# Virendra Tiwari & Ors v. State of U.P. & Anr. 786 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 10 ILRA 785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-08
- **Case number:** Application U/S 482. No. 1777 of 2022
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-tiwari-ors-v-state-of-u-p-anr-786-indian-law-reports-allahabad-series-54735
- **Pages:** 17

## Headnote

G.A., Banwari Lal, Bhup Chandra Singh

Issue for consideration
Matter
pertains
to
quashing
of
criminal
complaint out of vengeance.

Headnotes
Complaint lodged out of mala fide intentionafter a lapse of 15 days from the date of lodging
of the FIR by applicant no.1 against the
husband and brother-in-laws of the opposite
party no.2-instituted the said complaint just to
settle her personal score -made allegation of
outraging modesty of her niece -so that the
criminal colour can be given and the matter can
be settled between the parties- complaint is out
of vengeance- Court can interfere under Section
482 CrPC. Application allowed. (E-9)

Case Law Cited

## Text

_Characters 0–39,886 of 57,218. This is a partial read: ask again with offset=39886 for what follows._

10 All. Virendra Tiwari & Ors. Vs. State of U.P. & Anr.
785
approach the NOIDA Authority, which
would, after considering all aspects of the
matter then decide the issue in accordance
with law. The NOIDA Authority has
precisely accepted the solemn undertaking
of the petitioner-company and released the
token amount.

7.2. Secondly, the petitioner-company
voluntarily gave a solemn undertaking that
it
would
not
claim
interest.
This
undertaking was material, which was
accordingly acted upon by the NOIDA
Authority, and the petitioner-company
received the full benefit of refund on that
basis. The petitioner-company is now
estopped
from
resiling
from
that
undertaking.

7.3. Thirdly, in view of the terms and
conditions of the allotment, which had been
voluntarily accepted by the petitionercompany, there is no stipulation regarding
refund with interest. On the contrary, the
petitioner-company was in default, its
allotment was cancelled, and the token
money was forfeited. Even otherwise, no
right to claim interest can be accorded
contrary to the agreed terms and conditions
of the allotment letter.

7.4. Fourthly, the conduct of the
petitioner-company throughout has been
inconsistent and demonstrates a lack of
bona fides. The repeated attempts to claim
interest despite having waived that right
amount to abuse of process.

7.5. We must also observe that while
the NOIDA Authority could perhaps have
handled the matter with greater expedition
and sensitivity, the petitioner's own conduct
and repeated defaults in complying with the
payment
schedules
contributed
significantly to the unfortunate situation.
The principle of clean hands requires that a
party approaching a Court in equity must
itself have acted fairly and in accordance
with its
obligations. The
petitioner's
changing stands, i.e. first seeking extension
of time for initial deposit, then seeking
execution of lease deed, then seeking
refund, then giving undertaking, then
seeking interest, then withdrawing that
claim, and finally again seeking interest, do
not inspire confidence in the bona fides of
the litigation. This conduct must be taken
into
account
while
considering
the
equitable relief sought.

7.6. For all these reasons, we find no
merit whatsoever in the instant writ
petition.
The
impugned
order
dated
06.03.2023 passed by Respondent No.3 is
perfectly legal and does not warrant any
interference by this Court. Similarly, Item
No. 18 of the 208th Board Meeting dated
28.12.2022, insofar as it relates to nonpayment of interest, is also valid and
sustainable
under
the
facts
and
circumstances of the case.

G. FINAL ORDERS:-
8. In light of our detailed examination of
contentions raised by the parties, the
comprehensive analysis of the factual and
legal matrix, and the resultant conclusion,
we uphold the order dated 06.03.2023
passed
by
the
respondent
No.3.
Accordingly, the writ petition fails and is
dismissed. However, in the facts and
circumstances of the case, there shall be no
order as to costs.
----------
(2025) 10 ILRA 785
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.10.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482. No. 1777 of 2022

Virendra Tiwari & Ors. .....Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
786 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Abhijeet Jaiswal, Rani Singh

Counsel for the Opposite Parties:
G.A., Banwari Lal, Bhup Chandra Singh

Issue for consideration
Matter
pertains
to
quashing
of
criminal
complaint out of vengeance.

Headnotes
Complaint lodged out of mala fide intentionafter a lapse of 15 days from the date of lodging
of the FIR by applicant no.1 against the
husband and brother-in-laws of the opposite
party no.2-instituted the said complaint just to
settle her personal score -made allegation of
outraging modesty of her niece -so that the
criminal colour can be given and the matter can
be settled between the parties- complaint is out
of vengeance- Court can interfere under Section
482 CrPC. Application allowed. (E-9)

Case Law Cited
1. State of Haryana and Ors. Vs. Bhajan Lal and
Ors., 1992 Supp (1) SCC 335
2. Priyanka Srivastava and Anr. Vs. State of UP
and Ors. (2015) 6 SCC 287
3. Vineet Kumar and Ors. Vs. State of UP and
Ors. (2017) 13 SCC 369
4. Pepsi Foods Ltd. And Anr. Vs. Special Judicial
Magistrate and Ors. reported in (1998) 5 SCC
749

List of Acts
1.Indian Penal Code
2. POCSO Act

List of Keywords
to apply his mind; examining all the attending
circumstances and document; personal score;
complaint is out of vengeance.

Appearances of parties
Counsel for Applicant(s) : Abhineet Jaiswal, Rani
Singh
Counsel for Opposite Party(s) : G.A., Banwari
Lal, Bhup Chandra Singh

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard learned counsel for the
applicants and learned AGA for the State.
2. The present application has been
filed with the prayer to quash the entire
proceedings arising out of impugned order
dated
02.01.2020
in
counter-blast
Complaint Case No.02 of 2020 (Sumitra
Tiwari Vs. Virendra Tiwari and Others)
pending in the Court of Learned Court of
Additional Session Judge/ Special Judge -
POCSO Act, Court No. 12, Sultanpur and
the impugned summoning order dated
01.01.2020 passed by the Additional
Session Judge/ Special Judge - POCSO
Act, Court No. 12, Sultanpur issuing
summons against the applicants under
Sections 323, 504, 506, 354, 511 I.P.C and
Section 7/8 of POCSO Act.?
3. Brief facts of the case are that
the opposite party no.2 is the wife of
Acheram Tiwari, son of Shri Matapher
Tiwari and also the complainant. The
applicant no.1 lodged FIR bearing Case
Crime No.533 of 2019 under Sections 323,
336, 354(kha), 504, 506 IPC and Section
7/8 of POCSO Act against the husband of
applicant no.2 and her family members.
The allegation in the aforesaid FIR is that
Acheram Tiwari along with two accused,
namely, Sanjay Tiwari and Anil Tiwari
molested the 16 years? old niece of
applicant no.1 and when she raised alarm,
another niece of applicant no.1 rushed to
rescue her. Against the said incident, the
FIR bearing Case Crime No.533 of 2019
was lodged on 27.08.2019, under Sections
323, 336, 354(kha), 504, 506 IPC and
Section 7/8 of POCSO Act against
Acheram Tiwari, Sanjay Tiwari and Anil
Tiwari. On the date of alleged incident i.e.
27.08.2019, the police reached to the place
of incident after receiving call from
applicant no.1 on Dial 100 and the police
party was also attacked by the husband of
opposite party no.2 and his brothers, Sanjay
10 All. Virendra Tiwari & Ors. Vs. State of U.P. & Anr.
787
Tiwari and Anil Tiwari. Therefore, the
police lodged FIR bearing Case Crime
No.534 of 2019 under Sections 307, 353,
332, 336, 392, 323, 504, 506 IPC against
the aforesaid persons.

4. The investigation was completed
by the police in Case Crime No.533 of
2019 and charge sheet was filed by the
Investigating Officer on 26.09.2019 under
Sections 323, 336, 354 (kha), 427, 504, 506
IPC and 7/8 of POCSO Act.

5. He further submitted that the
applicant nos.2 and 3 are the witnesses in
the charge-sheet. The investigation of Case
Crime No.534 of 2019 was also concluded
by the investigating officer against the
accused, Acheram Tiwari, Sanjay Tiwari
and Anil Tiwari and charge sheet was
submitted under Sections 307, 323, 353,
332, 336, 392, 504, 506 IPC on 05.10.2019.
Thereafter, when the aforesaid two FIRs
were registered against the husband and
brother-in-laws of opposite party no.2, the
applicants were informed that one of the
brother-in-laws of opposite party no.2,
namely Sanjay Tiwari in order to save their
skin moved a false complaint before
learned Court of Additional Chief Judicial
Magistrate, Court No.17, Sultanpur on
11.09.2019 wherein, the allegation is
levelled to the extent that alleged incident
dated 27.08.2019 never happened, under
Sections 323, 325, 504, 506, 147, 392, 427,
452 IPC. The complainant- Sanjay Tiwari
in the aforesaid case had made concocted
stories of incident dated 27.08.2019.

6. The aforesaid main accused
persons, namely Acheram Tiwari, Sanjay
Tiwari and Anil Tiwari could not find any
immediate favour from the learned Court of
Additional Chief Judicial Magistrate, Court
No.17, Sultanpur then the opposite party
no.2 in order to wreak vengeance against
the applicants for having lodged the FIR
No.533 of 2019 against her husband and
brother-in-laws, moved an application U/S
156(3) Cr.P.C. before the learned Special
Court on 12.09.2019, after 15 days from
the lodging of FIR No.533 of 2019 against
the named persons by the applicant no.1.
The learned judge sought report from the
police in pursuance of the application U/S
156(3) Cr.P.C. The report was submitted by
the police (police report has been annexed
as annexure no.3 to the supplementary
affidavit) and the police has reported that
the fact came to the knowledge that on
27.08.2019, applicant no.1 had lodged the
FIR No.533 of 2019 against Acheram Ram
Tiwari, in which, it is mentioned that the
modesty of his niece was outraged. Police
has also supported that due to personal
vengeance, the complaint has been lodged
by the opposite party no.2, which appears
to be false and out of malicious intention.
The statements under Sections 200 and 202
of CrPC were also recorded, thereafter, the
summons have been issued against the
applicants.

7. It has been submitted that the
Magistrate while issuing summoning order
has not given due consideration to the fact
that police had already given report of the
incident that to settle the personal score, the
complaint has been filed and the Magistrate
is silent on the aforesaid issue.

8. It has been submitted by the
learned counsel for the applicants that false
allegations have been leveled by opposite
party no.2 against the applicants by filing
the application U/S 156(3) Cr.P.C. which
was filed on 12.09.2019 with the intention
to exert pressure upon the applicants so that
applicant
no.1
would
refrain
from
prosecuting the husband and brother-in-
788 INDIAN LAW REPORTS ALLAHABAD SERIES
laws of opposite party no.2 in FIR No.533
of 2019 and applicant no.2 and 3, who are
witnesses to the incident of the FIR No.533
of 2019 and FIR No.534 of 2019 do not
give their statements.

9. It is next submitted that it is a
case of counter-blast and out of retaliation,
the complaint has been filed, it has further
been
submitted
that
while
moving
application
U/S
156(3)
Cr.P.C.,
the
opposite party no.2 did not make any
mention about the fact that on 27.08.2019,
an FIR was lodged. It is further submitted
that in the complaint moved before the
learned Chief Judicial Magistrate, Court
No.17, Sultanpur on 11.09.2019, neither
the fact that the FIR Nos.533 of 2019 and
534 of 2019 lodged against him and his
brothers on 27.08.2019 is disclosed nor the
incident dated 03.09.2019, as stated in the
application U/S 156(3) Cr.P.C. filed by the
opposite party no.2 against the applicants
before the learned Special Court on
12.09.2019 is disclosed.

10. The learned counsel for the
applicants has submitted that after going
through the facts and circumstances of the
case, it is clear that malicious proceedings
have been initiated by opposite party no.2
out of retaliation of the FIR lodged by the
applicants.

11. In support of his submission,
learned counsel for the applicants has also
placed reliance on the judgment of the
Hon?ble Apex Court passed in the case of
State of Haryana and Ors. Vs. Bhajan Lal
and Ors. reported in 1992 Supp (1) SCC
335. He has specifically relied upon the
guidelines of the aforesaid judgment as
mentioned
in
para
no.102
and
has
submitted that the category of cases where
power can be exercised U/S 482 Cr.P.C.,
has been enunciated by the Hon?ble Apex
Court in seven points in the following
manner:

 "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 ciently
channelised and inflexible guidelines or
rigid formulate and to give an exhaustive
list of myriad kinds of cases wherein such
power should be exercised.

 (1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

 (2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the 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.
10 All. Virendra Tiwari & Ors. Vs. State of U.P. & Anr.
789
 (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."

12. The learned counsel for the
applicant has relied on the judgment of
Priyanka Srivastava and Anr. Vs. State of
UP and Ors. reported in (2015) 6 SCC 287.
Relevant portion of the aforesaid judgment
is as under:

 "29. At this stage it is seemly to
state that power under Section 156(3)
warrants application of judicial mind. A
court of law is involved. It is not the police
taking steps at the stage of Section 154 of
the Code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A
principled and really grieved citizen with
clean hands must have free access to
invoke the said power. It protects the
citizens but when pervert litigations takes
this route to harass their fellow citizens,
efforts are to be made to scuttle and curb
the same.

 30. In our considered opinion, a
stage has come in this country where
Section 156(3)

 CrPC applications are to be
supported by an affidavit duly sworn by the
applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart,
in an appropriate case, the learned
Magistrate would be well advised to verify
the truth and also can verify the veracity of
the allegations. This affidavit can make the
applicant
more
responsible.
We
are
compelled to say so as such kind of
applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons.
That apart, it becomes more disturbing and
alarming when one tries to pick up people
who are passing orders under a statutory
provision which can be challenged under
the framework of the said Act or under
Article 226 of the Constitution of India. But
it cannot be done to take undue advantage
in a criminal court as if somebody is
determined to settle the scores.

 31. We have already indicated
that there has to be prior applications
under Sections 154(1) and 154(3) while
filing a petition under Section 156(3). Both
the aspects should be clearly spelt out in
the application and necessary documents to
that effect shall be filed. The warrant for
790 INDIAN LAW REPORTS ALLAHABAD SERIES
giving a direction that an application under
Section 156(3) be supported by an affidavit
is so that the person making the application
should be conscious and also endeavour to
see that no false affidavit is made. It is
because once an affidavit is found to be
false, he will be liable for prosecution in
accordance with law. This will deter him to
casually invoke the authority of the
Magistrate under Section 156(3). That
apart, we have already stated that the
veracity of the same can also be verified by
the learned Magistrate, regard being had
to the nature of allegations of the case. We
are compelled to say so as a number of
cases
pertaining
to
fiscal
sphere,
matrimonial
dispute/family
disputes,
commercial offences, medical negligence
cases, corruption cases and the cases
where there is abnormal delay/laches in
initiating criminal prosecution, as are
illustrated in Lalita Kumariss are being
filed. That apart, the learned Magistrate
would also be aware of the delay in lodging
of the FIR"

13. It has been submitted by
learned counsel for the applicants that the
opposite party no.2 filed a complaint not
with clean hands and she suppressed the
material facts and also did not disclose
about the earlier FIRs lodged against the
accused persons who belonged to her side.

14.
Learned
counsel
for
the
applicants has also relied on the judgment
of Vineet Kumar and Ors. Vs. State of UP
and Ors. reported in (2017) 13 SCC 369.
Relevant paragraphs of the aforesaid
judgment are as under:
 "24. The judgment of this Court
in State of Haryana v. Bhajan La has
elaborately considered the scope and ambit
of Section 482 CPC. Although in the above
case this Court was considering the power
of the High Court to quash the entire
criminal proceeding including the FIR, the
case arose out of an FIR registered under
Sections 161, 165 IPC and Section 5(2) of
the Prevention of Corruption Act, 1947.
This Court elaborately considered the
scope of Section 482 CrPC/Article 226 of
the Constitution in the context of quashing
the proceedings in criminal investigation.
After
noticing
various
earlier
pronouncements of this Court, this Court
enumerated certain categories of cases by
way of illustration where power under
Section 482 CrPC can be exercised to
prevent abuse of the process of the Court
or secure the ends of justice.

 25. Para 102 which enumerates 7
categories of cases where power can be
exercised under Section 482 CrPC is
extracted as follows : (Bhajan Lal case,
SCC pp. 378-79)
 "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
10 All. Virendra Tiwari & Ors. Vs. State of U.P. & Anr.
791
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 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 Act concerned (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 Act
concerned, 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."

 26. A three-Judge Bench in State
of Karnataka v. M. Devendrappaz had the
occasion to consider the ambit of Section
482 CPC. By analysing the scope of
Section 482 CrP, this Court laid down that
authority
of
the
Court
exists
for
advancement of justice and if any attempt is
made to abuse that authority so as to
produce injustice the Court has power to
prevent abuse. It further held that Court
would be justified to quash any proceeding
if it finds that initiation/continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would
otherwise serve the ends of justice. The
following was laid down in para 6 : (SCC
p. 94)

 "6.... All courts, whether civil or
criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in course of administration of justice
on the principle quando lex aliquid alicui
concedit, concedere videtur et id sine quo
res ipsae esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
court does not function as a court of appeal
or revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae
792 INDIAN LAW REPORTS ALLAHABAD SERIES
to do real and substantial justice for the
administration of which alone courts exist.
Authority
of
the
court
exists
for
advancement of justice and if any attempt i
made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and prevent
promotion of justice. In exercise of the
powers court would be justified to quash
any
proceeding
if
it
finds
that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise serve
the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the accepted in totes alleged
and whether any offence is made out even if
the allegations are

 27. Further in para 8 the
following was stated: (Devendrappa case,
SCC p. 95)

 "8. " Judicial process should not
be an instrument of oppression, or,
needless harassment. Court should be
circumspect and judicious in exercising
discretion and should take all relevant facts
and
circumstances
into
consideration
before issuing process, lest it would be an
instrument in the hands of a private
complainant to unleash vendetta to harass
any person needlessly. At the same time the
section is not an instrument handed over to
an accused to short-circuit a prosecution
and bring about its sudden death. The
scope of exercise of power under Section
482 of the Code and the categories of cases
where the High Court may exercise its
power under it relating to cognizable
offences to prevent abuse of process of any
court or otherwise to secure the ends of
iustice were set out in some detail by this
Court in State of Harvana v. Bhajan Lal."

 28. In Sunder Babu v. State of
T.N.&, this Court was considering the
challenge to the order of the Madras High
Court where application was under Section
482 CPC to quash criminal proceedings
under Section 498-A IPC and Section 4 of
the Dowry Prohibition Act, 1961. It was
contended before this Court that the
complaint filed was nothing but an abuse of
the process of law and allegations were
unfounded.
The
prosecuting
agency
contested the petition filed under Section
482 CrPC taking the stand that a bare
perusal
of
the
complaint
discloses
commission of alleged offences and,
therefore, it is not a case which needed to
be allowed. The High Court accepted the
case of the prosecution and dismissed the
application. This Court referred to the
judgment in Bhajan Lal cases and held that
the case fell within Category 7. The Apex
Court relying on Category 7 has held that
the application under Section 482 deserved
to be allowed and it quashed the
proceedings.

 29. In another case in Priya Vrat
Singh v. Shyam Ji Sahai, this Court relied
on Category 7 as laid down in State of
Haryana v. Bhajan La. In the above case
the Allahabad High Court had dismissed
an application filed under Section 482
CrPC to quash the proceedings under
Sections 494, 120-B and 109 IPC and
Sections 3 and 4 of the Dowry Prohibition
Act. After noticing the background facts
and parameters for exercise of power
under Section 482 CrPC the following was
stated in paras 8 to 12 : (Priya Vrat cases,
SCC pp. 235-36),
10 All. Virendra Tiwari & Ors. Vs. State of U.P. & Anr.
793
 8. Further it is pointed out that
the allegation of alleged demand for dowry
was made for the first time in December
1994. In the complaint filed, the allegation
is that the dowry turture was made
someitme in 1992. It has not been
explained as to why for more than two
years no action was taken.

 9. Further, it appears that in the
complaint petition apart from the husband,
the mother of the husband, the subsequently
married wife, husband's mother's sister,
husband's brother-in-law and Sunita's
father were impleaded as party. No role
has been specifically ascribed to anybody
except the husband and that too of a dowry
demand in February 1993 when the
complaint was filed on 6-12-1994 i.e.
nearly after 22 months. It is to be noted
that in spite of service of notice, none has
appeared on behalf of Respondent 1.

 10. The parameters for exercise
of power under Section 482 CrPC have
been laid down by this Court in several
cases.

 11. '19. The section does not
confer any new power on the High Court. It
oniy saves the inherent power which the
Court possessed before the enactment of
the Code. It envisages three circumstances
under which the inherent jurisdiction may
be exercised, namely, (1) to give effect to
an order under the Code, (il) to prevent
abuse of the process of court, and iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay down
any inflexible rule which would govern the
exercise of inherent jurisdiction. No
legislative
enactment
dealing
with
procedure can provide for all cases that
may possibly arise. Courts, therefore, have
inherent
powers
apart
from
express
provisions of law which are necessary for
proper discharge of functions and duties
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognises and
preserves inherent powers of the High
Courts. All courts, whether civil or
criminal, possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in course of administration of justice
on the principle quando lex aliquid alicui
concedit, concedere videtur id sine quo res
ipsa esse non potest (when the law gives a
person anything it gives him that without
which it cannot exist). While exercising
powers under the section, the Court does
not function as a court of appeal or
revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully anc with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito justitiae
to do real and substantial justice for the
administration of which alone courts exist.
Authority
of
the
court
exists
for
advancement of justice and if any attempt is
made to abuse that authority so as to
produce injustice, the court has power to
prevent abuse. It would be an abuse of
process of the court to allow any action
which would result in injustice and prevent
promotion of justice. In exercise of the
powers court would be justified to quash
any
proceeding
if
it
finds
that
initiation/continuance of it amounts to
abuse of the process of court or quashing
of these proceedings would otherwise serve
the ends of justice.

 20. As noted above, the powers
possessed by the High Court under Section
482 of the Code are very wide and the very
794 INDIAN LAW REPORTS ALLAHABAD SERIES
plenitude of the power requires great
caution in its exercise. Court must be
careful to see that its decision in exercise of
this power is based on sound principles.
The inherent power should not be exercised
to stifle a legitimate prosecution. The High
Court being the highest court of a State
should normally refrain from giving a
prima facie decision in a case where the
entire facts are incomplete and nazy, more
so when the evidence has not been
collected and produced before the Court
and the issues involved, whether factual or
legal, are of magnitude and cannot be seen
in their true perspective without sufficient
material. Of course, no hard-and-fast rule
can be laid down in regard to cases in
which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage.'

 (See
Janata
Dal
v.
H.S.
Chowdhary, Raghubir Saran v. State of
Bihar and Minu Kumari v. State of Bihar2,
SCC p. 366, paras 19-20.)

 12. The present case appears to
be
one
where
Category
7
of
the
illustrations given in State or Haryana v.
Bhajan La/? is clearly applicable."

 30. From the material on records,
the following facts are disclosed from the
sequence of events which preceded the
registration of FIR on 6-11-2015. The
complainant, her husband and son had
taken different amounts totalling Rs 22
lakhs 50 thousand in the month of May
2015 for business/shop purposes from the
accused. Three agreements were written on
non-judicial stamp papers on 29-5-2015, 16-2015
and
31-8-2015
wherein
the
complainant, her husband and son have
acknowledged receipt of the money in cash
as well as by cheque. Cheques of Rs 6
lakhs, Rs 14 lakhs 50 thousand were given
to the accused for ensuring the repayment.
Cheques were drawn on Prathama Bank,
Kanth
Branch,
District
Moradabad.
Cheques were deposited in the bank which
were returned with endorsements "No
Sufficient Balance". After cheques having
been
dishonoured,
complaints
under
Section 138 of the Negotiable Instruments
Act were filed by the accused against the
husband and son of the complainant which
were
registered
in
the
month
of
September/October
and
were
pending
before alleged incident dated 22-10-2015.

 31. The complainant alleges rape
by the accused on 22-10-2015 at 7.30 p.m.
at her house and alleges that on the same
day she went to the police station but FIR
was not registered. She states that after
sending an application on 26-10-2015 to
the SSP, she filed an application under
Section
156(3)
CrPC
before
the
Magistrate. There is no medical report
obtained
by
the
complainant
except
medical report dated 20-11-2015. The IO
on 7-11-2015 when asked the complainant
to get medical examination done, the
complainant and her husband refused. The
incident having taken place on 22-10-2015
at 7.30 p.m. nothing was done by the
complainant and her husband till 26-102015 when she alleges that the application
was sent to SSP.

 32. During investigation, the IO
has recorded the statements of the brother
of the complainant's husband as well as
Smt Bina Vishnoi, the wife of the husband's
brother who were residing in the same
house and have categorically denied that
any incident happened in their house. Both,
in their statements and affidavits have
condemned the complainant for lodging a
false report.
10 All. Virendra Tiwari & Ors. Vs. State of U.P. & Anr.
795
 33. The IO collected affidavits of
several persons including affidavits of
Nikesh Kumar and Smt Bina Vishnoi and
on collecting the entire material and
visiting the spot the IC had come to the
conclusion that no such incident took place
and submitted a final report dated 29-112015. On 29-11-2015 itself, the 10 has
submitted another report for prosecution of
the complainant under Section 182 CrPC
for giving false information to the police.

 34. After submission of final
report and submissions of report under
Section 182 CrPC dated 29-11-2015 the
complainant filed a protest petition on 7-12016.

 35. It is true that in the statement
under Section 164 CPC, the complainant
repeated her allegation. The complainant
has also recorded her age in the statement
as 47 years.

 36. The Magistrate in allowing
the protest petition only considered the
submission made by the State while
summoning the accused in para 6 which is
to the following effect:
 "6. In compliance with the order
passed by the Hon'ble High Court and from
the perusal of evidence and entire case
diary, this Court comes to the conclusion
that the complaint is required to be
registered as police complaint and there
are sufficient grounds to summon the
accused Vinit Kumar, Sonu and Nitendra
for their trial under Sections 376-D, 323
and 352 of the Penal Code, 1860."

 37. The learned Sessions Judge
has also affirmed the order taking note of
statement under Section 164 CrPC.
 38. There was sufficient material
on record to indicate that there were
financial transactions between the accused
and the complainant, her husband and son.
On dishonour of cheques issued by the
complainant's
husband
and
son,
proceedings under Section 138 of the
Negotiable Instruments Act were already
initiated by the accused. All family
members of the complainant were living in
the same house. The brother of the
complainant's husband and his wife, in
their statements before the IO have
admitted monetary transactions of his
brother with the accused. The statements
before the IO of both Nikesh Kumar and
Smt Bina Vishnoi have already been
extracted above, which were part of the
case diary and was material which ought to
have been looked into which was submitted
by the IO in the final report.

 39. The fact is that no medical
examination was got done on the date of
incident or even on the next day or on 7-112015, when the IO asked the complainant
and her husband to get done the medical
examination. Subsequently it was done on
20-11-2015, which was wholly irrelevant.
Apart from bald assertions made by the
complainant that all the accused have
raped her, there was nothing which could
have led the courts to form an opinion that
the present case is a fit case of prosecution
which ought to be launched. We are
conscious that the statement given by the
prosecutrix/complainant under Section 164
CrPC is not to be lightly brushed away but
the
statement
was
required
to
be
considered along with antecedents, facts
and circumstances as noted above.

 40. "Reference to the judgment of
this Court in Prashant Bharti v. State (NCT
of Delhi) 13 is relevant for the present
case. In the above case the complainant
lady aged 21 years lodged an FIR under
796 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 328 and 354 IPC with regard to
the incident dated 15-2-2007. She sent a
telephonic information on 16-2-2007 and
on her statement FIR under Sections 328
and 354 IPC was registered against the
appellant. After a lapse of five days on 212-2007 she gave a supplementary statement
alleging rape by the appellant on 23-122006, 25-12-2006 and 1-1-2007. The
statement under Section 164 CrPC of the
prosecutrix was recorded. Police filed
charge-sheet under Sections 328, 324 and
376 IPC. Charge-sheet although mentioned
that no proof in support of crime under
Sections 328/354 could be found. However,
on the ground of statement made under
Section 164 CrPC charge-sheet was
submitted.

 40.1. Para 10 of the judgment
which notes the charge-sheet is as follows :
(Prashant Bharti case, SCC p. 300)

 "10. On 28-6-2007, the police
filed a charge-sheet under Sections 328,
354 and 376 of the Penal Code. In the
charge-sheet, it was clearly mentioned that
the police investigation, from different
angles, had not yielded any positive result.
However, the charge-sheet was based on
the
statement
made
by
the
complainant/prosecutrix
before
the
Metropolitan Magistrate, New Delhi under
Section 164 of the Code of Criminal
Procedure, which was found to be sufficient
for the charges alleged against the
appellant-accused. A relevant extract of the
charge-sheet
depicting
the
aforesaid
factual position, is being reproduced
below:

 'I, the Inspector, tried my best
from all angles to recover the intoxicating
substance/Pepsi/Pepsi
glass
and
undergarments worn at the time of the
rape. But nothing could be recovered and
for this reason, the blood sample of the
accused could not be sent to FSL. As from
the investigation so far conducted, no proof
could be found in support of the crime
under Sections 328/354 IPC and even the
position of accused Prashant Bharti is not
available at Lodhi Colony at the date and
time as his mobile phone ill (sic). However,
prosecutrix Priya Porwal made statement
on 21-2-2007 and on 27-2-2007 under
Section 164 CPC which is sufficient in
support of his challan for the offence under
Section 376 IPC.'"

 (emphasis in original)

 40.2. The writ petition was filed
by the accused for quashing the FIR which
was dismissed by the High Court on 27-82007. Thereafter, charges were framed on
1-12-2008. Dissatisfied with the framing of
charges criminal revision petition was filed
which was dismissed by the Delhi High
Court on 16-1-20094, The order of the
Additional
Sessions
Judge
has
been
extracted by this Court in para 14 which is
quoted below :

 (Prashant Bharti case13, SCC p.
301)
 "14. Dissatisfied with the action
of the trial court in framing charges
against him, the appellant-accused filed
Criminal Revision Petition No. 08 of 2009,
whereby he assailed the order dated 1-122008 passed by the Additional Sessions
Judge, New Delhi.