RAMROOP UPADHYAYversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 32014 of 2025

Ramroop Upadhyay
                                                             .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Pradeep Kumar Singh
Counsel for Opposite Party(s) : G.A., Madhukar Bharti, Pawan Kumar,
                                Prince Kumar Srivastava

Court No. - 84
                     HON'BLE SANJIV KUMAR, J.

1. Heard Shri Pradeep Kumar Singh, learned counsel for the applicant, Shri
Murtaza Ali, learned State Law Officer, on behalf of the State and learned
counsel for opposite party no.2 and perused the material on record.

2. This Application under Section 528 BNSS has been filed on behalf of
applicant to quash the entire proceeding of Case No. 35712 of 2025 (State
Vs. Ramroop Upadhyay), arising out of Case Crime No.630 of 2024, under
Sections- 352, 351(3), 329(3) B.N.S., Police Station- Gorakhnath, District-
Gorakhpur and charge-sheet dated 25.12.2024 as well as cognizance/
summoning order dated 16.05.2025, pending in the court of Additional Chief
Judicial Magistrate-I, Gorakhpur.

3. Brief facts giving rise to the present application are that opposite party
no.2- Priyanka Tiwari lodged an FIR against the applicant on 13.11.2024 at
about 11:00 that her father (the applicant) broke open the lock of the house,
by replacing it with his own to seal the house. When she asked him to open
the door, he responded by unleashing vile verbal abuse and menacing
threats.

4. Upon this information an FIR was lodged and after investigation charge-
sheet under Sections- 352, 351(3) and 329 (3) B.N.S. has been filed before
the competent court which has taken cognizance of the offence and
summoned the applicant.

5. Feeling aggrieved, this application has been filed on the ground that the
first informant/ opposite party no.2 is the daughter of the applicant and her
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marriage was solemnized with Arman Tiwari, but she has forcefully
occupied the house of the applicant and her brother. The above said house
has been mutated in the name of Kishan Kant Upadhyay, brother of first
informant. It is stated that the alleged incident is false and concocted and
there is no independent witness of the incident and also there is no specific
role assigned to the applicant. It is also stated that the FIR has been lodged
by the first informant/ opposite party no.2 to usurp the house of the
applicant.

6. Per contra, learned counsel for opposite party no. 2 has stated that the
applicant has committed the offence and charge-sheet has been filed in the
competent court. It is also stated that even if civil remedy is available to a
person, then it does not bar the criminal prosecution if on the given facts
criminal offence is made out.

7. In support of this argument, learned counsel for opposite party no.2 has
relied upon a judgment of Hon'ble Supreme court in (Kathyayini Vs.
Siddharth P.S. Reddy and Others) 2025 SCC Online SC 1428 arising
out of SLP (Criminal) No.1105 of 2024, decided on 14.07.2025, wherein
the Supreme Court has held that no bar exists against prosecution of a person
if the act is punishable under the criminal law against the parties to the civil
suit. The relevant extract of the judgment is quoted hereinbelow:-

"19. We now come to the issue of bar against prosecution during the pendency of a
civil suit. We hereby hold that no such bar exists against prosecution if the offences
punishable under criminal law are made out against the parties to the civil suit.
Learned senior counsel Dr. Menaka Guruswamy has rightly placed the relevant
judicial precedents to support the above submission. In the case of K. Jagadish v.
Udaya Kumar G.S. and another (2020) 14 SCC 552, this Court has reviewed its
precedents which clarify the position. The relevant paragraph from the above
judgment is extracted below:

"8. It is thus well settled that in certain cases the very same set of facts may give rise
to remedies in civil as well as in criminal proceedings and even if a civil remedy is
availed by a party, he is not precluded from setting in motion the proceedings in
criminal law."

20. In Pratibha Rani v. Suraj Kumar and Another (1985) 2 SCC 370, this Court
summed up the distinction between the two remedies as under:

"21. … There are a large number of cases where criminal law and civil law can run
side by side. The two remedies are not mutually exclusive but clearly coextensive and
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essentially differ in their content and consequence. The object of the criminal law is to
punish an offender who commits an offence against a person, property or the State for
which the accused, on proof of the offence, is deprived of his liberty and in some cases
even his life. This does not, however, affect the civil remedies at all for suing the
wrongdoer in cases like arson, accidents, etc. It is an anathema to suppose that when
a civil remedy is available, a criminal prosecution is completely barred. The two types
of actions are quite different in content, scope and import. It is not at all intelligible to
us to take the stand that if the husband dishonestly misappropriates the stridhan
property of his wife, though kept in his custody, that would bar prosecution under
Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive.
To say that because the stridhan of a married woman is kept in the custody of her
husband, no action against him can be taken as no offence is committed is to override
and distort the real intent of the law."

21. The aforesaid view was reiterated in Kamaladevi Agarwal v. State of W.B. and
Others (2002) 1 SCC 555,"

17. In view of the preponderance of authorities to the contrary, we are satisfied that
the High Court was not justified in quashing the proceedings initiated by the appellant
against the respondents. We are also not impressed by the argument that as the civil
suit was pending in the High Court, the Magistrate was not justified to proceed with
the criminal case either in law or on the basis of propriety. Criminal cases have to be
proceeded with in accordance with the procedure as prescribed under the Code of
Criminal Procedure and the pendency of a civil action in a different court even though
higher in status and authority, cannot be made a basis for quashing of the
proceedings."

8. Learned A.G.A has also defended the proceedings pending against the
applicant.

9. Recently, in Pradeep Kumar Kesarwani vs. State of U.P., 2025 SCC
Online 947 the Hon'ble Supreme Court, while deciding the appeal arising
from an order passed by Allahabad High Court by which the High Court had
dismissed the appellant's petition seeking quashing of summoning order, laid
down certain steps which must be followed to determine the veracity of a
prayer for quashing, raised by an accused by invoking the power vested in
the High Court under Section 482 of the CrPC (Now Section 528 BNSS):

(1) Whether the material relied upon by the accused is sound, reasonable, and
indubitable, i.e., the materials is of sterling and impeccable quality?

(2) Whether the material relied upon by the accused, would rule out the assertions
contained in the charges levelled against the accused, i.e., the material is sufficient to
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reject and overrule the factual assertions contained in the complaint, i.e., the material
is such, as would persuade a reasonable person to dismiss and condemn the factual
basis of the accusations as false.

(3) Whether the material relied upon by the accused, has not been refuted by the
prosecution/complainant; and/or the material is such, that it cannot be justifiably
refuted by the prosecution/complainant?

(4) Whether proceeding with the trial would result in an abuse of process of the court,
and would not serve the ends of justice?

10. In the backdrop of the above legal position, while exercising power
under Section 528 BNSS, this Court can also see the unrefuted material of
the applicant to judge whether criminal proceeding instituted by opposite
party no.2 is manifestly attended with mala fide and/or 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.

11. It is also well settled that summoning of any person as an accused on the
basis of a frivolous or fictitious complaint is something very serious, as this
would tarnish the image of the person against whom false, frivolous, or
fictitious allegations are levelled. It is the duty of the Court, in such cases
where the accused seeks quashing of an FIR or proceedings on the ground
that such proceedings are manifestly frivolous or fictitious or instituted with
an ulterior motive for wreaking vengeance to delineate such abuse of the
process of law, and exercise its power under Section 482 Cr.P.C. ( Section
528 BNSS).

12. In view of the submissions of learned counsel for both the parties as well
as the above legal position and the material on record, it is clear that the
opposite party no.2/ first informant is a married daughter of applicant
Ramroop Upadhyay. A perusal of FIR, prima facie, shows that the main
grievance of the applicant appears to be that of her right to reside in the
above said house. During the course of argument, it has not been disputed on
behalf of learned counsel for opposite party no.2 that she is married and the
disputed house is not owned by her. Therefore, the dispute between the
parties is essentially civil in nature, and it appears that the opposite party
no.2 has given criminal colour to it, to exert pressure upon the applicant to
settle her personal vendetta. Vindication of majesty of justice and
maintenance of law and order in the society are the prime objects of criminal
justice but it would not be the means to wreak personal vengeance. In view
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                                    of the above, the continuation of the criminal proceedings would amount to
                                    an abuse of process of law.

                                    13. In view of the above, the present application, under Section 528 BNSS,
                                    is allowed and the entire proceedings of Case No. 35712 of 2025 (State Vs.
                                    Ramroop Upadhyay), arising out of Case Crime No.630 of 2024, under
                                    Sections- 352, 351(3), 329(3) B.N.S., Police Station- Gorakhnath, District-
                                    Gorakhpur and charge-sheet dated 25.12.2024 as well as cognizance/
                                    summoning order dated 16.05.2025, are hereby, quashed.

                                    February 20, 2026
                                    AdityaG
                                                                                            (Sanjiv Kumar,J.)




Digitally signed by :-
ADITYA GAUTAM
High Court of Judicature at Allahabad