court
has neither made a complaint under sub-
section (1) in respect of that offence nor
rejected an application for the making of
such complaint, be exercised by the Court
to which such former Court is subordinate
within the meaning of sub- section (4) of
section 195.

(3) A complaint made under this
section shall be signed,-

(a) where the Court making the
complaint is a High Court, by such officer
of the Court as the Court may appoint;

(b) in any other case, by the
presiding officer of the Court.

(4) In this section," Court" has
the same meaning as in section 195.

"341. Appeal.

(1)
Any
person
on
whose
application any Court other than a High
Court has refused to make a complaint
under sub- section (1) or sub- section (2) of
section 340, or against whom such a
complaint has been made by such Court,
may appeal to the Court to which such
former Court is subordinate within the
meaning of sub- section (4) of section 195,
and the superior Court may thereupon,
after notice to the parties concerned, direct
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
the withdrawal of the complaint, or, as the
case may be, making of the complaint
which such former Court might have made
under section 340, and if it makes such
complaint, the provisions of that section
shall apply accordingly.

(2) An order under this section, and
subject to any such order, an order under
section 340, shall be final, and shall not be
subject to revision."

343. Procedure of Magistrate
taking cognizance.

(1) A Magistrate to whom a
complaint is made under section 340 or
section 341 shall, notwithstanding anything
contained in Chapter XV, proceed, as far as
may be, to deal with the case as if it were
instituted on a police report.

(2) Where it is brought to the notice
of such Magistrate, or of any other Magistrate
to whom the case may have been transferred,
that an appeal is pending against the decision
arrived at in the judicial proceeding out of
which the matter has arisen, he may, if he
thinks fit, at any stage, adjourn the hearing of
the case until such appeal is decided."

16. Section 195 Cr.P.C. deals with
distinct categories of offences prescribed under
Clauses (a), (b)(i), (b)(ii) and (b)(iii). Section
195(1) mandates a complaint in writing of the
court for taking cognizance of the offences
enumerated in clause (b) thereof. The offences
mentioned in clause (b) relate to giving or
fabricating false evidence or making a false
declaration in any judicial proceeding or
before a court of justice or before a public
servant who is bound or authorized by law to
receive such declaration, and also to some
other offences which have a direct good corelation with the proceedings in a court of
justice.

17. Section 340 Cr.P.C. provides the
procedure for filing complaint; as per the
procedure prescribed, when an application
is made to the Court, or even otherwise, if a
Court is of the opinion that it is expedient
in the interest of justice that an inquiry
should be made into any offence referred to
in Clause (b) of sub Section (1) of Section
195 Cr.P.C. which appears to have been
committed in or in relation to proceedings
in that court or, as the case may be in
respect of a document produced or given in
evidence in a proceeding in that court, such
court may record a finding to that effect
after such preliminary inquiry, if any, as it
thinks necessary.

18. In Pritish versus State of
Maharashtra and others (2002) 1 SCC
253 the Hon'ble Supreme Court has held
that the hub of Section 340 Cr.P.C. is
formation of an opinion by the Court,
before which proceedings were held, that it
is expedient in the interest of justice that an
inquiry should be made into an offence
which appears to have been committed but,
even when the court forms such an opinion
it is not mandatory that the court should
make a complaint. Sub section (1) of
Section 195 Cr.P.C. confers power on the
court to do so, but, it does not mean that the
court should, as a matter of course, make a
complaint. In Iqbal Singh Marwah versus
Meenakshi Marwah 2005(2) SCC 549 the
Constitution Bench of the Hon'ble Supreme
Court has held that under Section 340
Cr.P.C. the Court is not bound to make a
complaint regarding commission of an
offence referred to in Section 195(1)(b), as
the Section is conditioned by the words
"Court is of opinion that it is expedient in
the interest of justice." This shows that
such a course will be adopted only if the
interest of justice requires and not in every
case. This expediency will normally be
judged by the Court by weighing not the
magnitude of injury suffered by the person
3 All. Sukhraj Vs. State of U.P. & Anr.
1141
affected
by
such
forgery
or
forged
document, but having regard to the effect or
impact, such commission of offence has
upon administration of justice. It is possible
that such forged document or forgery may
cause a very serious or substantial injury to
a person in the sense that it may deprive
him of a very valuable property or status or
the like, but such document may be just a
piece of evidence produced or given in
evidence in Court, where voluminous
evidence may have been adduced and the
effect of such piece of evidence on the
broad concept of administration of justice
may be minimal. In such circumstances, the
Court may not consider it expedient in the
interest of justice to make a complaint.

19. In Pritish (Supra), Iqbal Singh
Marwah (Supra), and also in the State of
Goa Vs. Jose Maria Albert Vales @
Robert Vales, (2018) 11 SCC 659, the
Hon'ble Supreme Court has held that the
Court at the stage envisaged in Section 340
of the Code would not decide the guilt or
innocence of the party against whom the
proceedings are to be instituted before the
Magistrate and at that stage the Court is to
be examine as to whether it was expedient
in the interests of justice that an inquiry
should be made into any offence affecting
the administration of justice and that no
expression of the guilt or innocence of the
persons should be made while passing the
order under Section 340 of the Code.

20. So far as holding of a preliminary
enquiry as contemplated by Section 340
Cr.P.C. is concerned in Pritish (supra) it
was held that the court is empowered to
hold a preliminary enquiry although it is
not peremptory that such an enquiry should
be
held
and
even without
such
a
preliminary enquiry the court can form an
opinion when it appears to the court that an
offence of the nature contemplated by
Section 195(1)(b) has been committed in
relation to a Court. In Pritish (supra) it was
also held that in such preliminary enquiry,
if held, an opportunity to the would-be
accused before the filing of the complaint is
not mandatory. However, the Hon'ble Apex
Court in Sharad Pawar versus Jagmohan
(2010) 15 SCC 290 observed that it was
necessary to conduct a preliminary inquiry
under Section 340 Cr.P.C. and to afford an
opportunity of hearing to the would-be
accused. Learned A.G.A. has placed before
this Court the judgment in State of Punjab
versus Jasbir Singh (2020) 12 SCC 96
wherein the Hon'ble Supreme Court has
referred the matter to the Larger Bench for
consideration of the questions as to whether
Section 340 Cr.P.C. mandates a preliminary
inquiry and an opportunity of hearing to the
would-be accused, before a complaint is
made under Section 195 of the Code, by a
Court.

21. Section 341 Cr.P.C. provides
remedy of appeal to any person on whose
application a court, other than the High
Court, has refused to make a complaint
under sub section (1) or sub section (2) of
Section 340 Cr.P.C. as also to a person
against whom such a complaint has been
made by such court. The appeal lies to the
court to which the court passing the order is
subordinate. In view of Section 341 Cr.P.C.,
if on the application filed under Section
340 Cr.P.C. the court passes an order for
making a complaint against a person, such
person may appeal to the next higher court.

22. In the present case, the opposite
party no. 2 has filed an application under
Section 340 Cr.P.C. upon which the
Magistrate has passed the order that the
same shall be decided alongwith the
Complaint Case No. 19 of 2018. The
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate has neither recorded any finding
that in his opinion it is expedient in the
interests of justice that an inquiry should be
made in the offence under Section 195
(1)(b) Cr.P.C. nor has made a complaint of
such an offence in writing against the
applicant. It is also not the submission of
the learned counsel for the applicant that
the Magistrate has refused to make a
preliminary inquiry as contemplated by
Section 340 Cr.P.C. or that any opportunity
of hearing, in such preliminary enquiry, if
and when held, would not be given to the
applicant.

23. So far as the submission of the
learned counsel for the applicant on merits
of the application under Section 340 Cr.P.C.
is concerned, it is for the court concerned,
at the first instance, to consider and decide
the said application.

24. A parallel enquiry into the
application under Section 340 by this Court
under Section 482 Cr.P.C. is neither proper
nor
feasible.
The
correctness
or
genuineness of the averments in the
application under Section 340 Cr.P.C. being
question of fact can best be determined by
the Court concerned for the purposes of
making or not making a complaint by such
Court to the court concerned. If the
applicant feels aggrieved from an order of
the Magistrate making a complaint against
him, Section 341 Cr.P.C. provides for
statutory remedy of appeal which it would
be open for the applicant to avail, if
required and so advised.

25. It is by now well settled that a
power of quashing a criminal proceeding
should be exercised very sparingly and with
circumspection and that too in the rarest of
the rare cases. The court will not be justified
in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the F.I.R. or the
complaint, as has been held in so many cases;
to refer few, State of Haryana versus
Bhajanlal 1992 (1) SCC 335, Girish Kumar
Suneja versus C.B.I. (2017) 14 SCC 809.

26. Recently in Google India (P) Ltd.
Vs. Visaka Industries, (2020) 4 SCC 162
the Hon'ble Supreme Court reiterated the
contours of the jurisdiction of the High Court
under Section 482 Cr.P.C. as also the scope of
the expression ''rarest of rare of cases'.
Paragraphs 42, 43 and 78 read as under:-

"42.
The
contours
of
the
jurisdiction of the High Court under Section
482 is no longer res integra. We would think
that it is sufficient if we only advert to the
judgment of this Court in State of Haryana
and others v. Bhajan Lal and others17. This
Court held as follows:

"102. 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
3 All. Sukhraj Vs. State of U.P. & Anr.
1143
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.

103. We also give a note of caution
to the effect that the power of quashing a
criminal proceeding should be exercised very
sparingly and with circumspection and that
too in the rarest of rare cases; that the court
will not be justified in embarking upon an
enquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR
or the complaint and that the extraordinary or
inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its
whim or caprice."

43. As to what is the scope of the
expression "rarest of rare cases" indicated in
paragraph 103, we may only refer to the
judgment of this Court in Jeffrey J. Diermeier
and another v. State of West Bengal and
another18 wherein the law laid down by a
Bench of three Judges in Som Mittal v. Govt.
of Karnataka19 has been referred to:

"23. The purport of the expression
"rarest of rare cases", to which reference was
made by Shri Venugopal, has been explained
recently in Som Mittal (2) v. Govt. of
Karnataka [(2008) 3 SCC 574 : (2008) 1 SCC
(L&S) 910 : (2008) 2 SCC (Cri) 1] .
Speaking for a Bench of three Judges, the
Hon'ble the Chief Justice said: (SCC pp. 58081, para 9) (2010) 6 SCC 243 (2008) 3 SCC
753.

"9. When the words ''rarest of rare
cases' are used after the words ''sparingly
and with circumspection' while describing
the scope of Section 482, those words
merely emphasise and reiterate what is
intended to be conveyed by the words
''sparingly and with circumspection'. They
mean that the power under Section 482 to
quash proceedings should not be used
mechanically or routinely, but with care
and caution, only when a clear case for
quashing is made out and failure to
interfere would lead to a miscarriage of
justice. The expression ''rarest of rare cases'
is not used in the sense in which it is used
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
with reference to punishment for offences
under Section 302 IPC, but to emphasise
that the power under Section 482 CrPC to
quash the FIR or criminal proceedings
should
be
used
sparingly
and
with
circumspection." (Emphasis supplied)

78. ".....................It was in these
circumstances, this Court took the following
view in regard to the manner in which the
matter must be approached when a party
approaches High Court under Section 482 of
the Cr.PC:

"28. The High Court, in exercise
of its jurisdiction under Section 482 CrPC,
must make a just and rightful choice. This is
not a stage of evaluating the truthfulness or
otherwise of the allegations levelled by the
prosecution/complainant
against
the
accused. Likewise, it is not a stage for
determining how weighty the defences
raised on behalf of the accused are. Even if
the accused is successful in showing some
suspicion or doubt, in the allegations
levelled by the prosecution/complainant, it
would be impermissible to discharge the
accused before trial. This is so because it
would result in giving finality to the
accusations
levelled
by
the
prosecution/complainant, without allowing
the prosecution or the complainant to adduce
evidence to substantiate the same. The
converse is, however, not true, because even
if trial is proceeded with, the accused is not
subjected to any irreparable consequences.
The accused would still be in a position to
succeed by establishing his defences by
producing evidence in accordance with law.
There is an endless list of judgments
rendered by this Court declaring the legal
position
that
in
a
case
where
the
prosecution/complainant
has
levelled
allegations bringing out all ingredients of the
charge(s) levelled, and have placed material
before the Court, prima facie evidencing the
truthfulness of the allegations levelled, trial
must be held.

30. Based on the factors canvassed
in the foregoing paragraphs, we would
delineate the following steps to determine
the veracity of a prayer for quashment raised
by an accused by invoking the power vested
in the High Court under Section 482 CrPC:

30.1.Step
one:
whether
the
material relied upon by the accused is
sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable
quality?

30.2.Step
two:
whether
the
material relied upon by the accused would
rule out the assertions contained in the
charges levelled against the accused i.e. the
material is sufficient to reject and overrule
the factual assertions contained in the
complaint i.e. the material is such as would
persuade a reasonable person to dismiss
and condemn the factual basis of the
accusations as false?

30.3.Step
three:
whether
the
material relied upon by the accused has not
been
refuted
by
the
prosecution/complainant;
and/or
the
material is such that it cannot be justifiably
refuted by the prosecution/ complainant?

30.4.Step
four:
whether
proceeding with the trial would result in an
abuse of process of the court, and would
not serve the ends of justice?

30.5. If the answer to all the steps
is in the affirmative, the judicial conscience
of the High Court should persuade it to
quash
such
criminal
proceedings
in
exercise of power vested in it under Section
482 CrPC. Such exercise of power, besides
doing justice to the accused, would save
precious court time, which would otherwise
be wasted in holding such a trial (as well as
proceedings arising therefrom) specially
when it is clear that the same would not
3 All. Aashish Kumar Vs. State of U.P. & Anr.
1145
conclude
in
the
conviction
of
the
accused."(Emphasis supplied)"

27. Learned counsel for the applicant
has not been able to demonstrate before this
Court as to under which provision of law, the
applicant has a right for disposal of the
application under Section 340 Cr.P.C. at this
stage, as also that the Court had no
jurisdiction to direct consideration of the
application at the time of disposal of the
applicant's Complaint Case No. 19 of 2018,
on merits.

28. It could also not be established by
the learned counsel for the applicant that any
legal right of the applicant has been adversely
affected by the order passed by the
Magistrate nor that such an order or
proceeding amounts to an abuse of the
process of the Court.

29. I am of the considered view that it
would not be in the ends of justice that the
application under Section 340 Cr.P.C. be not
enquired into by the court concerned as per
law.

30. For the reasons aforesaid, as also
that the Code of Criminal Procedure is a
Complete Code, which provides for a remedy
of an appeal to the person against whom an
order making a complaint is passed, this
Court refuses to invoke its extraordinary
jurisdiction under Section 482 Cr.P.C. in the
present matter. The application under Section
482 Cr.P.C. is hereby rejected.

31. It is clarified that this Court has
not adjudicated nor commented on the
merits of the application under Section 340
Cr.P.C.

32. No orders as to costs.
----------
(2021)03ILR A1145
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2021

BEFORE

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

Application U/S 482 No. 16768 of 2020

Aashish Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Adarsh Kumar, Sri Dipankar Chaudhari

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 498A - Husband or
relative of husband of a women subjecting
her to cruelty, Sections 323 - punishment
for voluntry causing hurt , Sections 494 -
Marrying again during lifetime of husband
or wife , Sections 506 - Punishment for
criminal intimidation , 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 - 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. (Para - 12,26)

Applicant is husband of opposite party no.2
- opposite party no.2 lodged an F.I.R.
against seven named accused persons -
allegation - marriage of opposite party no.2
solemnized with the applicant - After her