# Yashpal & Ors v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Application U/S 482 No. 3032 of 2020
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yashpal-ors-v-state-of-u-p-anr-45840
- **Pages:** 5

## Headnote

98 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Criminal Procedure Code (2
of 1974) - Section 482 - Indian Penal Code
(45 of 1860) - Section 308, 323, 504 -
Allegation that accused abused victim & when
he objected to abuse, all accused persons
started beating him with lathi and danda
causing serious head injury - Medical report
showed fracture of temporal parietal bone and
injury was found grievous in nature - Held -
truthfulness of allegation cannot be considered
in the proceeding under Section 482 Cr.P.C.
before High Court and trial must go on (Para
15)

Application dismissed (E-5)

List of case cited :

1.St. of Haryana & ors. Vs Ch. Bhajan Lal & ors.
(1992) Supp 1 SCC 335

2.Iridium India Telecom Ltd. Vs Motorola
Incorporated & ors. (2011) 1 SCC 74

3.Anil Arya Vs St. of U.P. & ors. Crl. Rev. No.
1216 of 2005 dt 09.09.2016

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

5.St. of Haryana & ors. Vs Bhajan Lal & ors.
(1992) Supp (1) SCC 335

## Text

6 All. Yashpal & Ors. Vs. State of U.P. & Anr.
97
misappropriation or conversion thereof for
own use or dishonest use or disposal of
property in violation of any direction of law
prescribing mode in which property in
which such trust is to be discharged, or of
any legal contract by a person who has
contravened the said provision.

25. Complaint in the present case
shows that there was dues payable by
Accused-applicants to Complainant in
respect whereof a cheque was issued by
Accused-applicants
being
Cheque
No.224449
dated
10.12.2008
for
Rs.1,99,000/- payable at HDFC Bank but
when it was submitted for collection, the
same was dishonoured on the ground of
'insufficient fund'. Complainant again went
to Accused-applicants, who issued another
Cheque No.224450 dated 11.06.2009 for
Rs.4,50,000/- payable at HDFC Bank but
this was returned on the ground that
account has been closed. There is no
averment in the complaint that thereafter
any demand was made by giving any
notice, as provided under Section 138 of
Act, 1881 and compliance thereof was
made. Instead, Complainant has filed above
complaint for trial under Section 406/506
IPC
but
Magistrate,
after
recording
evidence under Sections 200 and 202
Cr.P.C., has summoned applicants under
Sections 406, 420 IPC.

26. Section 406 IPC deals with
offence of criminal breach of trust which is
defined in Section 405 IPC. The first
requirement
of
Section 406
IPC
is
'entrustment of property' by victim to
Accused but there is no such entrustment.
As per complaint, dues payable by
Accused-Applicants
according
to
averments made by Complainant satisfy
liability as 'debt' but cannot be treated to be
entrustment of property by Complainant to
Accused persons and when there is no
entrustment,
question
of
dishonest
misappropriation or conversion of such
property to own use by such persons does
not arise. Even Explanation 1 and 2 of
Section 405 IPC are not attracted in the
case in hand since there is no deduction of
wages by employer for deposit in concern
fund under Employees' Provident Funds
and Miscellaneous Provisions Act, 1952
and Employees' State Insurance Act, 1948.
Therefore, Section 406 is not at all
attracted.

27. In view of discussions made
hereinabove and considering the allegations
contained in the complaint in the case in
hand, in the light of above authorities,
proceedings are liable to be quashed.

28. The application is allowed.
Criminal proceedings in Complaint Case
No. 2688 of 2011, Babu Lal Gaur vs. Smt.
Archana Gupta and others, under Sections
406 and 420 IPC, pending in the Court of
Special Chief Judicial Magistrate (Custom),
Lucknow are hereby quashed.
----------
(2020)06ILR A97
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.02.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Application U/S 482 No. 3032 of 2020

Yashpal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Suresh Kumar Verma

Counsel for the Opposite Parties:
A.G.A.
98 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Criminal Procedure Code (2
of 1974) - Section 482 - Indian Penal Code
(45 of 1860) - Section 308, 323, 504 -
Allegation that accused abused victim & when
he objected to abuse, all accused persons
started beating him with lathi and danda
causing serious head injury - Medical report
showed fracture of temporal parietal bone and
injury was found grievous in nature - Held -
truthfulness of allegation cannot be considered
in the proceeding under Section 482 Cr.P.C.
before High Court and trial must go on (Para
15)

Application dismissed (E-5)

List of case cited :

1.St. of Haryana & ors. Vs Ch. Bhajan Lal & ors.
(1992) Supp 1 SCC 335

2.Iridium India Telecom Ltd. Vs Motorola
Incorporated & ors. (2011) 1 SCC 74

3.Anil Arya Vs St. of U.P. & ors. Crl. Rev. No.
1216 of 2005 dt 09.09.2016

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

5.St. of Haryana & ors. Vs Bhajan Lal & ors.
(1992) Supp (1) SCC 335

(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri Suresh Kumar Verma,
learned counsel for applicant, learned AGA
for State and perused the material available
on record.

2. Applicants Yashpal. Vikas and
Subhash have filed an application under
Section 482 Cr.P.C., with the following
prayer :-

"to quash the entire proceeding
as well as charge sheet dated 10.08.2018
and cognizance order dated 23.07.2019
filed in Criminal Case No.207/9 of 2019
(State Vs. Subhash Chandra and others)
arising out of Case Crime No.211 of 2018
under Section 308, 323, 504 I.P.C., Police
Station- Rajpura, District- Bheem Nagar,
pending in the court of Civil Judge (Senior
Division)/
Additional
Chief
Judicial
Magistrate Chandausi."

3. Learned counsel for the applicants
submits that the applicants are innocent and
they have committed no offence. No case is
made out under Section 308 I.P.C..
Investigating Officer did not collected
proper evidence. This is a counter blast
case. Victim has not been medically
examined by the panel of the Doctors. As
per injury report of injured Rahul, all the
injuries found on his person hard and blunt
object and simple in nature. He showed
some document and statement in support of
his contentions.

4. Learned A.G.A. opposed the prayer
of application and submitted that as per
supplementary report of victim Fracture
temporal parietal bone and injury was
found grevious in nature. It is further
submitted by learned A.G.A. that applicants
have
committed
crime.
Investigating
Officer rightly collected the evidence and
finding sufficient evidence against accused
submitted the charge-sheet. There is no
illegality or irregularities in submitting the
charge-sheet.

5. Brief facts of the case which need
to be noted for disposal of present case
are:-

On 12.06.2018 at about 08.30
P.M. accused Yaspal, Vikash and Subhash
started abusing him. When he objected to
abuse, all accused persons started beating
6 All. Yashpal & Ors. Vs. State of U.P. & Anr.
99
him with lathi and danda causing serious
head injury. Incident was witness by
Nauvatram and Kaushal who saved him.
Accused persons ran away extending thread
to kill him. On the basis of medical report
of victim, case was converted into the
aforesaid section. Matter was investigated
and Investigating Officer who collected the
evidence and found sufficient evidence and
submitted charge-sheet against the accused
applicant which is under challenge in the
present application.

6. As per injury report of injured
Rahul three injuries were found on his
person out of them one Traumatic swelling
on the left side of skull injury was kept
under
observation
and
two
others
contusions.

7. I have considered the rival
submissions made by the parties and
perused the records.

8. Before I enter into the facts of the
present case it is necessary to consider the
ambit and scope of jurisdiction under
Section 482 Cr.P.C. vested in the High
Court. Section 482 Cr.P.C. saves the
inherent power of the High Court to make
such orders as may be necessary to give
effect to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice.

9. It is settled that the power under
Section 482 Cr.P.C. is not to be exercised in
a routine manner, but it is for limited
purposes, namely, to give effect to any
order under the Code, or to prevent abuse
of process of any Court or otherwise to
secure ends of justice.

10. Time and again, Apex Court and
various High Courts, have reminded when
exercise of power under Section 482 Cr.P.C.
would be justified, which cannot be placed in
straight jacket formula, but one thing is very
clear that it should not pre-empt a trial and
cannot be used in a routine manner so as to cut
short the entire process of trial before the Courts
below. If from a bare perusal of first
information report or complaint, it is evident
that it does not disclose any offence at all or it is
frivolous, collusive or oppressive from the face
of it, the Court may exercise its inherent power
under Section 482 Cr.P.C. but it should be
exercised sparingly. This will not include as to
whether prosecution is likely to establish its
case or not, whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it, accusation would not be
sustained, or the other circumstances, which
would not justify exercise of jurisdiction under
Section 482 Cr.P.C. (See : State of Haryana
and others Vs. Ch. Bhajan Lal and others
1992 Supp (1) SCC 335 and Iridium India
Telecom Ltd. Vs. Motorola Incorporated
and Ors. 2011 (1) SCC 74.

11. In Anil Arya v. State of U.P. and
Others, Criminal Revision No. 1216 of 2005,
decided on 09.09.2016, this Court held as
under :-

"Whether evidence is correct or not or
credible enough or not to sustain conviction
and punishment is a matter which would be
seen after revisionist put in appearance, lead
evidence and thereafter Trial Court examine the
entire evidence and record its finding thereon,
but at the stage of summoning of revisionist on
the basis of aforesaid statement in Trial under
Section 319 Cr.P.C., the probable defence of
accused summoned under Section 319 Cr.P.C.
cannot be examined for the first time in a
revisional jurisdiction by this Court."

12. In Md. Allauddin Khan Vs. The
State of Bihar and others, (2019) 6 SCC
100 INDIAN LAW REPORTS ALLAHABAD SERIES
107, 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 :-

"12. The High Court should have
seen that when a specific grievance of the
appellant in his complaint was that
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.

13. 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.

14. 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."

13. In State of Haryana and others
v. Bhajan Lal and others, 1992 Supp (1)
SCC 335, Court has elaborately considered
the scope and ambit of Section 482 Cr.P.C.
Although in the above case 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 Section 161, 165 IPC
and Section 5(2) of the Prevention of
Corruption Act, 1947. Court elaborately
considered the scope of Section 482
Cr.P.C./ Article 226 of the Constitution of
India in the context of quashing the
proceedings in criminal investigation. After
noticing various earlier pronouncements of
Court, Court enumerated certain Categories
of cases by way of illustration where power
under Section 482 Cr.P.C. can be exercised
to prevent abuse of the process of the Court
or secure ends of justice. Paragraph 102
which enumerates 7 categories of cases
where power can be exercised under
Section 482 Cr.P.C. are extracted as
follows:

"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
6 All. Geetanjali Vs. State of U.P. & Ors.
101
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 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."

14. From the perusal of allegations made in
the F.I.R. and evidence collected by I.O. during
investigation, it is not a case of grave injustice.
Learned counsel for applicants could not show
any irregularity and illegality to investigation.

15. The allegation levelled against them
can be adjudicated only after the evidence and
truthfulness of allegation cannot be considered in
the proceeding under Section 482 Cr.P.C. before
this Court and trial must go on.

16. Considering facts and circumstances of
the case, allegation made in F.I.R., injury report
of victim and legal preposition discussed herein
before, application under Section 482 Cr.P.C.
fails and is accordingly dismissed.
----------
(2020)06ILR A101
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 4383 of 2020

Geetanjali ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Shailendra Kumar Yadav, Mahesh
Prasad Yadav

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

Criminal Law - Criminal Procedure Code (2
of 1974) - Section 203, 204 - Conditions for
issuing process - Dismissal of complaint before
issuing process - Held - Magistrate must apply
his mind to a complaint & see whether