# Surendra Kumar Singh & Ors v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-08
- **Case number:** Criminal Misc. Application No.17753 of 2005
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-kumar-singh-ors-v-state-of-u-p-anr-44638
- **Pages:** 5

## Headnote

A. Criminal Law -Criminal Procedure Code,
1973 - Section 482 of the Cr.P.C. - Gound -
Malicious
Prosecution-Applicants
summoned to face trial u/s 435 IPC by the
Magistrate treating Protest petition as
Complaint-
Strong
circumstances
to
indicate
that
the
incident
remained
unwitnessed by anybody and implication of
the accused is just a result of prior enmity-
Delay in lodging F.I.R. wholly unexplained
phenomenon which shall go to the root of
the matter- Matter falls in category no.(7)
mentioned in case of State of Haryana Vs.
Bhajan Lal 1992 SCC(Cr.) 42.

Proceedings are inspired by malice on the part
of complainant and the version contained
116 INDIAN LAW REPORTS ALLAHABAD SERIES
therein is full of high improbabilities and the
continuation of the proceedings on that basis
is likely to result in abuse of court's process.
(Para 6,7 & 8)

Application u/s 482 Cr.P.C allowed. (E-3)

List of cases cited: -

1.St. of Haryana Vs Bhajan Lal (1992) SCC(Cr.)
42

## Text

3 All. Surendra Kumar Singh & Ors.Vs. State of U.P. & Anr.
115
can never be allowed to proceed in the view
of the decision of the Supreme Court in the
case of State of Haryana & Ors. Vs.
Bhajan Lal & Ors. (supra) as followed in
M/s. Eicher Tractor Ltd. & Ors. Vs.
Harihar Singh & Anr. (supra), however, to
reach that conclusion, the facts must be
unequivocally clear to the court. At present,
there is sufficient doubt as to which version of
the same event is correct. Therefore, the plea
of mala fide prosecution is also rejected, at
this stage.

17. Further, in this regard, it also
cannot be lost sight that in case of the coaccused Shadab, the summoning order
that is under challenge in the present
proceedings, has been upheld by the
lower revisional court and that order has
not been assailed by that co-accused
Shadab. Though the applicants may not
be bound by that order, however, in
exercise of inherent jurisdiction under
Section 482 Cr.P.C., the court cannot be
unmindful of that order having been
attained
finality.
In
such
fact
circumstances and background of legal
remedy availed by the said Shadab, he is
likely to stand trial on the same fact
allegations. For that reason also, I am
disinclined to exercise the inherent
jurisdiction of this Court, on behalf of
other co-accused persons, facing the same
fact allegations. The interest of justice
and concern to prevent abuse of process
of court appears to lie not in quashing the
complaint at this stage but rather in
allowing the complaint to proceed further.

18.

Accordingly,
the
present
application lacks merit. The prayer made
to quash the complaint is declined.

19. However, in case the applicants
appear before the learned court below
within a period of 45 days and apply for bail,
the learned court below shall deal with their
bail application as expeditiously as possible,
strictly in accordance with law, without
being influenced by any observations made
in this order.

20. With the aforesaid observations,
the present application is disposed of.
----------
(2019)11ILR A115

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Application No.17753 of 2005
u/s 482 Cr.P.C.

Surendra Kumar Singh & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ranjeet Singh

Counsel for the Opposite Parties:
A.G.A., Sri M.K. Tiwari.

A. Criminal Law -Criminal Procedure Code,
1973 - Section 482 of the Cr.P.C. - Gound -
Malicious
Prosecution-Applicants
summoned to face trial u/s 435 IPC by the
Magistrate treating Protest petition as
Complaint-
Strong
circumstances
to
indicate
that
the
incident
remained
unwitnessed by anybody and implication of
the accused is just a result of prior enmity-
Delay in lodging F.I.R. wholly unexplained
phenomenon which shall go to the root of
the matter- Matter falls in category no.(7)
mentioned in case of State of Haryana Vs.
Bhajan Lal 1992 SCC(Cr.) 42.

Proceedings are inspired by malice on the part
of complainant and the version contained
116 INDIAN LAW REPORTS ALLAHABAD SERIES
therein is full of high improbabilities and the
continuation of the proceedings on that basis
is likely to result in abuse of court's process.
(Para 6,7 & 8)

Application u/s 482 Cr.P.C allowed. (E-3)

List of cases cited: -

1.St. of Haryana Vs Bhajan Lal (1992) SCC(Cr.)
42
(Delivered by Hon'ble Karuna Nand
Bajpayee J. )

1. This application u/s 482 Cr.P.C.
has been moved on behalf of applicants
seeking the quashing of complaint dated
27.10.2004 and impugned order dated
16.9.2005 as well as entire proceedings
arising out of Case No.1847 of 2005
(Surendra Pal vs. Ram Singh and others),
u/s 435 I.P.C. pending in the court of
Chief Judicial Magistrate, Bijnore.

2. List has been revised. Despite
repeated calls none has appeared on
behalf of opposite party no.2 to oppose
this application. Learned A.G.A. is
present. This application is of year 2005.
In the wake of heavy pendency of cases in
this Court where dockets are already
bursting on their seams there is no
justifiable reason to further procrastinate
the matter. This Court, therefore, deems it
fit to proceed in the matter with the
assistance
of
the
learned
AGA
representing the State.

3. Heard learned counsel for the
applicants and learned A.G.A.

4. It appears from the perusal of the
record that an F.I.R. under section 435
Cr.P.C. was lodged by the complainant
but after investigating into the case a final
report was submitted. The complainant
was summoned who protested against the
submission of final report and as it was
within the powers of Magistrate to do so,
he took the cognizance in the matter
treating the protest as complaint and
proceeded in the matter following the
right procedure. During the course of
inquiry the complainant was examined
under section 200 Cr.P.C. and then under
section 202 Cr.P.C. P.W.1, Omprakash,
P.W.2, Rohtash Kumar and P.W.3,
Gyanchand were examined. On the basis
of the material that was adduced during
the course of enquiry the Court below
thought it fit to proceed to summon the
accused in order to face the trial. The
version that appears to have been brought
forward by the complainant is to the
effect that there were some prior enmity
going on between the complainant and the
accused
persons.
On
the
day
of
occurrence i.e. to say on 12.3.2004 at
about 4:00 a.m. when the complainant
and his brother Rajendra Kumar had gone
to attend the call of nature he found that
co-accused Ram Singh, Dhyan Singh,
Surendra Kumar, Mahavir and Veerpal
were putting fire to the sugarcane crop
that were there in his fields. The
complainant and his brother raised hue
and cry which attracted a number of
witnesses
which
included
witnesses
Rohtash
Singh,
Rampal
Singh,
Omprakash, Gyan Chandra and Satyendra
etc. who arrived on the spot and helped
quenching the fire. This version has been
by and large reiterated by witnesses
Omprakash, Gyanchandra and Rohtash
who have been examined under section
202 Cr.P.C. on behalf of complainant.
Being satisfied by the material adduced,
the Court proceeded to summon the
accused persons to face the trial under
section 435 Cr.P.C.. Submission of the
counsel in defense of the applicant is that
3 All. Surendra Kumar Singh & Ors.Vs. State of U.P. & Anr.
117
story as has been alleged on behalf of
complainant is highly improbable and the
witnesses who claimed to have seen the
occurrence are shear chance witnesses
and their presence on the spot appears to
be suffering with the element of high
improbability. It has been contended that
the incident is said to have taken place at
about 4:00 a.m. in the morning. It is too
much of coincidence to believe that just
the moment when the complainant and his
brother had gone near their own fields, it
was just at that point of time that the
accused came over there and set the crop
ablaze. According to the counsel if the
complainant was already present on the
spot, there was no reason for the accused
to have indulged in this act in their
presence. They could have done it much
earlier
throughout
the
night
which
preceded the time of occurrence and they
could also have committed this offence
after the complainant had left the spot.
Submission is that such kind of allegation
is militating against the normal ways of
conduct which is to screen oneself from
being seen by others committing the
crime. The very fact that the said
occurrence is said to have taken place in
the wee hours shows that whosoever has
done it had taken care of to conceal
himself from being witnessed by others.
In such circumstances, the claim of the
complainant that the occurrence took
place in the presence of multiple
witnesses is by itself a highly unnatural
claim and is not worth placing reliance
upon. Further submission is that witnesses
Gyanchandra and Rohtash who claimed
to have seen the accused persons setting
the crop ablaze again suffers the same
criticism of high improbability. It has also
been submitted that putting fire into the
crop does not take much time and if what
has been alleged was true then task of
setting ablaze would have ended within
minutes and therefore it further appears to
be a very incredible, unnatural and
improbable story that at that brink of time
when the accused were setting ablaze the
crop the other witnesses would also have
landed on the spot and could find the
occasion
to
have
seen
accused
committing the offence in question in
their presence. Submission is that the
presence of the witnesses in the wee
hours at 4:00 a.m. in the morning is a
claim which does not inspire confidence
and it appears that if at all there was some
crop which suffered some loss by fire
then the implication of the accused has
been made only as a result of wild guess
and as a result of conjectures alone. In the
same context the counsel has further
added the argument about the delay in
lodging F.I.R.. The incident is said to
have taken place on 12.3.2004 while the
F.I.R.
was
lodged
on
16.3.2004.
Submission is that this yawning gap and
the huge delay in lodging F.I.R. remains
wholly
unexplained
on
behalf
of
complainant. If the incident had taken
place
on
12.3.2004
there
was
no
justification to wait for so long and lodge
the F.I.R. after so much of delay.
Submission is that this yawning gap in
lodging the F.I.R. is well consistent with
the probability that this time was
consumed in finding out the possible
offenders and ultimately when after
confabulation
and
consultations
the
suspicion matured against the present
applicants, the F.I.R. was lodged. In
addition to it contention of the counsel is
that initially after investigation the
allegations were not found substantiated
by investigating officer and as a result of
the same the final report was also
submitted.
The
Court
below
while
rejecting the final report did not at all
118 INDIAN LAW REPORTS ALLAHABAD SERIES
consider the circumstances and the material
collected by investigating officer which
persuaded him to file his final report in
favour of accused. The exercise of
summoning the accused has been done in a
rather mechanical manner and lacks actual
application of judicial mind. Argument is
that the continuation of the proceedings
against the applicants will result in nothing
except abuse of court's process.

5. Perused the record in the light of
submissions made at the bar.

6. Perusal of the record shows that
the time of incident as is said to have
taken place was at 4:00 a.m. in the
morning. This Court finds substance in
the submissions raised by the counsel that
the presence of the complainant and his
brother at that hour cannot be said to be a
very natural presence. The presence of
other witnesses also appears to be merely
coincidental and not natural. The claim of
the complainant that all of them had the
occasion to witness the accused setting
ablaze the crop also appears to be a highly
improbable claim and it is too much to
believe such a coincidence. Delay in
lodging F.I.R. is also wholly unexplained
phenomenon which shall go to the root of
the matter. Submission of the counsel
about the confabulations made during this
period appears to have substance and it is
not difficult to see that the implication of
the accused appears to be more as a result
of wild conjectures based on previous
enmity rather than on any basis of truth.
There are strong circumstances to indicate
that the incident remained unwitnessed by
anybody and implication of the accused is
just a result of prior enmity and in such
circumstances this Court is of the view
that the application deserves to be
allowed.

7. So far as the law on the point of
quashing criminal proceedings against the
accused is concerned this aspect has been
expatiated upon by Hon'ble Supreme
Court in a number of cases. It would be
necessary to site the relevant observations
made by Apex Court in perspective the
law laid down by Hon'ble Supreme Court
in the case of State of Haryana Vs.
Bhajan Lal 1992 SCC(Cr.) 426, in
which certain categories have been
recognized on the basis of which the
criminal proceeding against a certain
party or the accused may be quashed. It
was observed by the Hon'ble Apex Court
in Bhajan Lal's case as follows:-

"The following categories can
be stated by way of illustration wherein
the extra-ordinary power under Article
226 or the inherent powers under Section
482 of the Code of Criminal Procedure
can be exercised by the High Court 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
3 All. Shyam Lal Rajput & Ors.Vs. State of U.P. & Anr.
119
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."

8. In the considered view of this
Court this matter falls in category no.(7)
mentioned hereinabove. This Court finds
reason to hold that the proceedings in
question are inspired by malice or the part
of complainant and the version contained
therein is full of high improbabilities and
the continuation of the proceedings on
that basis is likely to result in abuse of
court's process, and therefore, the entire
proceeding of complaint in question is
liable to be quashed.

9. In this view of the matter this
application is allowed and the entire
proceeding of complaint in question
against
the
accused-applicants
stand
quashed.

10. A copy of this order be certified
to the lower court concerned forthwith.
----------
(2019)11ILR A119

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

U/S 482 No. 27412 of 2019

Shyam Lal Rajput & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Samit Gopal, Sri Shakti Shanker
Tiwari, Sri Subhash Chandra Tiwari

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

A. Criminal Law -Criminal Procedure
Code, 1973 - Section 482 - Scope -
Suicide Note- The genuineness of the
suicide
note
can
only
be
finally