Court No.
- 52
Case :- APPLICATION U/S 482 No. - 17807 of 2020
Applicant :- Sharad Tripathi
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Purushottam Mani Tripathi
Counsel for Opposite Party :- G.A.,Mirza Ali Zulfaqar
AND
Case :- APPLICATION U/S 482 No. - 16896 of 2020
Applicant :- Rakesh Singh Baghel
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajiv Lochan Shukla,Abhishek Narayan Pandey
Counsel for Opposite Party :- G.A.,Mirza Ali Zulfaqar
Hon'ble Om Prakash-VII,J.
Heard Sri Rajiv Lochan Shukla and Sri Purushottam Mani
Tripathi, learned counsel for the applicant as well as Sri Mirza
Ali Zulfaqar, learned counsel for the opposite party no.2 and the
learned AGA for the State in this application as well as in
connected application.
Both the applications under Section 482 Cr.P.C. have been filed
with the prayer to quash the summoning order dated 22.10.2020
passed by Additional District and Sessions Judge (M.P. /
M.L.A.), Sant Kabir Nagar in the Final Report No.1 dated
17.7.2019 / 13.10.2020 as well as the entire proceedings of
criminal case no.92 of 2020 (State Versus Sharad Tripathi and
another) arising out of case crime no.175 of 2019 under
sections 143, 427 IPC, section 3 of the Prevention of Damages
to Public Property Act, 1984 and section 7 Criminal Law
Amendment Act, 2013, Police Station Khalilabad, District Sant
Kabir Nagar pending in the court of Additional District and
Sessions Judge (M.P. / M.L.A.), Sant Kabir Nagar.
Since both the aforesaid applications arise out of same crime
number, these are being heard together and are being decided
by a common order.
Prosecution case in nutshell, as unfolded in the F.I.R., is as
follows :
On 6.3.2019 at 4:00 P.M., a meeting was being held of the
District Planning Committee under the Chairmanship of the In-
charge Minister. In this meeting the In-charge Minister, Zila
Panchayat Head, Member of Parliament, all the three Members
of Legislative Assembly, representatives of Member of
Legislative Council, their supporters, District Magistrate, Chief
Development Officer, Addl. Superintendent of Police and
officials of the District Level Departments were present. During
discussion in the meeting, the Member of Parliament and the
Member of Legislative Assembly, Mehdawal had a hot-talks
and scuffle which disturbed the atmosphere and everyone came
out from the meeting room and started creating ruckus in the
Collectorate premises. In the meanwhile, from the frenzied
mob, some unknown persons entered into the Collectorate
premises through main gate and broken the flowerpots and
glass of the door. This incident of vandalism took place at about
8:15 hours in the evening in which there was loss of public
property.
It is submitted by the learned counsel of the applicants that no
prima facie case is made out against the applicant. It is a case of
no evidence. Although applicants are named in the F.I.R., yet
none of the witnesses interrogated by the investigating officer
attributed any role of active participation of the applicants in
committing the present offence. At this stage, learned counsel
has referred to the statement of the witnesses namely, Sayad
Nafisul Hasan, the then Administrative Officer, District
Magistrate Office, Sant Kabir Nagar, Balendra Singh, Class-IV
employee in the Office of District Magistrate, Badri Prasad
Srivastava, Central Nazir as well as other witnesses annexed
with the application. It is further submitted that after
investigation, investigating officer concerned submitted the
final report, but the Magistrate concerned, without applying
judicial mind, directed for further investigation rejecting the
final report. Thereafter, again final report was submitted. No
protest petition was filed by the complainant. The Magistrate
concerned, relying upon the extraneous facts and
circumstances, rejected the closure report / final report and took
cognizance against the applicants straightway for the offence
under sections 143, 427 IPC, section 3 of Prevention of Damage
to Public Property Act and 7 Criminal Law Amendment Act. As
this juncture, learned counsel has also referred to the
observations recorded by the Magistrate concerned in the
impugned order and further argued that summoning order was
passed in the matter on the basis of conjecture and surmises.
There was entirely no evidence against the applicants. No prima
facie case is made out to proceed with the trial. The Magistrate
has exceeded its jurisdiction by summoning the applicants.
Thus, prayer has been made to allow the application setting
aside the summoning order as well as entire proceedings of the
aforesaid criminal case.
Learned A.G.A. as well as learned counsel for the informant
have opposed the prayer and argued that a prima facie case is
made out against the applicants. There is no illegality, infirmity
or perversity in the impugned order.
I have considered the rival contentions raised by learned
counsel for the parties and have gone through the entire record.
In this matter, as is evident from the the record, F.I.R. was
lodged on 7.3.2019 against the applicants and some unknown
persons. Allegation in the F.I.R. was levelled that a meeting was
being convened under the Chairmanship of In-charge Minister.
All the Executive Officers as well as District Board Chairman,
applicants and other members of the Legislative Council and
Assembly as also the representatives the the M.P.s and M.L.A.s
were present in the meeting. During meeting, some hot talks
took place between the applicants and they came out from the
meeting room. At the same time, frenzied supporters of the
applicants, who were present in the campus, damaged the
public property i.e. flower pots, glass, door etc.
If the submissions raised across the Bar are compared with the
fact mentioned in the F.I.R. as well as in the statement of the
witnesses interrogated during investigation, no specific role of
causing damage to the public property has been assigned to the
applicants nor there is any description in the F.I.R. and in the
statement recorded under section 161 Cr.P.C. of the witnesses to
the extent that applicants instigated their supporters to cause
damage to the public property. The investigating officer, on the
basis of statement made by the witnesses under section 161
Cr.P.C., submitted the final report in this matter. It is also
evident from the record that CCTV installed at the place of
incident was not in working condition on the day of incident.
Thus, there remains only the oral statement of the witnesses
interrogated under section 161 Cr.P.C. It also appears that at
initial stage of submission of the final report, the Magistrate
concerned again directed for further investigation. It is also
evident that again investigating officer submitted the closure
report / final report supporting its first report. The Magistrate
concerned vide impugned order rejecting the final report took
cognizance against the applicants for the aforesaid offences
straightway. It is pertinent to mention here that no protest
petition was filed on part of the informant in this matter. Now
the question is whether there was sufficient evidence in the case
diary itself to take cognizance straightway against the
applicants rejecting the final report.
Learned trial court, while passing the impugned order, has
observed that
"अपपिततु प्रथम दृष्टयया आररोपपित सयासांसद वव् पवधयायक कके मध्य कलकेक्टट ट
सभयागयार मम हह ए हयाथयापियाई हरोनके ककी ससूचनया आररोपपित सयासांसद वव् पवधयायक कके
समथर करो मम प्रसयाररत हरोनके एवसां आररोपपित सयासांसद वव् पवधयायक दयारया अपिनके
समथर करो करो उकसयानके पिर हही समथर करो दयारया आकरोश मम आकर बलपिसूवरक
घटनयास्थल पिर वव् घटनयास्थल कके रयास्तके मम रयाजककीय ससांपितत्ति करो क्षपत कयाररत
करनया प्रकट हरोतया हह. उक्त तथ्य ककी पितुपष्ट आररोपपित सयासांसद व पवधयायक दयारया
अपिनके समथर करो करो कलकेक्टट ट पिररसर मम घतुसनके सके ररोकनके हकेततु पकसही प्रकयार
सके करोई प्रययास नहहीं पकयके जयानके सके भही हरोतही हह".
It was also observed that present incident appears to have been
committed by the supporters with the aid of the applicants and
they have provided opportunity to do so. Thus, it was also
observed that a prima facie case regarding the involvement of
the applicants in this matter is apparent.
If the observation recorded by the trial court, as quoted here-in-
above, is compared with the contents of the F.I.R. as well as the
statement of the witnesses interrogated under section 161
Cr.P.C., it is evident that aforesaid observations of the trial court
are based on conjecture and surmises and are not based on
evidence available in the case diary. It may be mentioned that
the court, dealing with the matter, at this stage, has to see a
prima facie case. From the perusal of entire record, in the
present matter, it cannot be said that there is sufficient prima
facie material to proceed with the trial against the applicants. In
another way, it can be said that there is no evidence against the
applicants. Suspicion taken into consideration by the learned
trial court is also not supported with any material evidence.
Hon'ble Supreme Court in the case of State of Haryana and
others vs. Bhajan Lal and others, 1992 SCC (Cri) 426 had
observed as follows :
"The following categories can be stated by way of illustration
wherein the extra-ordinary power under Article 226 or the
inherent powers under Section 482 of the Code of Criminal
Procedure can be exercised by the High Court either to prevent
abuse of the process of any Court or otherwise to secure the
ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power should be
exercised:
(1) where the allegations made in the First Information Report
or the complaint, even if they are 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.
(2) where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose
a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section 155(2) of the
Code.
(3) where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under Section
155(2) of the Code.
(5) where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) where a criminal proceeding is manifestly attended with
mala fide and/or where 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."
If the guidelines laid down by the Hon'ble Supreme Court in
Bhajan Lal (supra) case are compared with the submissions
raised across the Bar, the observations recorded by the trial
court in the impugned order and also the contents of the F.I.R.
as well as statement of the witnesses recorded under section 161
Cr.P.C., it can safely be held that there is no prima facie case
against the applicants to proceed with trial. Trial court while
taking cognizance and rejecting the final report, has committed
illegality, as the observations recorded by the trial court are
purely based on conjectures and surmises. Thus, applications
having substance are liable to be allowed, impugned order dated
22.10.2020 is liable to be set-aside and final report submitted in
the matter by the investigating officer is liable to be accepted.
Accordingly this application as well as connected application
are allowed. The impugned order dated 22.10.2020 as well as
entire proceedings of aforesaid criminal case are quashed. Final
report submitted by the investigating officer in this matter is
hereby accepted.
The party shall file self attested computer generated copy of this
order downloaded from the official website of High Court,
Allahabad. The concerned Court / Authority / Official shall
verify the authenticity of such computerized copy of the order
from the official website of High Court Allahabad and shall
make a declaration of such verification in writing.
Order Date :- 12.1.2021
ss
