# Vikram Capoor v. The State of U.P. & Anr

- **Citation:** (2015) 1 ILRA 233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-26
- **Case number:** U/s 482/378/407 No. 5323 of 2013
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikram-capoor-v-the-state-of-u-p-anr-42099
- **Pages:** 17

## Headnote

(A)Cr.P.C.-Section 482-Inherent power
of High Court-when exercised?-even on
alternative remedy of revision under
section 397 Cr.P.C. ?explained.
Held: Para-21
It is well settled now that when Court
finds that the proceedings are an abuse
of process of Court and would not serve
the ends of justice and the case falls
within any of the category specified in
BhajanLal's Case,1992 (Supp) 1 SCC335
the
High
Court
may
invoke
its
jurisdiction under section 482 Cr.P.C.
The similar view has been taken by Apex
Court in. Urmila Devi v Yudhvir Singh ,JT
(2013)SC 262 held in para 41, though
the order passed under section 204
Cr.P.C.of issuing process against an
accused is not an interlocutory order and
revisable under section 397 Cr.P.C but
the order of Magistrate deciding to issue
process or summons to an accused in
exercise of his power under section 204
Cr.P.C , can always be subject matter of
challenge under inherent jurisdiction of
the High Court under section 482 Cr.P.C.
(B)Cr.P.C.-Section 482-inherent powerwhether can be exercised even availing
alternative
remedy
u/s
245
(2)
challenging discharge-application?-held-
'yes'
Held: Para-22
The power under section 245(2) Cr.P.C.
is not the alternative remedy before
superior court. It is the part of trial In
other words it cannot be said that after
passing of order under section 204
Cr.P.C. the remedy of trial is available so
powers under section 482 Cr.P.C. cannot
be invoked. Hence I am of the view that
234
 INDIAN LAW REPORTS ALLAHABAD SERIES
merely during trial accused may apply
for discharge shall not preclude him for
invoking jurisdiction of this Court under
Section 482 Cr.P.C. as held in Umesh
Kumar v. State of A.P., (2013) 10 SCC
591, at page 604
(C)Practice & Procedure-summoning orderon
complaint-while
against
similar
allegation-said order quashed by High
Court-SLP pending without interim order?-
held-against
judicial
discipline-such
resources
not
available-unless
earlier
summoning order set-a-side or varied by
Apex Court.
Held: Para-25
It is not in dispute that High Court has
quashed the proceedings of criminal
complaint
case
no
13391
of
2010
pending in the Court of JM-VIII,Lucknow
vide order dared 3.10.2013 in Cri. M.C.
No.4535 of 2013 under section 482
Cr.P.C. It is also not in dispute that
against
that
ordera
Special
Leave
petition has been filed in which there is
no interm order staying the operation of
the order passed by the High court. In
view of the above the order of issuing
summons to the petitioner passed in
Criminal Complaint No. 13391 of 2010
cannot be enforced by passing fresh
order of summoning in a fresh complaint
on the same facts by the complainant. If
it is permitted it will against the judicial
discipline. The Complainant is bound by
the orders passed by the High Court
unless set-a-side or varied by the Apex
Court. It is well settled principle of law
that the things which could not be done
directly cannot be permitted to be done
indirectly as held in Patel Motibhai
Narainbhai & anr. v. Dinubhai Motibhai
Patel,(1996) 2 SCC 585. In AIR 1967 SC
295 Barium Chemicals and another Vs.
Company Law Board and others and
1999 (3) SCC 422 Babu Verghese and
others Vs. Bar council of Kerala and
others it has been observed by the Apex
Court that ''things should be done in the
manner provided in the statute are not
at all". Therefore, I am of the firm view
that such a recourse is not available to
the complainant of this case.
Case Law discussed:
(2012) 9 SCC 460; 1992 (Supp) 1 SCC 335;
(2013) 10 SCC 591; (2014) 2 SCC 246; (1996)
2 SCC 585; (2013) 3 SCC 330; (1996) 5 SCC
591; (2000) 9 SCC 506; (1992) Supp. (1) 335.

## Text

_Characters 0–39,906 of 57,606. This is a partial read: ask again with offset=39906 for what follows._

1 All] Vikram Capoor Vs. The State of U.P. & Anr.
233
ignorance of the real facts of the case, and
obtaining that decree by that contrivance."
24. This Court in Bhaurao Dagdu
Paralkar Vs. State of Maharashtra & Ors.
[2005 (7) SCC 605] held that:
"Suppression of a material document
would also amount to a fraud on the court.
Although, negligence is not fraud, it can
be evidence of fraud."
22.
In view of the discussions made
above, this Court finds that the orders
impugned dated 26.2.2014 and 29.5.2014,
passed by the courts below, cannot be
sustained and are hereby quashed. The
executing court is directed to reconsider the
objection under section 47 CPC, afresh, in
light of the observations made above. For
such purposes, the executing court will go
into the allegations of fraud on merits, in
accordance with law, and after affording
opportunity to both the parties, the plea of
fraud would be adjudicated on merits. Since
the proceedings have dragged for the last 13
years, therefore, the objection on merits
would be decided forthwith, by fixing short
dates, in accordance with law, without
granting any adjournment to either of the
parties, except upon imposition of cost,
which shall not be less than Rs.500/-.
23. Accordingly, the writ petition
stands allowed. There shall be no order as
to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.20115
BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.
U/s 482/378/407 No. 5323 of 2013
Vikram Capoor
...Applicant
Versus
The State of U.P. & Anr.
.
..Opp. Parties
Counsel for the Applicant:
Sri Shishir Pradhan
Counsel for the Opp. Parties:
Govt. Advocate
(A)Cr.P.C.-Section 482-Inherent power
of High Court-when exercised?-even on
alternative remedy of revision under
section 397 Cr.P.C. ?explained.
Held: Para-21
It is well settled now that when Court
finds that the proceedings are an abuse
of process of Court and would not serve
the ends of justice and the case falls
within any of the category specified in
BhajanLal's Case,1992 (Supp) 1 SCC335
the
High
Court
may
invoke
its
jurisdiction under section 482 Cr.P.C.
The similar view has been taken by Apex
Court in. Urmila Devi v Yudhvir Singh ,JT
(2013)SC 262 held in para 41, though
the order passed under section 204
Cr.P.C.of issuing process against an
accused is not an interlocutory order and
revisable under section 397 Cr.P.C but
the order of Magistrate deciding to issue
process or summons to an accused in
exercise of his power under section 204
Cr.P.C , can always be subject matter of
challenge under inherent jurisdiction of
the High Court under section 482 Cr.P.C.
(B)Cr.P.C.-Section 482-inherent powerwhether can be exercised even availing
alternative
remedy
u/s
245
(2)
challenging discharge-application?-held-
'yes'
Held: Para-22
The power under section 245(2) Cr.P.C.
is not the alternative remedy before
superior court. It is the part of trial In
other words it cannot be said that after
passing of order under section 204
Cr.P.C. the remedy of trial is available so
powers under section 482 Cr.P.C. cannot
be invoked. Hence I am of the view that
234
 INDIAN LAW REPORTS ALLAHABAD SERIES
merely during trial accused may apply
for discharge shall not preclude him for
invoking jurisdiction of this Court under
Section 482 Cr.P.C. as held in Umesh
Kumar v. State of A.P., (2013) 10 SCC
591, at page 604
(C)Practice & Procedure-summoning orderon
complaint-while
against
similar
allegation-said order quashed by High
Court-SLP pending without interim order?-
held-against
judicial
discipline-such
resources
not
available-unless
earlier
summoning order set-a-side or varied by
Apex Court.
Held: Para-25
It is not in dispute that High Court has
quashed the proceedings of criminal
complaint
case
no
13391
of
2010
pending in the Court of JM-VIII,Lucknow
vide order dared 3.10.2013 in Cri. M.C.
No.4535 of 2013 under section 482
Cr.P.C. It is also not in dispute that
against
that
ordera
Special
Leave
petition has been filed in which there is
no interm order staying the operation of
the order passed by the High court. In
view of the above the order of issuing
summons to the petitioner passed in
Criminal Complaint No. 13391 of 2010
cannot be enforced by passing fresh
order of summoning in a fresh complaint
on the same facts by the complainant. If
it is permitted it will against the judicial
discipline. The Complainant is bound by
the orders passed by the High Court
unless set-a-side or varied by the Apex
Court. It is well settled principle of law
that the things which could not be done
directly cannot be permitted to be done
indirectly as held in Patel Motibhai
Narainbhai & anr. v. Dinubhai Motibhai
Patel,(1996) 2 SCC 585. In AIR 1967 SC
295 Barium Chemicals and another Vs.
Company Law Board and others and
1999 (3) SCC 422 Babu Verghese and
others Vs. Bar council of Kerala and
others it has been observed by the Apex
Court that ''things should be done in the
manner provided in the statute are not
at all". Therefore, I am of the firm view
that such a recourse is not available to
the complainant of this case.
Case Law discussed:
(2012) 9 SCC 460; 1992 (Supp) 1 SCC 335;
(2013) 10 SCC 591; (2014) 2 SCC 246; (1996)
2 SCC 585; (2013) 3 SCC 330; (1996) 5 SCC
591; (2000) 9 SCC 506; (1992) Supp. (1) 335.
(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)
1. By means of the present petition
under section 482 Code of Criminal
Procedure Code (For short ''Cr.P.C.') the
petitioner Vikram Capoor has prayed for
quashing of the proceedings of Criminal
Complaint Case No. 209 of 2013, Ani
Capoor Vs. Vikram Capoor pending in
the
court
of
Judicial
Magistrate-II,
Lucknow and also the order impugned
dated 25th September, 2013, whereby the
petitioner has been summoned to face trial
under sections 355, 409 504 and 506 IPC.
2.
Brief facts germane to the present
case are that petitioner is a nephew of
opposite party no. 2 Ani Capoor. A business
in the name of M/s Capoor Hotel and
Restaurant was running in the partner-ship of
petitioner and opposite party no. 2. Both
were partners of equal share i.e. 50% each.
The partnership deed was executed in
between them. During continuance of the
partnership some dispute arose and opposite
party no. 2 made applications to the Station
Officer of police station Hazratganj, District
Lucknow on 7.5.2007 and on 8.5.2007 and
also to S.S.P. Lucknow on 9.5.2007 by
sending the same by registered post alleging
therein that petitioner with intention to cause
pecuniary loss to the opposite party no. 2 and
with mala fide intention prepared a forged
acknowledgement dated 22.3.2007 along
with receipts thereof by making forged
signature of opposite party no. 2, by which a
1 All] Vikram Capoor Vs. The State of U.P. & Anr.
235
letter (notice of proceedings) dated 21.3.2007
was said to be served upon opposite party no.
2. This forged acknowledgement was used in
the arbitration proceedings pending in the
court of District Judge, Lucknow by the
petitioner with intention to deprive her from
legal rights to contest. This all has been done
by the petitioner to dislodge her from the
partnership property with connivance of
courier company.
3.
Opposite party no. 2 moved an
application under section 156 (3) Cr.P.C.
with similar allegation on 11.5.2007
(Annexure no. 3 to this petition). which was
registered as Criminal Misc. Case No. 447
of 2007. The learned Chief Judicial
Magistrate, Lucknow rejected the same by
means of order dated 27.5.2007 on the
ground that application under section 340
Cr.P.C. was given before District Judge
where forgery was committed. In this regard
what proceeding has been done by the
District Judge, has not been mentioned by
the opposite party no. 2 nor any order of the
District Judge has been filed by her.
4. Opposite party no. 2 moved
another application under section 156 (3)
Cr.P.C on 19.5.2007 (Annexure no. 5 to
this
petition)
alleging
therein
that
partnership deed was executed in between
petitioner and opposite party no. 2 on
31.10.1995 and the same was signed by
them. The petitioner with intent to cause
pecuniary loss to opposite party no. 2 and
with mala fide intention prepared forged
documents
on
different
dates
by
manipulating the bills of hotel and the
amount under the bills paid by the
customers was misappropriated by the
petitioner. The bills have been removed
from the computer. As such the petitioner
has also committed criminal offence by
causing pecuniary loss to Trade Tax
Department. It was also alleged that in
terms of partnership deed the income of
the hotel has to be deposited in CC
Account No. 253 of Capoor Hotel and
Restaurant with Federal Bank Ltd. Vidhan
Sabha, Lucknow but the same was not
deposited with the aforesaid bank, which
was actually deposited in the personal
account of petitioner having Account No.
0294000100723466 in Punjab National
Bank, Hazratganj, Lucknow. As such he
committed breach of trust. He also
prepared forged documents by making
fictitious signature of opposite party no. 2
thereon so that the entire amount under
partnership deed shall be deemed to be
paid to her and false balance-sheet has
been prepared and used as genuine by
filing the same before trade tax authority.
It was also alleged that on 8.5.2007 at
about 9.00 p.m. the opposite party no. 2
made a complaint of all these things to the
petitioner. The petitioner abused her in
filthy language and put his license
revolver on her chest and threatened her
to go back otherwise she will be killed. In
this regard she tried to lodge first
information report, but the same was not
lodged. Consequently she moved the
application under section 156 (3) Cr.P.C
on 19.5.2007, which has been registered
as Criminal Misc. Case No. 472 of 2007.
On the same date, the learned Magistrate
called for report from concerned police
station and asked as to why the offence
has been registered so far. In pursuance
thereof the FIR has been lodged against
petitioner at case crime no. 409 of 2007
under section 420,406,467,468,471,504
and 506 IPC. P.S. Hazratganj, District
Lucknow on 8.6.2007.
5. The opposite party no. 2 moved
an application on 15.6.2007 to the DGP,
Lucknow accompanied with affidavit
236
 INDIAN LAW REPORTS ALLAHABAD SERIES
stating therein that the matter has been
compromised in between the parties,
hence she does not want to launch
criminal proceedings initiated against
petitioner in pursuance of FIR lodged on
8.6.2007 at case crime no. 409 of 2007
under section 420,406,467,468, 471,504
and 506 IPC P.S. Hazratgang, Lucknow
and the same may be closed and final
report may be submitted by the police.
The police investigated the case and
submitted final report in this case.
6. It is pertinent to mention here that
when the dispute was going on, the
compromise has been arrived at in
between the parties and the Memorandum
of Understanding (M.O.U.) was came into
existence (Annexure
no.
1
to
the
supplementary affidavit filed by the
petitioner on 28.11.2014). This MOU was
executed on 8.6.2007. In pursuance of this
MOU, the litigation relating to civil and
criminal pending in between the parties
were compromised.
7. The opposite party no.2 has
moved an application for dismissal of
petition under section 156 (3) Cr.P.C. as
not pressed on 15.6.2007/16.6.2007. The
learned Magistrate vide order dated
16.6.2007 rejected the same.
8. On 15.9.2010 the opposite party
no. 2 filed Complaint Case bearing no.
13391 of 2010 (Annexure no. 9 to this
petition)
containing
the
allegations
relating
to
alleged
forgery
of
acknowledgement. In this complaint, it
was also alleged that signature of
O.P.No2 on the acknowledgement used in
arbitration proceeding pending in the
court of District Judge, Lucknow was
found forged. The opposite party no. 2
examined
herself under section 200
Cr.P.C. and the learned Magistrate
summoned the petitioner vide order dated
19.1.2011 and 30.7.2013.
9. Aggrieved by the aforesaid orders
the petitioner filed a petition no. 4535 of
2013 under section 482 Cr.P.C. This Court
vide order dated 3.10.2013 allowed the
petition and quashed the summoning orders
dated 19.1.2011 and 30.7.2013 passed by
the Additional Chief Judicial MagistrateVIII, Court No. 23, Lucknow along with
proceedings initiated thereof. The opposite
party no. 2 challenged the order dated
3.10.2013 before Hon'ble Supreme Court by
filing SLP having no. 9693 of 2014. The
Apex Court admitted the same and issued
notice to the petitioner.
10. During pendency of the
proceeding in Apex Court opposite party
no.
2
filed
another
complaint
on
28.2.2013 having complaint case no. 2090
of 2013 with the allegation similar to
allegations made in complaint which was
dismissed as withdrawn on 6.6.2007. In
this complaint the O.P.No2 also levelled
similar allegations in paras 7 8,9,10 and
11 which were made in complaint dated
19.5.2007. In this complaint it has also
been stated that when terms of MOU
dated 8.6.2007 were not complied with by
the petitioner, she gave notice to the
petitioner on 25.10.2012, which was
neither replied nor terms of MOU were
complied with by him. It was also stated
therein that under great pressure exerted
by her the petitioner inducted his son in
her place in the partnership business to
the extent of 50% share in the same. It
was also stated that offences in which
compromise
had
taken
place
in
compliance
of
MOU
were
non
compoundable under the provisions of
Section 320 (9) Cr.P.C.
1 All] Vikram Capoor Vs. The State of U.P. & Anr.
237
11. In support of allegation in
complaint she examined herself under
section 200 Cr.P.C. and examined Sanjai
Capoor, the son of opposite party no. 2
and Awadhesh Tiwari, the Care Taker of
Gauri Apartment, 57 Merabai Marg,
Lucknow
where
Sanjai
Capoor
is
residing, under section 202 Cr.P.C.
Thereafter
the
learned
Magistrate
summon the petitioner to face trial under
sections
355/409/504/506
IPC
vide
impugned order dated 25.9.2013. These
proceedings were put under challenge in
this petition.
12. By means of supplementary
affidavit the petitioner has filed MOU
dated 20.6.2007 and the fresh partnership
deed/tripartite agreement dated 23.8.2011,
by which Sanjay Capoor was inducted as
partner holding share of 50% in place of
Ani Capoor. This fresh partnership deed
was made effective from 1.09.2011. It
was signed by Vikram Capoor, Ani
Capoor and Sanjay Capoor in the
presence of witnesses.
13. I have heard Shri Anil Kumar
Tiwari, Senior Advocate assisted by Shri
Shishir Pradhan, learned counsel for the
petitioner, and Shri Salil Kumar Kumar
Srivastava, learned counsel for opposite
party no. 2 as well as learned AGA and
also perused the record.
14. It has been contended by the
learned counsel for the petitioner that that
opposite party no. 2 filed the complaint
with mala fide intention after concealing
the material fact. It was asserted that real
dispute
arose
after
execution
of
partnership
deed
under
tripartite
agreement with effect from 23.8.2011,
whereby
Sanjay
Capoor
has
been
inducted as partner to the extent of 50%
share. The opposite party no. 2 has
executed a registered gift deed, who was
the part of tripartite agreement dated
23.8.2011. This gift deed was executed on
23.07.10 in favour of Akshat Bajaj, who
is the grand son of opposite party no. 2.
By this gift deed 12.5% share of the
partnership business was gifted to Akshat
Bajaj. Akshat Bajaj served a legal notice
dated 20.4.201i. He also filed Regular
Suit No. 540 of 2012 against M/s Capoor
Hotel and Restaurant and others which is
pending in the court of Civil Judge (Senior
Division), Lucknow. The matter of 50%
share of opposite party no 2 was in dispute
in between the son and grand son of
opposite party no. 2 namely Sanjay Capoor
and Akshat Bajaj. The petitioner requested
to settle their dispute so that the business
may not be adversely effected. Thereafter
Opposite party no. 2 filed a Regular Suit
bearing
no.
774
of
2012
seeking
cancellation of gift deed dated 23.7.2011.
When the dispute arose amongst sons ,
grand son of opposite party no. 2 and
opposite party no. 2, this complaint has
been filed to put pressure upon the
petitioner with mala fide intention in
counter blast to the proceedings initiated in
civil court. It was further submitted that
matter
which
has
already
been
compromised cannot be reopened and the
proceedings are abuse of process of court.
15. Counter affidavit has been filed
wherein factual matrix has not been
disputed. It has been stated that present
petition is not maintainable because
remedy
of
filing
revision
against
summoning order before sessions judge is
available to the petitioner. Moreover,
alternative remedy under section 245 (2)
Cr.P.C. is also available where he may
claim by moving the application before
trial court.
238
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. It is also submitted that SLP is
pending before Hon'ble Supreme Court. It
cannot be said that matter has been finally
decided
regarding
quashment
of
proceedings and there is no impediment in
entertaining the fresh proceedings in
respect
of
offence
which
is
non
compoundable.
17. It was further submitted that
documents which are not form part of the
record of trial court cannot be looked into
in this proceeding .Moreover the said
documents are not of unimpeachable
character. It is also submitted that actually
the O.P.No. Wants to execute a will in
favour of minor grand son Akshat
Capoor, but the mother of Akshat Capoor
fraudulently got executed gift deed
instead of will deed. It is also also
submitted that investigation report filed
by police before trial court in pursuance
of order passed by learned Magistrate
under section 202 Cr.P.C. is only for
assistance for the Court and that cannot be
used for quashing of the proceedings. It
was further submitted that document
relating to forgery would be submitted at
the
stage
of
section
244
Cr.P.C.
Therefore, the proceedings cannot be
quashed.
18. In view of submissions at Bar,
for deciding the present petition the
following
are
the
question
for
consideration:-
1.Whether this petition under section
482 is not maintainable in view of
availability of remedy to file revision
against the order of summoning?
2.Whether this petition under section
482 is not maintainable in view of
availability of remedy to file application
under section 245(2) Cr.P.C?
3.Whether during pendency of SLP
before Apex Court challenging the order
of quashing the complaint and relating
proceedings by High Court vide its order
dated 03.10.2013 the O.P.No.2 have any
right to file fresh complaint on the same
allegation which were contained in earlier
complaint which has been quashed by
High
Court
vide
its
order
dated
03.10.2013?
4.Whether the documents of the
petitioner attached with his petition and
not find place in the record of learned
Magistrate could be looked into at this
Stage?
5.Whether
after
entering
into
compromise and acting upon the same by
the parties , any party to compromise have
any right to file fresh criminal complaint
on the same allegation after about 5 years,
taking plea that offences compromised
were non compoundable?
6.Whether the present proceedings
are an abuse of process of Court and are
liable to be quashed?
7.Whether action of filing the present
complaint by O.P.No.2 is mala fide and
she is also guilty of concealment of
material fact? If so its effect.
Question No.1
19. The Hon'ble Supreme Court in
Raj Kapoor v. State, (1980) 1 SCC 43,
considered the question involved here and
held in para 10 at page 48 :
"10. The first question is as to
whether the inherent power of the High
Court under Section 482 stands repelled
when the revisional power under Section
397 overlaps. The opening words of
Section 482 contradict this contention
because nothing of the Code, not even
Section 397, can affect the amplitude of
1 All] Vikram Capoor Vs. The State of U.P. & Anr.
239
the inherent power preserved in so many
terms by the language of Section 482.
Even so, a general principle pervades this
branch of law when a specific provision is
made: easy resort to inherent power is not
right
except
under
compelling
circumstances. Not that there is absence
of jurisdiction but that inherent power
should not invade areas set apart for
specific power under the same Code. In
Madhu Limaye case,(1977) 4 SCC 551
this Court has exhaustively and, if I may
say so with great respect, correctly
discussed and delineated the law beyond
mistake. While it is true that Section 482
is pervasive it should not subvert legal
interdicts written into the same Code,
such, for instance, in Section 397(2).
Apparent conflict may arise in some
situations between the two provisions and
a happy solution
"would be to say that the bar
provided in sub-section (2) of Section 397
operates only in exercise of the revisional
power of the High Court, meaning
thereby that the High Court will have no
power of revision in relation to any
interlocutory order. Then in accordance
with
one
or
the
other
principles
enunciated above, the inherent power will
come into play, there being no other
provision in the Code for the redress of
the grievance of the aggrieved party. But
then, if the order assailed is purely of an
interlocutory character which could be
corrected in exercise of the revisional
power of the High Court under the 1898
Code, the High Court will refuse to
exercise its inherent power. But in case
the impugned order clearly brings about a
situation which is an abuse of the process
of the Court or for the purpose of securing
the ends of justice interference by the
High Court is absolutely necessary, then
nothing contained in Section 397(2) can
limit or affect the exercise of the inherent
power by the High Court. But such cases
would be few and far between. The High
Court must exercise the inherent power
very sparingly. One such case would be
the desirability of the quashing of a
criminal proceeding initiated illegally,
vexatiously
or
as
being
without
jurisdiction".
In short, there is no total ban on the
exercise of inherent power where abuse of
the process of the court or other
extraordinary situation excites the court's
jurisdiction.
The
limitation
is
selfrestraint, nothing more. The policy of the
law is clear that interlocutory orders, pure
and simple, should not be taken up to the
High Court resulting in unnecessary
litigation and delay. At the other extreme,
final orders are clearly capable of being
considered in exercise of inherent power,
if glaring injustice stares the court in the
face. In between is a tertium quid, as
Untwalia, J. has pointed out as for
example, where it is more than a purely
interlocutory order and less than a final
disposal. The present case falls under that
category where the accused complain of
harassment through the court's process.
Can we state that in this third category the
inherent power can be exercised? In the
words of Untwalia, J.: (SCC p. 556, para
10)
"The answer is obvious that the bar
will not operate to prevent the abuse of
the process of the Court and/or to secure
the ends of justice. The label of the
petition filed by an aggrieved party is
immaterial. The High Court can examine
the matter in an appropriate case under its
inherent
powers.
The
present
case
undoubtedly falls for exercise of the
power of the High Court in accordance
with Section 482 of the 1973 Code, even
assuming, although not accepting, that
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 INDIAN LAW REPORTS ALLAHABAD SERIES
invoking the revisional power of the High
Court is impermissible."
I am, therefore clear in my mind that
the inherent power is not rebuffed in the
case situation before us. Counsel on both
sides, sensitively responding to our
allergy for legalistics, rightly agreed that
the fanatical insistence on the formal
filing of a copy of the order under
cessation need not take up this court's
time. Our conclusion concurs with the
concession of counsel on both sides that
merely because a copy of the order has
not been produced, despite its presence in
the records in the court, it is not possible
for me to hold that the entire revisory
power stands frustrated and the inherent
power stultified."
20. In Amit Kapoor v. Ramesh
Chander, (2012) 9 SCC 460, in para 21 at
page 480 the Hon'ble Apex Court after
relying upon the Raj Kapoor's case held
as under;
"21.------The inherent powers under
Section 482 of the Code are of a wide
magnitude and are not as limited as the
power under Section 397. Section 482 can
be invoked where the order in question is
neither an interlocutory order within the
meaning of Section 397(2) nor a final
order in the strict sense. Reference in this
regard can be made to Raj Kapoor v.
State,(1980) 1 SCC 43. In that very case,
this Court has observed that inherent
power under Section 482 may not be
exercised if the bar under Sections 397(2)
and
397(3)
applies,
except
in
extraordinary situations, to prevent abuse
of the process of the Court. This itself
shows the fine distinction between the
powers exercisable by the Court under
these two provisions. In that very case,
the Court also considered as to whether
the inherent powers of the High Court
under Section 482 stand repelled when the
revisional power under Section 397
overlaps. Rejecting the argument, the
Court said that the opening words of
Section 482 contradict this contention
because nothing in the Code, not even
Section 397, can affect the amplitude of
the inherent powers preserved in so many
terms by the language of Section 482.
There is no total ban on the exercise of
inherent powers where abuse of the
process of the court or any other
extraordinary situation invites the court's
jurisdiction."
21. It is well settled now that when
Court finds that the proceedings are an
abuse of process of Court and would not
serve the ends of justice and the case falls
within any of the category specified in
BhajanLal's Case,1992 (Supp) 1 SCC335
the High Court may invoke its jurisdiction
under section 482 Cr.P.C. The similar
view has been taken by Apex Court in.
Urmila Devi v Yudhvir Singh ,JT
(2013)SC 262 held in para 41, though the
order passed under section 204 Cr.P.C.of
issuing process against an accused is not
an interlocutory order and revisable under
section 397 Cr.P.C but the order of
Magistrate deciding to issue process or
summons to an accused in exercise of his
power under section 204 Cr.P.C , can
always be subject matter of challenge
under inherent jurisdiction of the High
Court under section 482 Cr.P.C.
Question No.2
22. The power under section 245(2)
Cr.P.C. is not the alternative remedy
before superior court. It is the part of trial
In other words it cannot be said that after
passing of order under section 204
1 All] Vikram Capoor Vs. The State of U.P. & Anr.
241
Cr.P.C. the remedy of trial is available so
powers under section 482 Cr.P.C. cannot
be invoked. Hence I am of the view that
merely during trial accused may apply for
discharge shall not preclude him for
invoking jurisdiction of this Court under
Section 482 Cr.P.C. as held in Umesh
Kumar v. State of A.P., (2013) 10 SCC
591, at page 604
"The
law
does
not
prohibit
entertaining the petition under Section
482 CrPC for quashing the charge-sheet
even before the charges are framed or
before the application of discharge is filed
or even during the pendency of such
application before the court concerned.
The High Court cannot reject the
application merely on the ground that the
accused can argue legal and factual issues
at the time of the framing of the charge.
However, the inherent power of the Court
should not be exercised to stifle the
legitimate
prosecution
but
can
be
exercised
to save the accused from
undergoing the agony of a criminal trial."
23. In Devendra Kishanlal Dagalia
v. Dwarkesh Diamonds (P) Ltd.,(2014) 2
SCC 246, the Apex Court held that
Magistrate after issuing summons under
section 204 cannot review its order under
any provision in view of express bar
contained in section 362 Cr.P.C the only
remedy is to challenge the same under
section 482 Cr.P.C or under Article 227
of Constitution of India . Para 10 at page
250 is extracted below :
"10. The aforesaid provisions make it
clear that the Magistrate is required to
issue summons for attendance of the
accused only on examination of the
complaint and on satisfaction that there is
sufficient ground for taking cognizance of
the offence and that he is competent to
take such cognizance of offence. Once the
decision is taken and summons is issued,
in the absence of a power of review
including inherent power to do so, remedy
lies before the High Court under Section
482 CrPC or under Article 227 of the
Constitution of India and not before the
Magistrate.
24. Hence provision under section
245(2) Cr.P.C. is not a bar to invoke
jurisdiction of High Court under Section
482 Cr.P.C
Question No.3
25. It is not in dispute that High Court
has quashed the proceedings of criminal
complaint case no 13391 of 2010 pending in
the Court of JM-VIII,Lucknow vide order
dared 3.10.2013 in Cri. M.C. No.4535 of
2013 under section 482 Cr.P.C. It is also not
in dispute that against that ordera Special
Leave petition has been filed in which there is
no interm order staying the operation of the
order passed by the High court. In view of the
above the order of issuing summons to the
petitioner passed in Criminal Complaint No.
13391 of 2010 cannot be enforced by passing
fresh order of summoning in a fresh complaint
on the same facts by the complainant. If it is
permitted it will against the judicial discipline.
The Complainant is bound by the orders
passed by the High Court unless set-a-side or
varied by the Apex Court. It is well settled
principle of law that the things which could
not be done directly cannot be permitted to be
done indirectly as held in Patel Motibhai
Narainbhai & anr. v. Dinubhai Motibhai
Patel,(1996) 2 SCC 585. In AIR 1967 SC 295
Barium Chemicals and another Vs. Company
Law Board and others and 1999 (3) SCC 422
Babu Verghese and others Vs. Bar council of
Kerala and others it has been observed by the
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 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court that ''things should be done in the
manner provided in the statute are not at all".
Therefore, I am of the firm view that such a
recourse is not available to the complainant of
this case.
Question No.4
26. The question is not res intigra. In
Rajiv Thapar v. Madan Lal Kapoor,
(2013) 3 SCC 330, at page 347 in para 29
and 30 the Hob'ble Supreme Court
delineated certain steps to determine the
veracity of a prayer for quashment raised
by the accused by invoking the powers of
High Court under section 482 Cr.P.C. :
"29. The issue being examined in the
instant case is the jurisdiction of the High
Court under Section 482 CrPC, if it chooses
to quash the initiation of the prosecution
against an accused at the stage of issuing
process, or at the stage of committal, or even
at the stage of framing of charges. These are
all stages before the commencement of the
actual trial. The same parameters would
naturally be available for later stages as well.
The power vested in the High Court under
Section 482 CrPC, at the stages referred to
herein above, would have far-reaching
consequences inasmuch as it would negate
the prosecution's/ complainant's case without
allowing the prosecution/ complainant to
lead evidence. Such a determination must
always be rendered with caution, care and
circumspection. To invoke its inherent
jurisdiction under Section 482 CrPC the
High Court has to be fully satisfied that the
material produced by the accused is such that
would lead to the conclusion that his/their
defence is based on sound, reasonable, and
indubitable facts; the material produced is
such as would rule out and displace the
assertions contained in the charges levelled
against the accused; and the material
produced is such as would clearly reject and
overrule the veracity of the allegations
contained in the accusations levelled by the
prosecution/complainant.
It
should
be
sufficient to rule out, reject and discard the
accusations
levelled
by
the
prosecution/complainant,
without
the
necessity of recording any evidence. For this
the material relied upon by the defence
should
not
have
been
refuted,
or
alternatively, cannot be justifiably refuted,
being material of sterling and impeccable
quality. The material relied upon by the
accused should be such as would persuade a
reasonable person to dismiss and condemn
the actual basis of the accusations as false. In
such a situation, the judicial conscience of
the High Court would persuade it to exercise
its power under Section 482 CrPC to quash
such criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice.
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
1 All] Vikram Capoor Vs. The State of U.P. & Anr.
243
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
conclude in the conviction of the accused.
27. Therefore if the documents filed
by the petitioner pass the test as discussed
above can be looked into for exercising
the powers under section 482 Cr.P.C.
28. In this case the documents filed
by the petitioners are noSo far as the
genuineness of documents relied upon by
the petitioner in support of their claim
annexed with their pleading has not been
disputed.
The
correctness
of
these
documents has not been refuted by the
complainant. Therefore this Court has to
evaluate the material relied upon by the
petitioner with a view whether the same is
sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable
quality?
Question no.5
29. This fact has not in dispute that all
the civil and criminal matters has been ended
in terms of compromise, i.e. MOU dated
20.7.2007. The parties had acted upon that
MOU and changed their position in terms of
MOU. It is true that this MOU also contain
terms for withdrawal of criminal matters
involving some of the offences which were
non compoundable in view of section 320
Cr.P.C. but the same was not limited to
alleged criminal actions of petitioner but also
about the civil rights and dispute amongst the
parties. The perusal of MOU reveals that in
term no 10 the parties agreed to resolve
future dispute s amicably and in the
alternative by way of arbitration or they may
again approach to Shri Murli Lunggani and
Sri
Raj
Kanwal
Chanana
for
their
intervention. It is also not in dispute that this
matter and dispute is in between the close
relatives of a family in respect of business
run since their ancestral. The Apex Court in
Gian Singh v. State of Punjab, (2012) 10
SCC 303, at page 340 observed in respect of
certain category of cases of compoundable
offences in the following terms;-
"58. Where the High Court quashes a
criminal proceeding having regard to the fact
that the dispute between the offender and the
victim has been settled although the offences
are not compoundable, it does so as in its
opinion,
continuation
of
criminal
proceedings will be an exercise in futility and
justice in the case demands that the dispute
between the parties is put to an end and
peace is restored; securing the ends of justice
being the ultimate guiding factor. No doubt,
crimes are acts which have harmful effect on
the public and consist in wrongdoing that
seriously endangers and threatens the wellbeing of the society and it is not safe to leave
the crime-doer only because he and the
victim have settled the dispute amicably or
that the victim has been paid compensation,
yet certain crimes have been
made
compoundable in law, with or without the
244
 INDIAN LAW REPORTS ALLAHABAD SERIES
permission of the court. In respect of serious
offences like murder, rape, dacoity, etc., or
other offences of mental depravity under IPC
or offences of moral turpitude under special
statutes, like the Prevention of Corruption
Act or the offences committed by public
servants while working in that capacity, the
settlement between the offender and the
victim can have no legal sanction at all.
However,
certain
offences
which
overwhelmingly and predominantly bear
civil flavour having arisen out of civil,
mercantile,
commercial,
financial,
partnership or such like transactions or the
offences
arising
out
of
matrimony,
particularly relating to dowry, etc. or the
family dispute, where the wrong is basically
to the victim and the offender and the victim
have settled all disputes between them
amicably, irrespective of the fact that such
offences have not been made compoundable,
the High Court may within the framework of
its inherent power, quash the criminal
proceeding or criminal complaint or FIR if it
is satisfied that on the face of such
settlement, there is hardly any likelihood of
the offender being convicted and by not
quashing the criminal proceedings, justice
shall be casualty and ends of justice shall be
defeated. The above list is illustrative and not
exhaustive. Each case will depend on its own
facts and no hard-and-fast category can be
prescribed."
30.
The Apex Court in CBI v.
Duncans Agro Industries Ltd., (1996) 5 SCC
591, at page 608 in para 29 observed that
when parties compromise there civil dispute
for which criminal proceedings are pending
than the criminal proceedings may deemed
to be compromised specially when criminal
proceedings were not initiated for long time :
"29. In the facts of the case, it
appears to us that there is enough
justification for the High Court to hold that
the case was basically a matter of civil
dispute. The Banks had already filed suits for
recovery of the dues of the Banks on account
of credit facility and the said suits have been
compromised on receiving the payments
from the companies concerned. Even if an
offence of cheating is prima facie constituted,
such offence is a compoundable offence and
compromise decrees passed in the suits
instituted by the Banks, for all intents and
purposes, amount to compounding of the
offence of cheating. It is also to be noted that
a long time has elapsed since the complaint
was filed in 1987. It may also be indicated
that although such FIRs were filed in 1987
and 1989, the Banks have not chosen to
institute any case against the alleged erring
officials despite allegations made against
them in the FIRs.