Atul Kumar Chaubey v. Tarun Kumar Chaubey and Others), under Sections
Case Details
Neutral Citation No. - 2025:AHC:77959 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 4863 of 2025 Applicant :- Tarun Kumar Chaubey And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amarnath Tripathi Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material brought on record. 2. This application u/s 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been preferred for quashing of the entire proceedings, including summoning order dated 20.01.2024, of Complaint Case No. 23025 of 2023 (Atul Kumar Chaubey Vs. Tarun Kumar Chaubey and Others), under Sections - 323, 506, 379 I.P.C., Police Station - Cholapur, District - Varanasi, pending before the court of Additional Chief Judicial Magistrate, Court No.1, Varanasi. The order dated 19.10.2024, passed by the Additional Sessions Judge, Court No.14, Varanasi in Criminal Revision No. 89 of 2024 (Usha Chaubey Vs. State of U.P. and Another), is also being impugned.
Legal Reasoning
was submitted that no prima facie case under Section - 379 I.P.C. is made out. The dispute between the parties relates to property, which is civil in nature and thus, no prima facie case is made out against applicants. The applicants have preferred a criminal revision against the summoning order dated 20.01.2024 but the revision has also been dismissed by the learned Revisional court without considering facts and law in correct perspective. It was submitted that both the impugned orders are liable to be quashed. 4. Learned A.G.A. has opposed the application and submitted that there is no material illegality or perversity in the impugned orders and that revision against summoning order dated 20.01.2024 has already been dismissed by the Session Court. 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 20.01.2024 has already been dismissed by the Sessions 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. On this 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 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. 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 and applicant no.1 are real brothers. The complainant has made allegation that on 10.10.2022 the applicants have broken his lock and took away jewellery, cash and documents. When the complainant returned back to his house he was assaulted by the applicants and he was not allowed to enter his house. The complainant has supported that version in his statement under Section - 200 Cr.P.C. That version is further supported by the witnesses examined under Section - 202 Cr.P.C. Learned Magistrate has considered facts of the matter and summoned the applicants for offence under Section - 323, 506, 379 I.P.C. vide impugned summoning order dated 20.01.2024. As stated above, the revision against summoning order dated 20.01.2024 has already been dismissed and in such situation the interference under Section - 528 BNSS 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 contingency is made out. The submissions raised by learned counsel for the applicants call for determination of questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section - 528 BNSS. 13. After considering arguments raised by learned counsel for parties and perusing the impugned orders and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section - 528 BNSS. Accordingly, the prayer as made above is hereby refused. 14. However, it is directed that in case applicants move an application for discharge before the Trial court concerned within a period of three weeks from today, the same shall be considered and decided expeditiously in accordance with law by the court concerned. It is further directed that for a period of three weeks from today and in case such an application for discharge is filed within the aforesaid period, till the disposal of discharge application, no coercive action shall be taken against the applicants, provided the applicants cooperate in early disposal of discharge application. 15. The application under Section - 528 BNSS is disposed of in above terms. Order Date :- 13.5.2025 S Rawat Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad
Arguments
3. It is submitted by learned counsel for applicants that applicant no.1 and opposite party no.2 / complainant are real brothers and there is property related dispute between the parties. The allegations made by the opposite party no.2 are wholly false. The complainant has not sustained any injury. It was pointed out that the learned Trial Court has mentioned that no one has seen the applicants breaking the lock of the room of opposite party no.2 / complainant but despite that the applicants have been summoned under Section - 379 I.P.C.. Referring to facts of the matter, it