# Sushri Shreya Verma & Ors v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-09
- **Case number:** Application U/S 482. No. 3307 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushri-shreya-verma-ors-v-state-of-u-p-ors-51839
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Sections
155(2),190,195(1) & 482 - Inherent
power - Indian Penal Code, 1860 -
Section 171-H - Illegal payments in
connection with an election, Section 188
-
Disobedience
to
order
duly
promulgated by public servant - Noncognizable offence - Prior permission -
Prima facie case - Abuse of process -
Quashing of proceedings - Police have
no right or jurisdiction to investigate the
matter, without prior permission of the
Magistrate, who has got jurisdiction to
try those offences - when a prosecution
at the initial stage is asked to be
quashed, the test to be applied by the
court
is
as
to
whether
the
uncontroverted
allegations
as
made
prima facie establish the offence -
Quashing of the criminal proceedings is
an exception than a rule - Power of High
Court is very wide but should be
exercised very cautiously to do real and
substantial justice for which the court
alone exists. (Para - 26,28,35)

Applicant
No.1's
father
was
contesting
Vidhanshabha Election, 2022 - 50 persons,
including applicant Nos. 1 and 2, were
canvassing
in
support
of
without
prior
permission - FIR lodged against applicants for
alleged offences under Sections 171H and 188
IPC - Applicants sought quashing of charge
sheet and summoning order. (Para 3,12-13)

HELD: - Trial court while summoning the
applicants by impugned order has totally failed
to appreciate the factual and legal aspect of the
matter. Entire charge sheet filed by police
vitiated by serious incurable defects and
procedural
irregularities.
Impugned
charge
sheet and summoning order quashed due to
lack of jurisdiction and non-compliance with
statutory requirements. (Para 28, 36-38)

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

List of Cases cited:
4 All. Sushri Shreya Verma & Ors. Vs. State of U.P. & Ors.
587

## Text

586 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Sessions Judge, Court No.9,
Gonda in Sessions Trial No.53/2016, arising
out of Case Crime No.203 of 2012, under
Section 307 I.P.C., Police Station Motiganj,
District Gonda is hereby set aside and
reversed.

18. Accordingly, in the interest of
justice, the applicant is given a last
opportunity to appear before the learned
concerned trial court on or before 15.04.2024
alongwith certified copy of this order and
move an application for cross examination of
the witness P.W.-1Sushil Shukla and the
learned trial court is directed to summon the
witness P.W.-1Sushil Shukla for cross
examination on 19.04.2024, the date fixed or
any other date fixed by the learned trial court.

19. It is made clear that it is the last
opportunity provided to the applicant to cross
examine the P.W.-1 Sushil Shukla, failing
which, the benefit of this order will come to
an end.

20. With the aforesaid observation and
direction, the instant application stands
allowed.
----------
(2024) 4 ILRA 586
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.04.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 3307 of 2024

Sushri Shreya Verma & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Mukesh Kumar Tewari, Sri Bhupender
Pal Singh
Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Sections
155(2),190,195(1) & 482 - Inherent
power - Indian Penal Code, 1860 -
Section 171-H - Illegal payments in
connection with an election, Section 188
-
Disobedience
to
order
duly
promulgated by public servant - Noncognizable offence - Prior permission -
Prima facie case - Abuse of process -
Quashing of proceedings - Police have
no right or jurisdiction to investigate the
matter, without prior permission of the
Magistrate, who has got jurisdiction to
try those offences - when a prosecution
at the initial stage is asked to be
quashed, the test to be applied by the
court
is
as
to
whether
the
uncontroverted
allegations
as
made
prima facie establish the offence -
Quashing of the criminal proceedings is
an exception than a rule - Power of High
Court is very wide but should be
exercised very cautiously to do real and
substantial justice for which the court
alone exists. (Para - 26,28,35)

Applicant
No.1's
father
was
contesting
Vidhanshabha Election, 2022 - 50 persons,
including applicant Nos. 1 and 2, were
canvassing
in
support
of
without
prior
permission - FIR lodged against applicants for
alleged offences under Sections 171H and 188
IPC - Applicants sought quashing of charge
sheet and summoning order. (Para 3,12-13)

HELD: - Trial court while summoning the
applicants by impugned order has totally failed
to appreciate the factual and legal aspect of the
matter. Entire charge sheet filed by police
vitiated by serious incurable defects and
procedural
irregularities.
Impugned
charge
sheet and summoning order quashed due to
lack of jurisdiction and non-compliance with
statutory requirements. (Para 28, 36-38)

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

List of Cases cited:
4 All. Sushri Shreya Verma & Ors. Vs. State of U.P. & Ors.
587
1. Sachida Nand Singh & anr. Vs St. of Bihar &
anr., (1998) 2 SCC 493

2. Daulat Ram Vs St. of Punj., AIR 1962 SC
1206

3. M.S. Ahlawat Vs St. of Har. & anr.; AIR 2000
SC 168

4. Inder Mohan Goswami Vs St. of Uttaranchal
(2007)12 SCC 1

5. Lalankumar Singh & ors. Vs St. of Maha.,
2022 SCC Online SC 1383

6. St. of Ha. Vs Bhajan Lal, 1992 Supp (1) SCC
335

7. R.P. Kapoor Vs St. of Punj., AIR 1960 S.C.
866

8. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

9. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283

10. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maha., AIR 2021 SC 1918

11. S.W. Palankattkar & ors. Vs St. of Bihar,
2002 (44) ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Mukesh Kumar Tewari,
learned counsel for the applicants, Shri
Ashok Kumar Singh, learned A.G.A-I for
the State-opposite parties and perused the
material placed on record.

2. The instant application under
Section 482 Cr.P.C. has been filed on
behalf of the applicants with a prayer to
quash the impugned charge sheet dated
27.03.2022
alongwith
impugned
summoning order dated 22.09.2023 arising
out of Case Crime no.0045/2022 under
Section 188, 171-H I.P.C., Police StationMohammadpur Khala, District-Barabanki
as well as the entire proceeding of Criminal
Case No.3149/2023 (State vs. Sushri
Sherya Verma and others) pending before
the court of Additional Chief Judicial
Magistrate/F.T.C. Court No.38, Barabanki
with
a
further
prayer
to
stay
the
proceedings of the aforesaid case.

3. Learned counsel for the applicants
submits that the father of the applicant
No.1 was contesting on the post of Member
of Legislative Assembly in Vidhansabha
Elections, 2022 from the constituency of
Kursi
District-Barabanki.
During
that
period on 29.01.2022, an F.I.R. was lodged
by the opposite party no.3, the then Incharge, Mobile Squad Vidhansabha Kursi,
District-Barabanki against the applicants
alleging therein that due to ongoing
elections of Vidhansabha in DistrictBarabanki, the model code of conduct was
enforced and on 28.01.2022 the applicant
Nos.1 and 2 and about 50 other persons
were canvassing in the election in Village
Bhund
Hamlet
Sewali
Gram
Sabha
Aalhemau and Jyoti without permission
and the video of the canvassing programme
went viral, which has been organized by
applicants and others.

4. Learned counsel for the applicants
further submits that on 01.02.2022, the
Investigating
Officer
recorded
the
statement of the complainant, wherein he
reiterated the same version of the F.I.R. and
from perusal of the same no offence is
made out against the applicants and the
statements given by the complainant are
not trust worthy and same is based on false
and concocted facts.

5. Learned counsel for the applicants
further submits that the Investigating
Officer prepared the impugned charge sheet
588 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 27.03.2022 and on 22.09.2023, the
learned trial court without applying its
judicial
mind,
took
cognizance
and
summoned the applicants to face trial on
the basis of police report.

6. Learned counsel for the applicants
further submits that
the F.I.R. was
registered under Sections 171 H and 188
I.P.C., which is without jurisdiction as
Section 171 H of I.P.C. is described as non
cognizable offence in the penal code and
Section
195(1)
Cr.P.C.
specifically
provides that no court shall take cognizance
of any offence under Sections 172 to 188
except upon a complaint in writing of the
public servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate. Thus, taking
cognizance under Section 188 I.P.C. is also
without jurisdiction.

7. Learned counsel for the applicants
further submits that as per Section 2(d)
Cr.P.C., the opposite party no.3 had no
right to lodge the F.I.R. for offences as
mentioned above rather he had to file the
complaint only before the concerned court.
He further submitted that not only the
F.I.R.
was
registered
but
also
the
investigation was carried out and charge
sheet
was
submitted
without
any
jurisdiction.

8. Learned counsel for the applicants
further submits that even if the entire story
of the prosecution is accepted as true (only
for the sake of argument though not
admitted), Section 171 H of I.P.C. is not
made out against the applicants.

9. Learned counsel for the applicants
further submits that as per Section 190
Cr.P.C., it is evident that the concerned
Magistrate can take cognizance of any
offence on three conditions i.e. (i) Upon
receiving a complaint of facts, (ii) Upon a
police report, and (iii) Suo-moto.

10. Learned counsel for the applicants
further submits that the impugned order
dated 22.09.2023 passed by the learned
Additional Chief Judicial Magistrate/F.T.C.
Court No.38, Barabanki, by which the
applicants were summoned, is also non
speaking as the Magistrate has not
considered any material available before
him while summoning the applicants to
face the trial. As such, the impugned order
dated 22.09.2023 on the face of record
appears to be unjustified, arbitrary, illegal
and is passed without application of
judicial mind, therefore, the same is liable
to be set aside by this Court and the present
application under Section 482 Cr.P.C. is
liable to be allowed.

11. On the other hand, learned A.G.A.
for the State opposed the argument
advanced by learned counsel for the
applicants and submits that the impugned
summoning order dated 22.09.2023 is
rightly passed and no interference by this
Court is required in the instant matter,
therefore, the instant application is liable to
be dismissed at this stage only.

12. On careful perusal of the
averments made in this application under
Section 482 Cr.P.C. as well as after hearing
the learned counsel for the parties, the
factual matrix disclose that the o the
opposite party no.3, the then In-charge,
Mobile Squad Vidhansabha Kursi, DistrictBarabanki had lodged an F.I.R. against the
applicants alleging therein that applicant
No.1 whose father, namely-Rakesh Verma
was contesting election for the post of
Member of Legislative Assembly in the
Vidhanshabha Election, 2022 and model
4 All. Sushri Shreya Verma & Ors. Vs. State of U.P. & Ors.
589
code of conduct was enforced in the area.
On 28.01.2022 the applicant Nos. 1 and 2
alongwith 50 persons were canvassing in
support of Rakesh Verma without any prior
permission.

13. First of all, it would be relevant to
quote Section 195(1) Cr.P.C., which is
being reproduced hereunder:-

"195(1) Cr.P.C. :- 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 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 subclause (i) or sub-clause (ii),

[except on the complaint in
writing of that Court or by such officer of
the Court as that Court may authorise in
writing in this behalf, or of some other
Court to which that Court is subordinate.]
[Substituted by Act 2 of 2006, Section 3 for
"except on the complaint in writing of that
Court, of of some other Court to which that
Court is subordinate" (w.e.f. 16-4-2006).]"

14. From perusal of the aforesaid
Section 195 (1) Cr.P.C., it is clear that the
F.I.R. was registered without jurisdiction as
Section 171 H of I.P.C. is described as a
non-cognizable offence in the penal code
whereas it is specifically mentioned that no
Court shall take cognizance of any offence
under Sections 172 to 188 I.P.C. except
upon a complaint in writing of the public
servant concerned or of some other public
servant to whom he is administratively
subordinate. Thus, taking cognizance under
Section
188
I.P.C.
is
also
without
jurisdiction.

15. It would further be relevant to
quote Section 2(d) Cr.P.C. which is being
reproduced hereunder:-

""complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report."
590 INDIAN LAW REPORTS ALLAHABAD SERIES

16. From perusal of the aforesaid
Section 2(d) Cr.P.C., it is clear that the
opposite party no.2 had no right to lodge
the F.I.R. for offences as mentioned above
rather he had to file the complaint only before
the concerned Magistrate.

17. It would also be relevant to quote
Section 171 H of IPC, which is being
reproduced hereunder:-

"171H.
Illegal
payments
in
connection with an election "Whoever
without the general or special authority in
writing of candidate incurs or authorises
expenses on account of the holding of any
public meeting, or upon any advertisement,
circular or publication, or in any other way
whatsoever for the purpose of promoting or
procuring the election of such candidate,
shall be punished with fine which may extend
to five hundred rupees.

PROVIDED that if any person
having incurred any such expenses not
exceeding the amount of ten rupees without
authority obtains within ten days from the
date on which such expenses were incurred
the approval in writing of the candidate, he
shall be deemed to have incurred such
expenses with the authority of the candidate."

18. From perusal of the aforesaid
Section 171 H of I.P.C., it is clear that
only a person other than the candidate of
an election, can be made accused under
Section 171 H of I.P.C. Therefore, there
is substantial merit in the contention of
the learned counsel for the applicant that
the offence under Section 171 H of I.P.C.
as made out would not lie.

19. It would also be relevant to quote
Section 190 Cr.P.C., which is being
reproduced hereunder:-

"190. Cognizance of offences by
Magistrates.

(1)Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under sub-section (2), may take cognizance
of any offence -

(a)upon receiving a complaint of
facts which constitute such offence;

(b)upon a police report of such
facts;

(c)upon
information
received
from any person other than a police officer
or upon his own knowledge, that such
offence has been committed.

(2)The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

20. From perusal of the aforesaid
Section 190 Cr.P.C., it is clear that the
concerned magistrate can take cognizance
of any offence on three condidtions i.e. (i)
Upon receiving a complaint of facts, (ii)
Upon a police report, and (iii) Suo-moto.

21. Hon'ble the Supreme Court in the
case of Sachida Nand Singh and Another
Vs. State of Bihar and Another; (1998) 2
SCC 493 was pleased to observe at para 7
as under:-

"Even if the clause is capable of
two interpretation we are inclined to
choose the narrower interpretation for
obvious reasons. Section 190 of the Code
empowers "any magistrate of the first
4 All. Sushri Shreya Verma & Ors. Vs. State of U.P. & Ors.
591
class" to take cognizance of "any offence"
upon receiving a complaint, or police
report or information or upon his own
knowledge. Section 195 restricts such
general powers of the magistrate, and the
general right of a person to move the Court
with a complaint is to that extent curtailed.
It
is
a
well-recognised
canon
of
interpretation that provision curbing the
general jurisdiction of the court must
normally
receive
strict
interpretation
unless the statute or the context requires
otherwise."

22. Further, Hon'ble the Supreme
Court in the case of Daulat Ram Vs. State
of Punjab; AIR 1962 SC 1206 was
pleased to observe at para 4 as under:-

"Now the offence under s. 182 of
the Penal Code, if any, was undoubtedly
complete when the appellant had moved the
Tehsildar for action. Section 182 does not
require that action must always be taken if
the person who moves the public servant
knows or believes that action would be
taken. In making his report to the Tehsildar
therefore, if the appellant believed that
some action would be taken (and he had no
reason to doubt that it would not) the
offence under that section was complete. It
was therefore incumbent, if the prosecution
was to be launched, that the complaint in
writing should be made by the Tehsildar as
the public servant concerned in this case.
On the other hand what we find is that a
complaint by the Tehsildar was not filed at
all, but a charge sheet was put in by the
Station House Officer. The learned counsel
for the State Government tries to support
the action by submitting that s. 195 had
been complied with inasmuch as when the
allegations had been disproved, the letter
of the Superintendent of Police was
forwarded to the Tehsildar and he asked
for "a calendar". This paper was flied
along with the charge sheet and it is stated
that this satisfies the requirements of s.
195. In our opinion, this is not a due
compliance with the provisions of that
section. What the section comtemplates is
that the complaint must be in writing by the
public servant concerned and there is no
such compliance in the present case. The
cognizance of the case was therefore
wrongly assumed by the court without the
complaint in writing of the public servant
namely the Tehsildar in this case. The trial
was thus without jurisdiction ab inito and
the conviction cannot be maintained."

23. Further, Hon'ble the Supreme
Court in the case of M.S. Ahlawat Vs.
State of Haryana and Another; AIR
2000 SC 168 was pleased to observe at
para 5 as under:-

"Chapter XI of IPC deals with
false evidence and offences against public
justice' and Section 193 occurring therein
provides for punishment for giving or
fabricating false evidence in a judicial
proceeding. Section 195 of the Criminal
Procedure Code (Cr.P.C.) provides that
where an act amounts to an offence of
contempt of the lawful authority of public
servants or to an offence against public
justice such as giving false evidence under
Section 193 IPC, etc. or to an offence
relating to documents actually used in a
court, private prosecutions are barred
absolutely and only the court in relation to
which the offence was committed may
initiate proceedings. Provisions of Section
195 Cr.P.C. are mandatory and no court
has jurisdiction to take cognizance of any
of the offences mentioned therein unless
there is a complaint in writing as required
under that Section. It is settled law that
every incorrect or false statement does not
592 INDIAN LAW REPORTS ALLAHABAD SERIES
make it incumbent upon the court to order
prosecution,
but
to
exercise
judicial
discretion to order prosecution only in the
larger interest of the administration of
justice."

24. Now coming to the provision of
first schedule of Cr.P.C., Section 171 H of
Indian Penal Code is covered under the said
provision which is declared as noncognizable and bailable offence, and triable
by the Magistrate of the First Class. Like
wise classification of offence against other
laws in Cr.P.C., it also describes, if any
offence under any other law, if punishable
for less than three years or with fine which
shall be considered as non- cognizable,
bailable and triable by the Magistrate of
First Class.

25. On perusal of the above said
provisions, it is abundantly clear that the
offence registered against the applicant
under Section 171H of IPC is noncognizable in nature. Now, coming to
Section 155(2) of Cr.P.C. which reads as
follows:

"No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial"

26. Particularly, Section 155(2)
mandates the police concerned that such
police officer shall investigate the non-
cognizable offence with the permission of
the Magistrate only. This Section describes
that no Police Officer shall investigate a
non- cognizable case without the order of
the Magistrate having power to try such
case for trial.

27. The provision in sub Section (2)
of Section 155 of Cr.P.C., for asking
permission of the Court to investigate a
non-cognizable offence is mandatory in
nature. Therefore, the investigation of noncognizable offence by the police without
prior
permission
of
the
competent
Magistrate is illegal. Even mere accepting
the charge sheet by the Magistrate and
taking the cognizance of the offence does
not
validate
the
proceeding.
Even
subsequent permission by the Magistrate
also cannot cure the illegality. As could be
seen from Section 460 of Cr.P.C. these
defects of non- taking permission before
investigating a non- cognizable offence is
also not curable. Though the charge sheet is
filed after due investigation without prior
permission of the Court and that the
Magistrate has accepted the charge sheet
and taken the cognizance, it does not mean
to show permission is granted by the
Magistrate
to
investigate
such
non-
cognizable
offence.
Therefore,
investigation
into
the
non-cognizable
offence without written order of the
Magistrate is strictly contrary to the
provision of this Section.

28. This Court further finds that
the above said two offences are noncognizable offences. Therefore, as per
Section 155(2) of Cr.P.C., the police have
no right or jurisdiction to investigate the
matter, without prior permission of the
Magistrate, who has got jurisdiction to
try those offences. Therefore, the entire
charge sheet filed by the police is vitiated
by
serious
incurable
defects
and
procedural irregularities.

29. This Court further finds that the
F.I.R. as well as the charge sheet, do not
disclose that there was any cognizable
offence made by the applicant, so as to
enable the police to investigate both the
cognizable and non- cognizable offences
4 All. Sushri Shreya Verma & Ors. Vs. State of U.P. & Ors.
593
together and to file the charge sheet.
Therefore, the entire charge sheet papers
and on the basis of which the criminal case
is registered is liable to be quashed.

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

31. Further, the Hon'ble Supreme
Court of India in the case Inder Mohan
Goswami
v.
State
of
Uttaranchal
(2007)12 SCC 1 has held that it would be
relevant to keep into mind the scope and
ambit
of
section
482
Cr.PC
and
circumstances under which the extra
ordinary power of the court inherent therein
as provisioned in the said section of the
Cr.P.C. can be exercised, para 23 is being
quoted here under:-

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

(i) to give effect to an order under
the Code;

(ii) to prevent abuse of the
process of court, and

(iii) to otherwise secure the ends
of justice."

32. Further, Hon'ble the Supreme
Court of India in the case of Lalankumar
Singh
and
Others
vs.
State
of
Maharashtra reported in 2022 SCC
Online SC 1383 has specifically held in
paragraph No.38 that the order of issuance
of process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. Paragraph No.38
of Lalankumar Singh and Others (supra)
is being quoted hereunder:-

"38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
594 INDIAN LAW REPORTS ALLAHABAD SERIES
could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v.
Central Bureau of Investigation, which
reads thus:

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the
Magistrate taking cognizance of an
offence, there is sufficient ground for
proceeding.
This
section
relates
to
commencement of a criminal proceeding.
If the Magistrate taking cognizance of a
case (it may be the Magistrate receiving
the complaint or to whom it has been
transferred under Section 192), upon a
consideration of the materials before him
(i.e. the complaint, examination of the
complainant and his witnesses, if present,
or report of inquiry, if any), thinks that
there is a prima facie case for proceeding
in respect of an offence, he shall issue
process against the accused.

52. A wide discretion has been
given as to grant or refusal of process
and it must be judicially exercised. A
person ought not to be dragged into court
merely because a complaint has been
filed. If a prima facie case has been made
out, the Magistrate ought to issue process
and it cannot be refused merely because
he thinks that it is unlikely to result in a
conviction.

53.
However,
the
words
"sufficient
ground
for
proceeding"
appearing in Section 204 are of immense
importance. It is these words which
amply suggest that an opinion is to be
formed only after due application of mind
that
there
is
sufficient
basis
for
proceeding against the said accused and
formation of such an opinion is to be
stated in the order itself. The order is
liable to be set aside if no reason is given
therein while coming to the conclusion that
there is prima facie case against the
accused, though the order need not contain
detailed reasons. A fortiori, the order
would be bad in law if the reason given
turns out to be ex facie incorrect."

33. Further, Hon'ble the Supreme
Court of India has provided guidelines in
case of State of Haryana Vs. Bhajan Lal
reported in 1992 Supp (1) SCC 335 for
the exercise of power under Section 482
Cr.P.C. which is extraordinary power and
used separately in following conditions:-

"102.(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
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
4 All. Sushri Shreya Verma & Ors. Vs. State of U.P. & Ors.
595
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."

34. Further the Apex Court has also
laid down the guidelines where the criminal
proceedings
could
be
interfered
and
quashed in exercise of its power by the
High Court in the following cases:- (i) R.P.
Kapoor Vs. State of Punjab, AIR 1960
S.C. 866, (ii) State of Bihar Vs. P.P.
Sharma, 1992 SCC (Crl.)192, (iii) Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another, (Para-10) 2005
SCC (Cri.) 283 and (iv) Neeharika
Infrastructure Pvt. Ltd. Vs. State of
Maharashtra, AIR 2021 SC 1918.

35. In S.W. Palankattkar & others
Vs. State of Bihar, 2002 (44) ACC 168, it
has been held by the Hon'ble Apex Court
that quashing of the criminal proceedings is
an exception than a rule. The inherent
powers of the High Court itself envisages
three circumstances under which the
inherent jurisdiction may be exercised:-(i)
to give effect an order under the Code, (ii)
to prevent abuse of the process of the court
; (iii) to otherwise secure the ends of
justice. The power of High Court is very
wide
but
should be
exercised
very
cautiously to do real and substantial justice
for which the court alone exists.

36. In view of the above said facts
and
circumstances
of
the
case,
the
investigation done by the police in this case
is without jurisdiction and based on such
invalid investigation report, the cognizance
taken by the learned Magistrate is also
illegal. Secondly, the entire proceeding
before the learned Magistrate is vitiated by
serious incurable defects.

37. Thus, in view of the law laid
down by the Hon'ble Apex Court and the
facts and circumstances, as narrated above
and from the perusal of the record, the
impugned charge sheet dated 27.03.2022
alongwith impugned summoning order
dated
22.09.2023
passed
by
learned
Additional Chief Judicial Magistrate/F.T.C.
Court No.38, Barabanki in Criminal Case
No.3149/2023 (State vs. Sushri Sherya
Verma and others), arising out of Case
Crime No.0045/2022, under Sections 171
H and 188 of I.P.C., Police Station
Mohammadpur Khala, District-Barabanki.,
as well as the entire criminal proceedings in
pursuance thereof are against the spirit and
directions issued by the Hon'ble Apex
Court and are liable to be set aside.

38. Accordingly, the impugned charge
sheet
dated
27.03.2022
alongwith
596 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned
summoning
order
dated
22.09.2023 passed by Additional Chief
Judicial Magistrate/F.T.C. Court No.38,
Barabanki in Criminal Case No.3149/2023
(State vs. Sushri Sherya Verma and others),
arising out of Case Crime No.0045/2022,
under Sections 171 H and 188 of I.P.C.,
Police
Station
Mohammadpur
Khala,
District-Barabanki as well as the entire
criminal proceedings in pursuance thereof are
hereby quashed.

39. For the reasons discussed above, the
instant application under Section 482 Cr.P.C.
is allowed in respect of the instant applicants.

40. Learned Senior Registrar of this
Court is directed to transmit a copy of this
order to the trial court concerned for its
necessary compliance.
----------
(2024) 4 ILRA 596
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.04.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 3438 of 2024

Gyaneshwar Katiyar & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Amit Kumar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable instruments Act,
1981- Sections 138 & 141 - Negotiable
Instruments - Cheque Dishonour - Legal
position for quashing of proceedings at
the initial stage - test to be applied by
court
-
whether
uncontroverted
allegations as made prima facie establish
the offence - and whether the chances of
ultimate conviction are bleak - such that
no useful purpose is likely to be served by
allowing the criminal proceedings to
continue - Quashing of the criminal
proceedings is an exception than a rule -
Power of High Court is very wide but
should be exercised very cautiously to do
real and substantial justice for which the
court alone exists.(Para - 17,18)

Applicants, members of an Association of
Persons (AOP) - were summoned in complaint
under Sections 138 and 141 of NI Act - for
dishonour of cheques amounting to ₹60,00,000
- allegation - cheques were issued towards
repayment of investments made by him in the
AOP - contention - cheques were stolen and
misused by complainant after they sent a legal
notice demanding repayment of borrowed funds
- applicants neither denied their signatures on
the cheques nor lodged any complaint regarding
the alleged theft. (Paras 2, 4, 5)

HELD: - Court would not embark into an
inquiry, as this is Trial Court's function. Since a
prima facie offence is disclosed, quashing the
complaint, summoning order, and proceedings
is unwarranted. Applicants can raise objections
at the appropriate stage. Prayer for quashing is
denied. (Para - 19,20)

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

List of Cases cited:

1. Mohd. Allauddin Khan Vs St. of Bihar & ors.,
(2019) 6 SCC 107

2. R.P. Kapoor Vs St. of Punj., AIR 1960 S.C.
866

3. St. of Haryana Vs Bhajanlal, 1992 SCC
(Crl.)426

4. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

5. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., 2005 SCC (Cri.)283