Allahabad High Court
Dinesh Kumar Yadav vs State Of U.P. And 3 Others on 11 April, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:53855 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 11932 of 2025 Applicant :- Dinesh Kumar Yadav Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Satya Priya Mishra Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. This application under Section – 528 BNSS has been preferred for quashing of the entire proceedings, including summoning order dated 14.02.2019, of Complaint Case No. 3707 of 2012, under Sections – 419, 420, 506 I.P.C., Police Station – Chilha, District – Mirzapur, pending before the Court of Chief Judicial Magistrate, Mirzapur. The order dated 20.02.2025, passed by the Additional District & Sessions Judge, Court No.3, Mirzapur in Criminal Revision No. 46 of 2019, is also being impugned.
3. It is submitted by learned counsel for applicant that the opposite party no.2 has lodged the impugned complaint making false and baseless allegations and no prima facie case is made out against applicant. The allegation that applicant has received the A.T.M. card of complainant from the postman is wholly false and there is no evidence that applicant has withdrawn any amount from the A.T.M. card of the complainant. No statement of said postman has been recorded to prove the said allegation. Except statement of complainant, there is no other credible evidence to support the version of complainant. It was submitted that learned Magistrate has not considered the facts of the matter and summoned the applicant for offence under Section – 419, 420, 506 I.P.C. The applicant has preferred a criminal revision against summoning order dated 14.02.2019 but the revision has also been dismissed in an arbitrary manner without considering facts and law. It was submitted that both the impugned orders and the impugned proceedings are liable to be quashed.
4. Learned A.G.A. has opposed the application and submitted that the name of applicant as well as of the complainant is same and that complainant has applied to the bank for A.T.M. card. When the said A.T.M. card was sent by the post, it was received by the applicant-accused and he has withdrawn amount from the said A.T.M. card by way of cheating and forgery. Learned A.G.A. has referred statement of complainant and of witnesses and submitted that a prima facie case is made out against applicant.
5. I have considered the rival submissions and perused the record.
6. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment of State of Haryana and others Vs. Ch. Bhajan Lal AIR 1992 SC 605, Hon’ble Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash F.I.R. or proceedings should be exercised sparingly and that too in the rarest of rare cases.
7. At this stage, it would be pertinent to mention that revision against summoning order dated 14.02.2019 has already been dismissed by the Session Court. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 Cr.P.C. but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.
8. In Deepti alias Arati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held:
“3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice.”
9. Similarly in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon’ble Supreme Court held that-
” …. Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. Onthis short ground itself, the impugned order of the High Court can be set aside.”
10. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:-
“In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person – accused/complainant – cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.”
11. Thus, once the revision against summoning order is dismissed, the High Court in power under Section – 482 Cr.P.C. would interfere only where it is shown that if the complaint is allowed to be proceeded with, it would amount to abuse of the process of Court or that interest of justice otherwise call for quashing of the complaint. The provisions of Section – 482 Cr.P.C. have reincarnated in Section – 528 of BNSS. Hence, similar analogy would be applicable in respect of application under Section – 528 BNSS.
12. In the instant matter, perusal of record shows that the opposite party no.2/complainant has made allegation in the complaint that he was having a saving bank account in State Bank, Mirzapur and that when his A.T.M. card was sent by post, it was got received by the applicant. It was alleged that from 05.11.2011 to onwards the applicant has withdrawn amount from said A.T.M. card on several occasions during period of six months. On 01.03.2012 when opposite party no.2 has gone to the bank to withdraw amount, he came to know that amount is being withdrawn from his A.T.M. card and thereafter he came to know that applicant has committed the said mischief. The opposite party no.2/complainant has supported the said version in his statement under Section – 200 Cr.P.C.. The witnesses Vijay Bahadur and Kamlesh Kumar Pankaj, who have been examined under Section – 202 Cr.P.C., have also supported the version of complainant. In view of material on record, it cannot be said that no prima facie case is made out against applicant. Further, the revision against summoning order has already been dismissed. In such situation the interference under Section 528 B.N.S.S. can only be made in case when there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice. In the instant matter no such case is made out. Applying the principles set out in the judgments referred above to the case on hand, no case for invocation of powers under Section 528 B.N.S.S. is made out. Hence, the prayer as sought above, is hereby refused.
8. However, it is directed that in case applicant appears / surrenders before the Trial court concerned within a period of three weeks from today and applies for bail, his bail application shall be considered and decided expeditiously in accordance with settled law. For a period of three weeks from today or till the applicant appears/surrenders before the court concerned, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid complaint case.
9. The application u/s 528 BNSS is disposed of in above terms.
Order Date :- 11.4.2025
S Rawat