Allahabad High Court

HON'BLE SAURABH SRIVASTAVA, J.

1. Vakalatnama preferred on behalf of Sri R.P.S.Kashyap, learned counsel for opposite party no. 2 is taken on record.

2. Heard learned counsel for the parties.

3. Present application has been preferred with prayer to quash charge sheet dated 7.12.2024, cognizance order dated 3.6.2025 passed by learned Chief Judicial Magistrate, Budaun as well as entire proceeding of Case no. 13745/2025 (arising out of Case Crime no. 464 of 2024) under sections 191(2), 131, 324(4) 351(2) BNS, PS- Ujhani, District Budaun.

4. Learned counsel for applicants submitted that applicants and opposite party no. 2 belong to same branch and are successors of their common ancestors. There is a joint holding of the applicants, his brothers and opposite party no. 2 being Khasra no. 898 area 0.461 hectare situated at Budaun-Kachhla National Highway, Gaon Sabha Batla Khanjan, Pargana Ujhani, Tehsil and District Buduan in which applicants are 1/3 share holders, while opposite party no. 2 are also having 1/3 share. From aforesaid plot only 0.0104 hectare land was acquired for widening the Bareilly-Agra National Highway. As such, at present 0.4506 hectare land adjacent to the National Highway is remaining on spot. The opposite party no. 2 with mala fide intention, started construction work in the front side of the National Highway of the aforesaid land without any partition among shareholders including applicants. Applicants interrupted the 2 NA528 No. 31481 of 2025 construction work done by opposite party no. 2, then opposite party no. 2 lodged present FIR dated 13.10.2024 being Case Crime no. 464 of 2024 under sections 191(2), 131, 324(4) 351(2) BNS against the applicants and his brothers.

5. According to version of FIR, prosecution case is that opposite party no. 2 is 1/3 share holder in the land being Gata no. 898 in which his tubewell is situated. Opposite party no. 2 was raising further construction which was stopped due to interference of applicants. Applicants demolished the wall of construction work and threatened to kill the informant.

6. In order to avoid any mishappening and unpleasant incident, applicants filed a Suit/Partition Case on dated 17.10.2024 against opposite party no. 2 wherein Sub-Divisional Officer, Budaun vide order dated 19.10.2024 passed an interim order in favour of applicants and directed to maintain status quo by both the parties, stop construction work, not to alienate and not to change the nature of land in any manner during pendency of the said suit. Despite the said order opposite party no. 2 were not stopping the construction work. Opposite party no. 2 moved a stay vacation application in court of Sub-Divisional Magistrate, Budaun which was rejected vide order dated 2.12.2024. Applicant no. 4 also approached before this Court by way of filing Writ C no. 40005/2024 (Naubat Singh vs. State of U.P. and others) for compliance of order dated 19.10.2024 wherein order dated

1.5.2025 has been passed with observation to move contempt application under Order 39 Rule 2A CPC, 1908.

7. In pursuance to present FIR, after conclusion of investigation, charge sheet has been submitted whereupon cognizance of offence has been taken up vide order dated 3.6.2025 which has been challenged through instant application.

8. It is contended that present case is a no injury case and the controversy and subject matter of this case is purely civil in nature which cannot be decided through criminal proceeding. Essential ingredients of sections 191(2), 131, 324(4) 351(2) BNS are also missing in the instant matter. No offence as alleged by informant is made out against the applicants. Present FIR and other proceedings of this case are purely abuse of process 3 NA528 No. 31481 of 2025 of law and as such the same is liable to be quashed and set aside.

9. Sri R.P.S.Kashyap, learned counsel for opposite party no. 2 vehemently opposed the prayer sought through instant application and submitted that the partition suit filed at the behest of applicants is after the lodging of present FIR hence the same is only counter-blast case and therefore no interference is required by this Court at this stage.

10. Learned AGA seconded the arguments raised at the behest of opposite party no. 2.

11. After hearing rival submissions extended by learned counsels for the parties and perusing the records, this Court finds that although partition suit has been preferred at the behest of applicants after registration of the FIR, but it is crystal clear from the arguments so raised by learned counsel for the parties that the dispute is of civil in nature. Now once, the order dated 19.10.2024 has already been passed whereupon stay vacation application preferred at the behest of opposite party no. 2 has already been dismissed, the civil remedy is available before both the parties.

12. In catena of judgments rendered by Hon'ble Apex Court such as in the case of A.M. Mohan Vs. State Represented by SHO and another, [2024 SCC OnLine SC 339] it has been held that there is a growing tendency to convert purely civil dispute into criminal cases. The observations made by Hon'ble the Supreme Court in G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636] are also relevant which are as under:- "8. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

13. It would be appropriate to mention following paragraph of a judgment passed by Supreme Court in Naresh Kumar and another vs. The State of Karnataka and another, [2024 INSC 196], that in similar circumstances 4 NA528 No. 31481 of 2025 inherent power can be exercised: "6. In the case of Paramjeet Batra v. State of Uttarakhand (2013) 11 SCC 673, this Court recognized that although the inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. This is what was held: "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."

14. The aforementioned legal position has also been considered by a Coordinate Bench of this Court in the case of Kamlesh Singh vs. State of U.P. and others [(2024) 6 ILRA 15].

15. The present case is a fit case where inherent power under Section 528 BNSS can be exercised. No cause of action survives for continuation of the criminal proceeding instituted against the applicants wherein, charge sheet has been submitted and cognizance has been taken up and as such entire proceeding of Case no. 13745/2025 (arising out of Case Crime no. 464 of 2024) under sections 191(2), 131, 324(4) 351(2) BNS, PS- Ujhani, District Budaun is hereby set aside only in respect of applicants herein.

16. The instant application u/s 528 BNSS stands allowed accordingly. December 2, 2025 Shaswat (Saurabh Srivastava,J.)

HON'BLE SAURABH SRIVASTAVA, J.

1. Vakalatnama preferred on behalf of Sri R.P.S.Kashyap, learned counsel for opposite party no. 2 is taken on record.

2. Heard learned counsel for the parties.

3. Present application has been preferred with prayer to quash charge sheet dated 7.12.2024, cognizance order dated 3.6.2025 passed by learned Chief Judicial Magistrate, Budaun as well as entire proceeding of Case no. 13745/2025 (arising out of Case Crime no. 464 of 2024) under sections 191(2), 131, 324(4) 351(2) BNS, PS- Ujhani, District Budaun.

4. Learned counsel for applicants submitted that applicants and opposite party no. 2 belong to same branch and are successors of their common ancestors. There is a joint holding of the applicants, his brothers and opposite party no. 2 being Khasra no. 898 area 0.461 hectare situated at Budaun-Kachhla National Highway, Gaon Sabha Batla Khanjan, Pargana Ujhani, Tehsil and District Buduan in which applicants are 1/3 share holders, while opposite party no. 2 are also having 1/3 share. From aforesaid plot only 0.0104 hectare land was acquired for widening the Bareilly-Agra National Highway. As such, at present 0.4506 hectare land adjacent to the National Highway is remaining on spot. The opposite party no. 2 with mala fide intention, started construction work in the front side of the National Highway of the aforesaid land without any partition among shareholders including applicants. Applicants interrupted the 2 NA528 No. 31481 of 2025 construction work done by opposite party no. 2, then opposite party no. 2 lodged present FIR dated 13.10.2024 being Case Crime no. 464 of 2024 under sections 191(2), 131, 324(4) 351(2) BNS against the applicants and his brothers.

5. According to version of FIR, prosecution case is that opposite party no. 2 is 1/3 share holder in the land being Gata no. 898 in which his tubewell is situated. Opposite party no. 2 was raising further construction which was stopped due to interference of applicants. Applicants demolished the wall of construction work and threatened to kill the informant.

6. In order to avoid any mishappening and unpleasant incident, applicants filed a Suit/Partition Case on dated 17.10.2024 against opposite party no. 2 wherein Sub-Divisional Officer, Budaun vide order dated 19.10.2024 passed an interim order in favour of applicants and directed to maintain status quo by both the parties, stop construction work, not to alienate and not to change the nature of land in any manner during pendency of the said suit. Despite the said order opposite party no. 2 were not stopping the construction work. Opposite party no. 2 moved a stay vacation application in court of Sub-Divisional Magistrate, Budaun which was rejected vide order dated 2.12.2024. Applicant no. 4 also approached before this Court by way of filing Writ C no. 40005/2024 (Naubat Singh vs. State of U.P. and others) for compliance of order dated 19.10.2024 wherein order dated

1.5.2025 has been passed with observation to move contempt application under Order 39 Rule 2A CPC, 1908.

7. In pursuance to present FIR, after conclusion of investigation, charge sheet has been submitted whereupon cognizance of offence has been taken up vide order dated 3.6.2025 which has been challenged through instant application.

8. It is contended that present case is a no injury case and the controversy and subject matter of this case is purely civil in nature which cannot be decided through criminal proceeding. Essential ingredients of sections 191(2), 131, 324(4) 351(2) BNS are also missing in the instant matter. No offence as alleged by informant is made out against the applicants. Present FIR and other proceedings of this case are purely abuse of process 3 NA528 No. 31481 of 2025 of law and as such the same is liable to be quashed and set aside.

9. Sri R.P.S.Kashyap, learned counsel for opposite party no. 2 vehemently opposed the prayer sought through instant application and submitted that the partition suit filed at the behest of applicants is after the lodging of present FIR hence the same is only counter-blast case and therefore no interference is required by this Court at this stage.

10. Learned AGA seconded the arguments raised at the behest of opposite party no. 2.

11. After hearing rival submissions extended by learned counsels for the parties and perusing the records, this Court finds that although partition suit has been preferred at the behest of applicants after registration of the FIR, but it is crystal clear from the arguments so raised by learned counsel for the parties that the dispute is of civil in nature. Now once, the order dated 19.10.2024 has already been passed whereupon stay vacation application preferred at the behest of opposite party no. 2 has already been dismissed, the civil remedy is available before both the parties.

12. In catena of judgments rendered by Hon'ble Apex Court such as in the case of A.M. Mohan Vs. State Represented by SHO and another, [2024 SCC OnLine SC 339] it has been held that there is a growing tendency to convert purely civil dispute into criminal cases. The observations made by Hon'ble the Supreme Court in G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636] are also relevant which are as under:- "8. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

13. It would be appropriate to mention following paragraph of a judgment passed by Supreme Court in Naresh Kumar and another vs. The State of Karnataka and another, [2024 INSC 196], that in similar circumstances 4 NA528 No. 31481 of 2025 inherent power can be exercised: "6. In the case of Paramjeet Batra v. State of Uttarakhand (2013) 11 SCC 673, this Court recognized that although the inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. This is what was held: "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."

14. The aforementioned legal position has also been considered by a Coordinate Bench of this Court in the case of Kamlesh Singh vs. State of U.P. and others [(2024) 6 ILRA 15].

15. The present case is a fit case where inherent power under Section 528 BNSS can be exercised. No cause of action survives for continuation of the criminal proceeding instituted against the applicants wherein, charge sheet has been submitted and cognizance has been taken up and as such entire proceeding of Case no. 13745/2025 (arising out of Case Crime no. 464 of 2024) under sections 191(2), 131, 324(4) 351(2) BNS, PS- Ujhani, District Budaun is hereby set aside only in respect of applicants herein.

16. The instant application u/s 528 BNSS stands allowed accordingly. December 2, 2025 Shaswat (Saurabh Srivastava,J.)