Allahabad High Court
Rakesh And 3 Others vs State Of U.P. And Another on 25 August, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:147058 Reserved HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 17790 of 2025 Court No. - 71 HON'BLE RAJ BEER SINGH, J.
1. This application under Section – 528 BNSS has been preferred against order dated 02.04.2025, passed by learned Chief Judicial Magistrate, Banda in Misc. Case No. 133 of 2019 (Ghanshyam Gupta Vs. Sahodra Devi and Others), under Sections – 420, 447, 467, 468, 471, 34, 120-B I.P.C., Police Station – Atarra, District – Banda, whereby the final report submitted by the police was rejected and protest petition of the informant was allowed and applicants were summoned.
2. Heard learned counsel for the applicants, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record.
3. Learned counsel for the applicants submitted that impugned order is against facts and law and thus, liable to be quashed. The dispute between the parties is purely civil in nature and that dispute is pending before the Civil court. The first information report of this case was got lodged by the opposite party no.2 by moving an application under Section – 156(3) Cr.P.C.. After investigation police found that dispute between the parties was of civil in nature and submitted final report in favour of applicants. It was stated that the opposite party no.2 has filed a protest petition and while deciding the same, learned Chief Judicial Magistrate has considered extraneous material, which is not permissible under law. Learned counsel has referred impugned order and pointed out that affidavit and several other documents filed by the informant along with protest petition were taken into consideration by the learned Chief Judicial Magistrate while passing the impugned order, whereas it is settled position of law that at the time of consideration of final report Magistrate cannot consider any such document and the accused can be summoned only on the basis of material collected during investigation, which is available in Case Diary. Referring to facts of the matter, it was submitted that dispute between the parties is purely civil in nature and no prima facie case is made out. In support of his contention, learned counsel for the applicants has placed reliance upon following case laws :-
(i) Pakhandu and Others Vs. State of U.P. and Another 2002 CRI. L.J. 1210
(ii) Randheer Singh Vs. The State of U.P. & Ors. LL 2021 SC 574
(iii) Lalit Chaturvedi & Others Vs. State of Uttar Pradesh & Another 2024 LawSuit (SC) 460
(iv) Usha Chakraborty & Anr. Vs. State of West Bengal & Anr. 2023 LiveLaw (SC) 67
(v) Rikhab Birani & Anr. Vs. State of Uttar Pradesh & Anr. 2025 LiveLaw (SC) 438
4. Learned counsel for the opposite party no.2 has opposed the application and submitted that in the instant matter in view of allegations made against applicants, a prima facie case is made out. It was submitted that in appropriate cases both civil as well as criminal proceedings may go on simultaneously. In this connection, leaned counsel has placed reliance upon case of Kathyayini Vs. Sidhart P.S. Reddy & Ors. 2025 INSC 818. In alleged civil proceedings, no interim order was passed in favour of applicants. Applicants have also filed an appeal but no interim relief was granted to them. Learned counsel has referred contents of first information report and statements of witnesses and submitted that there are allegations of cheating and conspiracy and a prima facie case is made out against applicants. Learned Chief Judicial Magistrate has considered entire facts in correct perspective and there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. In case of Usha Chakraborty (supra), the Hon’ble Apex Court has held that dispute between the parties was civil in nature and on that ground the proceedings were quashed. In paragraph no.11, the Hon’ble Apex Court has held as under :-
“11. In the aforesaid circumstances, coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants. The indisputable facts that the respondent has filed the pending title suit in the year 2015, he got no case that he obtained an interim relief against his removal from the office of Secretary of the School Managing Committee as also the trusteeship, that he filed the stated application for an order for investigation only in April, 2017 together with absence of a case that despite such removal he got a right to get informed of the affairs of the school and also the trust, would only support the said conclusion. For all these reasons, we are of the considered view that this case invites invocation of the power under Section 482 Cr.P.C. to quash the FIR registered based on the direction of the Magistrate Court in the afore-stated application and all further proceeding in pursuance thereof. Also, we have no hesitation to hold that permitting continuance of the criminal proceedings against the appellants in the aforesaid circumstances would result in abuse of the process of Court and also in miscarriage of justice. ”
7. In case of Lalit Chaturvedi (supra), the issue was regarding failure of appellants to pay outstanding amount, in spite of demand of the informant. In paragraph no.8, 9, 10 and 11, the Hon’ble Apex Court has held as under :-
“8. Having gone through the complaint, which was registered as an FIR and the assertions made therein, it is quite clear that respondent no. 2/complainant ? Sanjay Garg’s grievance is regarding failure of the appellants to pay the outstanding amount, in spite of the respondent no. 2/complainant ? Sanjay Garg’s repeated demands. The respondent no. 2/complainant ? Sanjay Garg states that the supplies were made between the period 01.12.2015 and 06.08.2017. The appellants had made the payments from time to time of Rs. 3,76,40,553/- leaving a balance of Rs. 1,92,91,358/-. We will assume that the assertions made in the complaint are correct, but even then, a criminal offence under Section 420 read with Section 415 of the IPC is not established in the absence of deception by making false and misleading representation, dishonest concealment or any other act or omission, or inducement of the complainant to deliver any property at the time of the contract(s) being entered. The ingredients to allege the offence are neither stated nor can be inferred from the averments. A prayer is made to the police for recovery of money from the appellants. The police is to investigate the allegations which discloses a criminal act. Police does not have the power and authority to recover money or act as a civil court for recovery of money.
9. The chargesheet also refers to Section 406 of the IPC, but without pointing out how the ingredients of said section are satisfied. No details and particulars are mentioned. There are decisions which hold that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously.10 For the offence of cheating, dishonest intention must exist at the inception of the transaction, whereas, in case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with the property as per law, albeit dishonest intention comes later. In this case entrustment is missing, in fact it is not even alleged. It is a case of sale of goods. The chargesheet does refer to Section 506 of the IPC relying upon the averments in the complaint. However, no details and particulars are given, when and on which date and place the threats were given. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money.
10. It is for the respondent no.2/complainant ? Sanjay Garg to file a civil suit. Initiation of the criminal process for oblique purposes, is bad in law and amounts to abuse of process of law.
11. In view of the aforesaid discussion, the impugned judgment is set aside and the present appeal is allowed quashing the FIR and resultant proceedings, including the chargesheet.”
8. In case of Randheer Singh (supra), the first information report did not disclose any offence. In paragraph no.33, the Hon’ble Apex Court has held as under :-
“33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under section 482 of the Cr.P.C., 1973 should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above.”
9. In aforesaid cases mainly it has been held that if dispute between the parties is essentially civil in nature, the proceedings may be quashed. In the instant matter, perusal of record shows that after investigation police have submitted final report (closure report). The informant has filed a protest petition. It appears by impugned summoning order that learned Magistrate has considered some affidavits and documents submitted by the informant along with protest petition and passed the impugned order, whereby cognizance was taken and applicants were summoned. The point for consideration is whether in such circumstances the Court can take into account the materials submitted by the informant along with protest petition.
10. Chapter XIV of Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Provisions of section 190 Cr.P.C. relevant for this case, are reproduced as under:
“190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.”
11. It is well-settled that if magistrate finds that Police have not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused. In case of Tula Ram Vs. Kishore SinghAIR 1977 SC 2401, the Apex court observed that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b)on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. If he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police, in such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter.
12. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka1989 (26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused.Section 190(1)(b)Cr.P.C. does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. The observations made in M/sIndia Carat Pvt. Ltd.(supra), make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not made investigation properly and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process.
13. In case of Minu Kumari and another Vs. State of Bihar and others2006 (4) SCC 359, Court held as under:
“11. When a report forwarded by the police to the Magistrate underSection 173(2)(i)is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation underSection 156(3)and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police underSection 156(3). The position is, therefore, now well-settled that upon receipt of a police report underSection 173(2)a Magistrate is entitled to take cognizance of an offence underSection 190(1)(b)of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused.Section 190(1)(b)does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers underSection 190(1)(b)and direct the issue of process to the accused.”
14. This Court has also taken a similar view and in this connection reference may be made to case ofPakhando and others Vs. State of U.P.2001 (43) ACC 1096, wherein a Division Bench of this Court after consideringSection 190Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:
“(I) He may agree with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;
(II) He may take cognizance underSection 190(1)(b)and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or
(III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or
(IV) He may, without issuing process or dropping the proceedings decide to take cognizance underSection 190(1)(b)upon the original complaint or protest petition treating the same as complaint and proceed to act underSections 200and202Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.”
15. Thus, the position of law is well settled that upon receipt of a police report underSection 173(2), a Magistrate / court is entitled to take cognizance of an offence underSection 190(1)(b)Cr.P.C. even if the police report is to the effect that no case is made out against the accused but for that purpose, the Magistrate has to take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers underSection 190(1)(b)and direct the issue of process to the accused. In such circumstances the satisfaction of Magistrate / Court must be based on material collected during investigation. In Mohd. Yusuf and Others vs. State of U.P. & Anr 2007 0 Supreme (All) 2080, it was observed that when the magistrate decides to take cognizance undersection 190(1) (b)Cr.P.C. ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer.
16. In the instant matter, it is apparent from record that police have submitted final report (closure report) with conclusion that no case is made out. The informant has preferred a protest petition. It appears that along with protest petition, the informant has also filed some documents and affidavits. It is apparent from impugned order that considering the said affidavits and documents, the learned Magistrate has allowed the protest petition and cognizance was taken under Section – 190(1)(b) Cr.P.C. as a State case and applicants were summoned. As referred above while considering protest petition, the Magistrate cannot take into account the material / affidavits submitted by informant along with the protest petition. The Magistrate can summon the accused only on the basis of material available in Case Diary, which has been collected during investigation. In other circumstance he can treat the protest petition as a complaint case and take cognizance under Section – 190(1)(a) Cr.P.C.. Thus, it is clear that impugned order dated 02.04.2025 is not in accordance with law and thus, liable to be quashed.
17. In view of aforesaid, the impugned order dated 02.04.2025 is set aside. The matter is remanded back to the learned Magistrate concerned to pass an order afresh in accordance with law.
18. The application u/s 528 BNSS is disposed of with aforesaid observations.
August 25, 2025
S Rawat