Azize Alam vs State Of U.P Thru. Addil. Chief ...
2023 Latest Caselaw 12498 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- APPLICATION U/S 482 No. - 3984 of 2023
 

 
Applicant :- Azize Alam
 
Opposite Party :- State Of U.P Thru. Addil. Chief Secy. Prin. Secy. Deptt. Home Civil Secrt. Lko. And Another
 
Counsel for Applicant :- Abhineet Jaiswal,Saurabh Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

Heard learned counsel for the applicant, Sri Anirudh Kumar Singh, learned A.G.A.-I for the State and perused the material placed on record.

Instant application under section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of Case No. 53581 of 2020 (State of U.P. Vs. Saiyyad Mohammad Shahe Alam and Others) under sections 504,506,323,352 I.P.C. pending in the court of learned Chief Judicial Magistrate, Lucknow and the impugned cognizance order and summoning order dated 17-12-2020 passed by the learned Chief Judicial Magistrate, Lucknow taking cognizance and issuing summons and the chargesheet dated 18-11-2020 filed under sections 504,323,352,384 I.P.C. against the applicant.

The arguments of the learned counsel for the applicant are in three folds;

1. That the learned Magistrate while issuing the summons has filled in blanks and thus, it is against the law settled by this court;

2. Second set of the argument is that there are as much as ten civil suits pending in between the applicant as well as the complainant and his wife and in retaliation to the same, the instant first information report has been lodged though the dispute is civil in nature ;

3. And the third set of argument of learned counsel for the applicant is that the Investigating Officer was biased while concluding the investigation proceedings.

He has drawn attention of this court towards the impugned order dated 17-12-2020, which is under challenge in the instant application and submits that the learned Magistrate while issuing the summons has filled in the blanks in the summoning order and thus, there is no application of judicial mind, in issuing the summons. In support of his contentions, he has placed reliance on the Judgment and order dated 07-02-2023 passed by a coordinate Bench of this court in an application under section 482 Cr.P.C. bearing no. 1177 of 2023, Ved Krishna Vs. State of U.P.. and has referred the ratio of aforesaid Judgment and extract of the same is quoted hereinunder :-

"In view of the above, this Court finds and observes that the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated. The summoning of an accused in a criminal case is a serious matter and the order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto, whereas the impugned summoning order was passed in mechanical manner without application of judicial mind and without satisfying himself as to which offence were prima-facie being made out against the applicants on the basis of the allegations made by the complainant. the impugned cognizance order passed by the learned Magistrate is against the settled judicial norms."

Referring the aforesaid, he submits that the impugned order dated 17-12-2020 is against the law propounded by the coordinate Bench of this court.

He further submits that the matter is purely a civil dispute as there are ten civil suits pending in between the parties for the land in question and that is pending consideration before the trial court. He next added that the complainant is trying to give colour of criminality to the civil dispute so that the applicant may not pursue the case before the court concerned.

In support of his contentions, he has also placed reliance on the Judgment of the Apex Court in the case of Syed Yaseer Ibrahim Vs. State of U.P. and another, Criminal Appeal No. 295 of 2022(Arising out of SLP(Crl.) No. 7955 of 2021) and has referred paragraph nos. 8 & 9 of the aforesaid Judgment, which are extracted hereinunder :-

"8. Both the FIR and the charge-sheet, which has been submitted after investigation, would leave no manner of doubt that there are rival contentions of the appellant, on the one hand, and the second respondent, who is the complainant, on the other, which form the subject of a pending suit. The contesting parties lay a claim to the immovable property, which is in dispute. The appellant founded his claim on the strength of an alleged deed of gift. On the other hand, the second respondent has claimed on the basis of a Will alleged to have been executed in his favour. The second respondent has instituted a suit for declaration and possession which is pending. The suit was dismissed in default on 13 October 2014. The sale deed was executed by the appellant on 24 November 2014. The suit has been restored to file on 21 April 2016. Each of the rival claims would be tested in the course of the evidence adduced at the trial of the suit. Mr Sanjay Singh submitted that since the sale took place during the pendency of the suit, doctrine of lis pendens will apply. This itself is an indicator of the position that it is essentially a dispute of a civil nature. The execution of a sale deed, during the pendency of the suit, may attract the doctrine of lis pendens , but, from reading the charge-sheet as it stands, it is evident that there is no element of criminality which can stand attracted in a matter which essentially involves a civil dispute between the appellant and the second respondent.

9. Insofar as the appellant is concerned, none of the ingredients of the offence punishable under Section 420 of the IPC have been found to exist after the investigation was complete. Neither the FIR nor the charge-sheet contain any reference to the essential requirements underlying Section 420. In this backdrop, the continuation of the prosecution against the appellant would amount to an abuse of the process where a civil dispute is sought to be given

the colour of a criminal wrong doing.

Further contended that the application under section 156(3) of Cr.P.C., whereas six opposite parties are there, but, the Investing Officer in a very callous and supine manner, has submitted the chargesheet against the petitioner and two other co-accused persons. He next submitted that in view of the aforesaid, the criminal proceedings against the applicant may be quashed as there is no fate of the trial as those are against the law and the law enunciated by this court and the Ape Court.

On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that there are specific allegations in the application under section 156(3) of Cr.P.C. against the applicant and therefore, the Magistrate after applying it's judicial mind has directed for lodging of the first information report and after thorough investigation, it was found that the applicant was involved in committing the offence and therefore, the chargesheet was filed and the Magistrate has taken cognizance and has issued summons against the applicant and thus, no interference is warranted and the instant application is liable to be dismissed.

Prima-facie, there seems to be force in the arguments of the learned counsel for the applicant and thus, the matter requires consideration.

Let notice be issued to opposite party no. 2 returnable at an early date.

Steps be taken within a week.

List/put up this matter in the week commencing 29-05-2023.

In the meantime, learned A.G.A. as well as learned counsel for the opposite party no. 2 may file their Counter Affidavits.

Till the next date of listing, the proceedings initiated in pursuance of Case No. 53581 of 2020 (State of U.P. Vs. Saiyyad Mohammad Shahe Alam and Others) under sections 504,506,323,352 I.P.C., shall remain stayed so far as the present applicant is concerned.

Order Date :- 24.4.2023/AKS