# Udai Shanker Shukla & Ors v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-13
- **Case number:** Application U/S 482 No. 8286 of 2005
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-shanker-shukla-ors-v-state-of-u-p-ors-45238
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code (2
of 1974) - Section 482 - Indian Penal
Code (45 of 1860) - Sections 419, 420 -
Quashing of charge sheet - at the stage of
charge sheet factual query, assessment of
defence evidence & its consideration is
beyond purview of scrutiny u/s 482
Cr.P.C. - no findings can be recorded about
veracity of allegations at that juncture in
absence of evidence (Para 10, 11)

Allegation on basis of forged certificates
applicant functioned as Assistant Teacher - Held
- since questions of facts have to be examined,
whether testimonials are genuine, whether
applicants have defrauded public revenue or not
& whether there is any mens rea, are all
questions of facts requiring appreciation of
evidence, no interference is permissible u/s 482
Cr.P.C. - charges are serious - No interference
is permissible at this stage - Charge sheet not
liable to be quashed. (Para 28)
Dismissed (E-5)
List of Cases cited:

## Text

10 All. Udai Shanker Shukla & Ors. Vs. State of U.P. & Ors.
347

7.Contusion 5 Cm X 2 Cm on the
back of both hip joint, Kept under
Observation.

8.Incised wound 4 Cm X 1.5 Cm
X Muscle deep on the front & Middle of
right thigh margins are clearcut, fresh blood
is
present,
Kept
Under
Observation,
Advised X-ray, complaint of pain in
occipital region of head, left temporal
region of Head, bridge of nose.

6. Opinion: Injury Nos. 1, 2, 3, 4, 7 &
8 are Kept Under Observations & other are
simple in nature. All injuries are caused by
blunt & Hard object except Injury No.4 &
8, which are caused by sharp edged weapon
& referred to Distt. Hospital Mainpuri for
X-ray & further management.

7. Meaning thereby, perusal of
Medico Legal Report, clearly shows that
there are injuries of such wide dimensions,
in almost every part of body, that too,
caused by blunt object and sharp edged
weapon, and, therefore, compounding of
such kind of heinous offence will be
against ends of justice and it will be
detrimental to the interest of justice. Hence,
in view of law, laid down by the Apex
Court, in the case of State of Madhya
Pradesh vs. Laxmi Narayan and others
(Supra), this Application, under Section
482 of Cr.P.C., does not fall, under the
category of cases of matrimonial dispute, to
be disposed of on the basis of compromise.
In the result, relief prayed for, on the basis
of compromise, in this Application, under
Section 482 of Cr.P.C., is being declined.

8. In view of what has been
discussed above, this Application, under
Section 482 of Cr.P.C., merits dismissal
and it stands dismissed accordingly.
----------
(2020)10ILR A347
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 8286 of 2005

Udai Shanker Shukla & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Sri P.N. Tripathi, Sri Anand Prakash
Srivastava, Sri Mahendra Pratap Tiwari

Counsel for the Respondents:
A.G.A., Sri Chandan Sharma, Sri Satyendra
Singh

Criminal Law - Criminal Procedure Code (2
of 1974) - Section 482 - Indian Penal
Code (45 of 1860) - Sections 419, 420 -
Quashing of charge sheet - at the stage of
charge sheet factual query, assessment of
defence evidence & its consideration is
beyond purview of scrutiny u/s 482
Cr.P.C. - no findings can be recorded about
veracity of allegations at that juncture in
absence of evidence (Para 10, 11)

Allegation on basis of forged certificates
applicant functioned as Assistant Teacher - Held
- since questions of facts have to be examined,
whether testimonials are genuine, whether
applicants have defrauded public revenue or not
& whether there is any mens rea, are all
questions of facts requiring appreciation of
evidence, no interference is permissible u/s 482
Cr.P.C. - charges are serious - No interference
is permissible at this stage - Charge sheet not
liable to be quashed. (Para 28)
Dismissed (E-5)
List of Cases cited:
1. Md. Allauddin Khan Vs The St. of Bihar & ors.
Cri. Appeal No.675 of 2019 15.04.2019
348 INDIAN LAW REPORTS ALLAHABAD SERIES
2. St. of M.P. Vs Yogendra Singh Jadaun & anr.
Criminal Appeal No.175 of 2020, 31.01.2020
3. St. of Hary. Vs Bhajan Lal & ors. 1992 6 Supp (1)
SCC 335
4. Google India Pvt. Ltd. Vs Visakha Industries & ors.
AIR 2020 SC 350
5. Jeffrey J. Diermeier & ors. Vs St. of W.B. & ors.
(2010) 6 SCC 243
6. Som Mittal Vs St. of Kar. (2008) 3 SCC 753
7. Lakshman Vs St. of Kar. & ors. (2019) 9 SCC 677
8. Chilakamarthi Venkateswarlu & ors. Vs St. of A.P.
& ors. AIR 2019 SC 3913
9. Zandu Pharmaceuticals Works Ltd. & ors. Mohd.
Sharaful Haque & ors., (2005) 1 SCC 122
10. Rakhi Mishra Vs St. of Bihar & ors., (2017) 16
SCC 772
11. Sonu Gupta Vs Deepak Gupta & ors. 2015 (3) SC
424
12. Roshni Chopra & ors. Vs St. of U.P. & ors. 2019
(7) Scale 152
13. Dy. Chief Controller of Imports & Exports Vs
Roshanlal Agarwal & ors. (2003) 4 SCC 139
14. U. P. Pollution Control Board Vs Mohan Meaking
Ltd & ors. (2000) 3 SCC 745
15 Kanti Bhadra Shah Vs St. of W.B. (2001) SCC 722
16 Nupur Talwar Vs C.B.I. & ors. (2012) 11 SCC 465
17. Parbatbhai Aahir & ors. Vs St. of Guj & or.s
(2017) 9 SCC 641
18. Arun Singh & ors. Vs St. of U.P. Criminal Appeal
no.250 of 2020

(Delivered by Hon'ble Sudhir Agarwal, J.)

1.

Heard
Sri
Anand
Prakash
Srivastava,learned counsel for applicants,
learned AGA for State-respondent-1 and
Sri Chandan Sharma, learned counsel for
respondent-3.

2. This application under Section 482
of Code of Criminal Procedure, 1973
(hereinafter referred to as "Cr.P.C.") has
been filed by three applicants namely, Udai
Shanker Shukla, Satish Shanker Shukla and
Ram Shanker Shukla, all three brothers,
with a prayer to quash charge sheet dated
28.03.2003 and entire criminal proceedings
in Case Crime No.1297 of 2003 pending in
Court of Chief Judicial Magistrate, Basti
under Sections 419, 420, 467, 468, 469,
471 and 409 IPC, Police Station-Kotwali,
District-Basti.

3. Facts in brief giving rise to this
application are that one Ram Dhiraj Shukla,
O.P.2 lodged First Information Report
(hereinafter referred to as "FIR") against
applicants, registered as Case Crime
No.107 of 1985, under Section 379 IPC
alleging
that
they
plucked
Kathal
(Jackfruit) from Kathal tree standing on
chak owned by Complainant/Informant, R.
D. Shukla. Police after investigation
submitted final report. Thereafter, to harass
applicants, Complainant/Informant filed
application under Section 156 (3) CrPC
making accused-applicants and two others
i.e. wife of applicant-2 and applicant-1
stating that applicant Satish Kumar without
any valid qualification has functioned as
Assistant Teacher with different names in
various primary sections. Initially, he
worked at Primary School, Ridhaura
Development Block, Parshurampur and
therefrom 20.08.1988 he was transferred to
Primary School, Semra Development Block
but did not return after 06.11.1989. After
detection of fraud of Satish Shankar
10 All. Udai Shanker Shukla & Ors. Vs. State of U.P. & Ors.
349
Shukla, to protect his brother, Udai
Shanker Shukla represented himself as
Assistant Teacher and signed at Register
(2) from 1986 to 24.09.1992 and usurped
public funds. In this regard report in Police
Station-Parshurampur
was
lodged
by
Principal of Primary School against Uday
Shanker Shukla under Section 419 and 420
IPC. Therein Satish Shanker Shukla was
also made an accused. Sri Uday Shanker
Shukla is usurping different funds and
getting regular salary on the basis of
fraudulent appointment since 12.10.1992
and misappropriated about Rs.5 lacs. Uday
Shanker Shukla has prepared his false and
fraudulent
BTC
certificate
and
also
certificate of dependent of Freedom Fighter
though in his family there was no Freedom
Fighter. His BTC degree is also forged.
They have also managed removal of
relevant documents from the Office.

4. On the said application, Chief
Judicial Magistrate, Basti passed order on
24.04.2001 for lodging FIR against
accused
persons
and
conduct
investigation.
Accused
persons
filed
Criminal Revision before this Court
which was finally disposed of vide
judgment dated 10.05.2001 directing
investigation to continue but till police
submits report under section 173 (2)
CrPC, arrest shall not be made.

5. Pursuant to Magistrate's order
dated 24.04.2001 police registered case
as C-1 of 2001 under Sections 419, 420,
467, 468, 469, 471, 409 IPC against three
accused applicants and applicants-1 and
2's wives namely, Shanti Shukla and
Sushila
Devi.
Investigating
Officer
(hereinafter referred to as "I.O.") also
submitted charge sheet dated 28.03.2003
under Sections 419, 420, 467, 468, 471,
409 IPC in the Court of Chief Judicial
Magistrate, Basti.

6. It is pleaded that applicant-1 (Udai
Shanker Shukla) passed High School in
1975, Intermediate in 1977 and BTC
examination in 1985. He was appointed as
Assistant Teacher in Primary School in
1987. Applicant-2 (Satish Shanker Shukla)
passed High School examination in 1981,
Intermediate in 1983. He was appointed as
Assistant
Teacher
by
order
dated
13.02.1993. Applicant-3 (Ram Shanker
Shukla) was never appointed as Assistant
Teacher in Primary School and allegations
made against him are false. Shanti Shukla
is not wife of Satish Shanker Shukla,
(applicant-2) but his wife is Umeshwari
Devi. All the educational certificates have
been found genuine by District Basic
Education
Officer,
Basti
(hereinafter
referred to as "DBEO"), still Police has
submitted charge sheet on 28.03.2003
under Sections 419, 420, 467, 468, 471,
409 IPC. A departmental enquiry was
directed to be conducted by DBEO, Basti
by order of Director of Education (Basic),
U.P., Lucknow {hereinafter referred to as
'D.E.(Basic)'} whereupon enquiry was
conducted
and
vide
report
dated
02.03.2000, DBEO, Basti found that
complaint made against applicants is
incorrect and their educational documents
are c correct still Chief Judicial Magistrate,
Basti has taken cognizance of charge sheet
on 16.04.2003 ignoring said report, hence,
proceedings are being challenged as the
same are illegal.

7. It is contended that evidence
collected by Investigating Officer cannot be
relied on, in view of report dated
02.03.2000 submitted by DBEO, Basti,
through D.E.(Basic).
350 INDIAN LAW REPORTS ALLAHABAD SERIES

8. On behalf of O.P.2 it is said that in
a
Public
Interest
Litigation
(Writ)
No.33071 of 2013, an order was passed on
06.06.2013 by this Court directing DBEO
to take a decision on representation made
by petitioner Ram Murti Misra and
operative part of aforesaid judgment reads
as under :

"Accordingly, the present writ
petition is disposed of with liberty to the
petitioner
to
make
a
representation
ventilating
all
his
grievances
before
respondent no.1, within two weeks from
today, along with a certified copy of this
order. On such a representation being
made the respondent no.1 shall summon the
original records and shall satisfy himself as
to whether the appointment of respondents
no.9 to 27 are strictly in accordance with
law, they are possessed of the prescribed
minimum qualifications and are working
under valid orders, or not, after affording
opportunity of hearing to respondents no.9
to 27."

9. Pursuant thereto DBEO enquired the
matter and found that original record relating
to appointment of applicant-3 Ram Shanker
was not available in the Office and in this
regard report namely, Case Crime No.768 of
2014 under Sections 419, 420, 467, 468, 471,
201 IPC, Police Station-Kotwali, Basti was
registered
by
the
then
DBEO,
Dr.
Dharamveer Singh. He has found that Ram
Shanker Shukla, applicant-3 played fraud
with
department
and
worked
upto
20.08.1988, illegally received salary and
thereafter left School. Similar enquiry was
held against applicant-2 also and by order
dated 12.05.2015, DBEO, Basti has declared
his appointment illegal. A third report to
similar effect has been submitted by DBEO
and he has passed order dated 12.05.2015
declaring appointment of applicant-1, wholly
illegal. Learned counsel for respondent i.e.
O.P. No.2 has placed aforesaid documents
before this Court for its perusal.

10. However, I am not taking
cognizance of these documents for deciding
this application for the reason that at the stage
when Magistrate has taken cognizance on the
basis of charge sheet submitted by police, he
had occasion to consider only the material
collected by I.O. during investigation. Scope
of interference of this Court is also very
limited at this stage. Contention of learned
counsel for applicants that evidence is not
reliable and their defence version must be
considered, I am afraid, cannot be accepted
for the reason that at this stage defence of
applicants-accused cannot be considered.

11. Time and again it has been
highlighted by Supreme Court that at the
stage of charge sheet factual query and
assessment of defence evidence is beyond
purview of scrutiny under Section 482
Cr.P.C. The allegations being factual in
nature can be decided only subject to
evidence. In view of settled legal proposition,
no findings can be recorded about veracity of
allegations at this, juncture in absence of
evidence. Supreme Court has highlighted that
jurisdiction under Section 482 Cr.P.C. be
sparingly/rarely
invoked
with
complete
circumspection and caution. In Criminal
Appeal No.675 of 2019 (Arising out of
S.L.P. (Crl.) No.1151 of 2018) (Md.
Allauddin Khan Vs. The State of Bihar &
Ors.) decided on 15th April, 2019, Supreme
Court observed as to what should be
examined by High Court in an application
under Section 482 Cr.P.C. and in paras 15, 16
and 17 said as under :

"15. The High Court should have
seen that when a specific grievance of the
appellant in his complaint was that
10 All. Udai Shanker Shukla & Ors. Vs. State of U.P. & Ors.
351
respondent Nos. 2 and 3 have committed
the offences punishable under Sections 323,
379 read with Section 34 IPC, then the
question to be examined is as to whether
there are allegations of commission of
these two offences in the complaint or not.
In other words, in order to see whether any
prima facie case against the accused for
taking its cognizable is made out or not,
the Court is only required to see the
allegations made in the complaint. In the
absence of any finding recorded by the
High Court on this material question, the
impugned order is legally unsustainable.

16. The second error is that the
High Court in para 6 held that there are
contradictions in the statements of the
witnesses on the point of occurrence.

17. In our view, the High Court
had no jurisdiction to appreciate the
evidence of the proceedings under Section
482 of the Code Of Criminal Procedure,
1973
(for
short
"Cr.P.C.")
because
whether there are contradictions or/and
inconsistencies in the statements of the
witnesses is essentially an 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. That stage is yet to
come in this case."(emphasis added)

12. Recently, above view has been
reiterated in Criminal Appeal No.175 of
2020 (State of Madhya Pradesh Vs.
Yogendra Singh Jadaun and another) by
Supreme Court vide judgment dated
31.01.2020.

13. The principles which justify
interference under Section 482 Cr.P.C. by
Court have been laid down in various
authorities in which Supreme Court's
judgment in State of Haryana vs. Bhajan
Lal and others, 1992 Supp (1) SCC 335
was leading precedent and thereafter matter
has also been examined by even Larger
Benches.

14. In State of Haryana vs. Bhajan
Lal
and
others
(supra)
issue
of
jurisdiction of this Court under Section 482
Cr.P.C. has been considered and what has
been laid down therein in paragraph 102,
has been repeatedly followed and reiterated
consistently. In very recent judgment in
Google
India
Private
Limited
Vs.
Visakha Industries and Ors. , AIR 2020
SC 350, guidelines laid down in paragraph
102 in Bhajal Lal's case (supra) have
been reproduced as under :

"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
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
352 INDIAN LAW REPORTS ALLAHABAD SERIES
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." (emphasis added)

15. Court has also reproduced note of
caution given in paragraph 103 in Bhajan
Lal's case (supra) which reads as under :

"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." (emphasis added)

16. What would be the scope of
expression "rarest of rare cases" referred to
in para 103 in State of Haryana vs.
Bhajan Lal (supra) has been considered in
Jeffrey J. Diermeier and Ors. Vs. State
of West Bengal and Ors. , 2010 (6) SCC
243, Court has said that words "rarest of
rare cases" are used after the words
'sparingly and with circumspection' while
describing scope of Section 482 CrPC.
Those
words
merely
emphasize
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 with reference to
punishment for offences under Section 302
IPC, but to emphasize that the power under
Section 482 Cr.P.C. to quash FIR or
criminal proceedings should be used
sparingly and with circumspection.

17. Supreme Court in Jeffrey J.
Diermeier (supra) infact referred to an
earlier Three Judges' Bench judgment in
10 All. Udai Shanker Shukla & Ors. Vs. State of U.P. & Ors.
353
Som Mittal Vs. State of Karnataka, 2008
(3) SCC 753, to explain phrase "rarest of
rare cases". In Som Mittal (supra), Court
also said that exercise of inherent power
under Section 482 CrPC is not a rule but
exception. Exception is applied only when
it is brought to notice of Court that grave
miscarriage of justice would be added if
trial is allowed to proceed where accused
would be harassed unnecessarily or if trial
is allowed to linger when prima facie it
appears to Court that trial would likely to
be ended in acquittal. Whenever question
of fact is raised which requires evidence,
Courts always said that at pre trial stage i.e.
at the stage of cognizance taken by
Magistrate power under Section 482 CrPC
would not be appropriate to be utilized,
since, question of fact has to be decided in
the light of evidence which are yet to be
adduced by parties.

18. In Lakshman vs. State of
Karnataka and others, 2019 (9) SCC 677
Court said that it is not permissible for
High Court in application under Section
482 CrPC to record any finding wherever
there are factual disputes. Court also held
that even in dispute of civil nature where
there is allegation of breach of contract, if
there is any element of breach of trust with
mens rea, it gives rise to criminal
prosecution as well and merely on the
ground that there was civil dispute,
criminality involved in the matter cannot be
ignored. Further whether there is any mens
rea on part of accused or not, is a matter
required to be considered having regard to
facts and circumstances and contents of
complaint and evidence etc, therefore, it
cannot be said pre judged in a petition
under Section 482 CrPC.

19.

In
Chilakamarthi
Venkateswarlu and Ors. Vs. State of
Andhra Pradesh and Ors., AIR 2019 SC
3913,
Court
reiterated
that
inherent
jurisdiction though wide and expansive has
to be exercised sparingly, carefully and
with caution and only when such exercise
would justify by tests specifically laid
down in Section itself. In paragraph 14 of
judgment, Court said :

"14. For interference Under
Section 482, three conditions are to be
fulfilled. The injustice which comes to light
should be of a grave, and not of a trivial
character; it should be palpable and clear
and not doubtful and there should exist no
other provision of law by which the party
aggrieved could have sought relief."
 (emphasis added)

20. Court also said that in exercise of
jurisdiction under Section 482 CrPC it is
not permissible for the Court to act as if it
were Trial Court. Court has only to be
prima facie satisfied about existence of
sufficient ground for proceeding against
accused. For that limited purpose, Court
can evaluate material and documents on
record but it cannot appreciate evidence to
conclude whether materials produced are
sufficient or not for convicting accused.
High Court should not exercise jurisdiction
under Section 482 CrPC embarking upon
an enquiry into whether evidence is reliable
or
not
or
whether
on
reasonable
apprehension of evidence, allegations are
not sustainable, or decide function of Trial
Judge. For the above proposition, Court
relied on its earlier authority in Zandu
Pharmaceuticals Works Limited and
others vs Mohd. Sharaful Haque and
others, 2005 (1) SCC 122.

21. Power under section 482 CrPC
should not be exercised to stifle legitimate
prosecution. At the same time, if basic
354 INDIAN LAW REPORTS ALLAHABAD SERIES
ingredients
of
offfences
alleged
are
altogether absent, criminal proceedings can
be quashed under Section 482 CrPC.
Relying on M.A.A. Annamalai Vs. State
of Karnataka and Ors. , 2010 (8) SCC
524, Sharda Prasad Sinha Vs. State of
Bihar, AIR 1977 SC 1754 and Nagawwa
Vs. Veeranna Shivalingappa Konjalgi
and Ors., 1976 AIR 1976 SC 1947, Court
in Chilakamarthi Venkateswarlu and
Ors. (supra) said that where allegations set
out in complaint or charge sheet do not
constitute any offence, it is open to High
Court exercising its inherent jurisdiction
under Section 482 CrPC to quash order
passed by Magistrate taking cognizance of
offence. Inherent power under Section 482
CrPC is intended to prevent abuse of
process of Court and to clear ends of
justice. Such power cannot be exercised to
do something which is expressly barred
under CrPC. Magistrate also has to take
cognizance applying judicial mind only to
see whether prima facie case is made out
for summoning accused persons or not. At
this stage, Magistrate is neither required to
consider FIR version nor he is required to
evaluate value of materials or evidence of
complainant find out at this stage whether
evidence would lead to conviction or not.

22. It has also been so observed in
Rakhi Mishra Vs. State of Bihar and
Ors., 2017 (16) SCC 772 and Sonu Gupta
Vs. Deepak Gupta and Ors. , 2015 (3) SC
424 and followed recently in Roshni
Chopra and others vs. State of U.P. and
others, 2019 (7) Scale 152. Here Court
also referred to judgment in Dy. Chief
Controller of Imports & Exports v.
Roshanlal Agarwal and Ors., (2003) 4
SCC 139, wherein paragraph 9, Court said
that in determining the question whether
any process has to be issued or not,
Magistrate has to be satisfied whether there
is sufficient ground for proceeding or not
and whether there is sufficient ground for
conviction;
whether
the
evidence
is
adequate for supporting conviction, can be
determined only at the trial and not at the
stage of inquiry.

23. However, it is also true that at the
stage of issuing process to the accused,
Magistrate is not required to record detailed
reasons. In U. P. Pollution Control Board
vs. Mohan Meaking Limited and others,
2000 (3) SCC 745, after referring to a
decision in Kanti Bhadra Shah Vs State
of West Bengal 2001 SCC 722, Court said
:

"Legislature has stressed the
need to record reasons in certain situations
such as dismissal of complaint without
issuing
process.
There
is
no
such
requirement imposed on a Magistrate for
passed
detailed
order
while
issuing
summons. Process issued to accused
cannot be quashed merely on the ground
that Magistrate had not passed a speaking
order." (emphasis added)

24. Same proposition was reiterated in
Nupur Talwar Vs Central Bureau of
Investigation and others, 2012 (11) SCC
465.

25. In a Three Judges' Bench in
Parbatbhai Aahir and Ors. Vs State of
Gujarat and Ors, 2017 (9) SCC 641,
Court has observed that Section 482 CrPC
is prefaced with an overriding provision. It
saves inherent power of High Court, as a
superior court, to make such orders as are
necessary (i) to prevent an abuse of the
process of any court; or (ii) otherwise to
secure the ends of justice. In Paragraph 15
of the judgment Court summarized as
under :
10 All. Udai Shanker Shukla & Ors. Vs. State of U.P. & Ors.
355

"(i) Section 482 preserves the
inherent powers of the High Court to
prevent an abuse of the process of any
court or to secure the ends of justice. The
provision does not confer new powers. It
only recognises and preserves powers
which inhere in the High Court;

(ii)
The
invocation
of
the
jurisdiction of the High Court to quash a
First Information Report or a criminal
proceeding on the ground that a settlement
has been arrived at between the offender
and the victim is not the same as the
invocation of jurisdiction for the purpose
of
compounding
an
offence.
While
compounding an offence, the power of the
court is governed by the provisions of
Section 320 of the Code of Criminal
Procedure, 1973. The power to quash
Under Section 482 is attracted even if the
offence is non-compoundable.

(iii) In forming an opinion
whether
a
criminal
proceeding
or
complaint should be quashed in exercise of
its jurisdiction Under Section 482, the
High Court must evaluate whether the
ends of justice would justify the exercise
of the inherent power;

(iv) While the inherent power of
the High Court has a wide ambit and
plenitude it has to be exercised; (i) to
secure the ends of justice or (ii) to prevent
an abuse of the process of any court;

(v) The decision as to whether a
complaint or First Information Report
should be quashed on the ground that the
offender and victim have settled the
dispute, revolves ultimately on the facts
and circumstances of each case and no
exhaustive elaboration of principles can be
formulated;

(vi) In the exercise of the power
Under Section 482 and while dealing with
a plea that the dispute has been settled, the
High Court must have due regard to the
nature and gravity of the offence. Heinous
and serious offences involving mental
depravity or offences such as murder, rape
and dacoity cannot appropriately be
quashed though the victim or the family of
the victim have settled the dispute. Such
offences are, truly speaking, not private in
nature but have a serious impact upon
society. The decision to continue with the
trial in such cases is founded on the
overriding element of public interest in
punishing persons for serious offences;

(vii)
As
distinguished
from
serious offences, there may be criminal
cases which have an overwhelming or
predominant element of a civil dispute.
They stand on a distinct footing in so far
as the exercise of the inherent power to
quash is concerned;

(viii) Criminal cases involving
offences which arise from commercial,
financial,
mercantile,
partnership
or
similar transactions with an essentially
civil flavour may in appropriate situations
fall for quashing where parties have
settled the dispute;

(ix) In such a case, the High
Court may quash the criminal proceeding
if in view of the compromise between the
disputants, the possibility of a conviction
is remote and the continuation of a
criminal
proceeding
would
cause
oppression and prejudice; and

(x) There is yet an exception to
the principle set out in propositions (viii)
and
(ix)
above.
Economic
offences
involving the financial and economic wellbeing of the state have implications which
lie beyond the domain of a mere dispute
between private disputants. The High
Court would be justified in declining to
quash where the offender is involved in an
activity akin to a financial or economic
fraud or misdemeanour. The consequences
of the act complained of upon the financial
356 INDIAN LAW REPORTS ALLAHABAD SERIES
or economic system will weigh in the
balance." (emphasis added)

26. Above observations have been
reiterated in Arun Singh and other Vs
State of U.P. passed in Criminal Appeal
no.250 of 2020 (arising out of Special
Leave Petition (Crl.) No. 5224 of 2017),
decided by Supreme Court on 10.02.2020.

27. Reliance placed by learned
counsel for applicant in Pepsi Foods Ltd
(supra) on the scope of Section 482 CrPC
is also in conformity with law as discussed
above. I do not find anything otherwise
stated therein or something which is
different than what has been discussed
above, which may help petitioner in a
different manner. No doubt Court said that
summoning of accused in criminal case is a
serious matter and Criminal law cannot be
set into motion as a matter of course, but to
suggest that at the cognizance stage,
defence evidence can be looked into and
assessed on merit or it can be done by this
Court when an application under Section
482 CrPC is brought to this Court against
order of cognizance/summoning is neither
legal nor permissible. This argument is,
therefore, rejected.

28. In view of above, since questions
of facts have to be examined, whether
testimonials relating to qualification of
applicants are genuine, whether they have
got appointment fraudulently or correctly
and whether they have defrauded public
revenue or not and there is any mens rea,
which are all questions of facts requiring
appreciation of evidence, no interference is
permissible at this stage. In my view,
evidence is not to be examined at this stage.
Since charges are serious, it also cannot be
said that there is any gross abuse of process
of law so as to justify interference under
Section 482 CrPC. I, therefore, find no
merit in this application to quash entire
proceedings.

29.

Application
is
dismissed
accordingly.

30. Interim order, if any, stands
vacated.
----------
(2020)10ILR A356
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2020

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 No. 9551 of 2020

Ashok Kumar Pathak ...Applicant
Versus
C.B.I./ACB, Ghaziabad ...Opposite Party

Counsel for the Applicants:
Ronak Chaturvedi

Counsel for the Opposite Party:
Sri Gyan Prakash (A.S.G.I.), Sri Sanjay
Kumar Yadav, Sri Raman Saxena

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section 482,311
&
Prevention
of
Corruption
Act,1988
-
Sections 7, 13(2) r/w 13(1)(d)-quashing
of-application filed u/s 311 CrPc for
recalling PW-1 rejected-the sanction is
referable
to
Section
19,
however,
inadvertently sanctioned under Clause (a),
instead of Clause (c) of Section 19(1) of
the Act-it is not being disputed by the
applicant that PW-1 is not the competent
authority
to
accord
sanction
for
prosecution
and
applicant
is
not
a
government
servant-it
is
settled
proposition of law that mere mentioning
the wrong provision or non-mentioning of
a provision in the order would not vitiate
the
order
or
proceedings
initiated
pursuant
thereof.(Para
6
to
21)