Allahabad High Court
Mohd. Adil vs State Of U.P. And Another on 5 April, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- APPLICATION U/S 482 No. - 2640 of 2023
Applicant :- Mohd. Adil
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Manish Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Heard Mr. Manish Kumar Pandey, learned counsel for the applicant, Mr. R.P. Mishra, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by applicant to quash the impugned charge sheet dated 17.08.2020 in Criminal Case No.82 of 2021 (State of U.P. vs. Mohammad Saud and others), under Sections 147, 148, 149, 307, 323, 332, 336, 353, 186, 188, 504, 427, 151, 153-A, 109, 295 IPC and Section 7 Criminal Law Amendment Act, 1932 and Section 2/3 of Prevention of Damage to Public Property Act, 1984 and 83 Juvenile Justice (Care and Protection) Act arising out of Case Crime No.521 of 2019, Police Station Nageena, District Bijnor as well as impugned summoning order dated 03.08.2022 pending before 1st Additional Chief Judicial Magistrate, Bijnor.
In short, the prosecution story is that the impugned FIR has been lodged by In-charge Inspector of Police Station, Nageena against 83 named and 100-150 unknown persons alleging that on 20.12.2019, the accused persons were making illegal protest against Citizenship (Amendment) Act 2019 in Kasba Nagina, District Bijnor while there was Section 144 was enforced. Protestors were carrying Sticks, Stones, Glass Bottles, Lathi Danda etc. It is further alleged that while raising religious slogans, some persons amongst the crowd started pelting stones at the police officials and beaten them as well as other passersby with aforementioned weapons that had been hidden. In the alleged incident, certain police personnel were bodily injured. Recovery of lathi, danda, stones, piece of glass etc. has also been made. FIR also states that protestors while abusing fled away from the spot and the injured were sent to the hospital for treatment.
Submission of learned counsel for the applicant is that the applicant has been falsely implicated in the present case just to pressurize and harass the applicant. The applicant was neither named in the FIR nor charge sheet has been submitted against the applicant. In the alleged incident, 13 persons have sustained simple injuries. The investigating officer has recorded the statement of opposite party no.2 under Section 161 Cr.P.C. in which he has not levelled any allegation against the applicant and no role has been assigned against the applicant. Further submission is that the investigating officer, as a documentary evidence, has collected the whatsApp chat of 223 participants in which alleged applicant is one of them but there is no any incriminating material in the aforesaid chat to the extent that any alleged offence is made out against the applicant. Further submission is that investigating officer has also recorded the statement of SDM, Nagina and Circle Officer, Nagina, who have also not levelled any allegation against the applicant. Thereafter, without prior permission from the Magistrate, the matter has been investigated and second supplementary charge sheet has been submitted against the applicant and 10 other persons on the basis of same material which were already available at the time of filing the charge sheet against 83 persons. Further submission is that there was no fresh or new material available even without permission of the magistrate for further investigation, second supplementary charge sheet has been submitted and the learned Magistrate without considering this aspect in a routine manner has taken cognizance and ultimately summoned the applicant and others for facing trial, hence, the impugned cognizance order as well as summoning order is illegal and arbitrary. Further submission is that no offence against the applicant is disclosed and the court below has utterly failed to consider as no prima facie case is made out against the applicant.
In support of his submission, learned counsel for the applicant has relied upon the judgment in the cases of Surender @ Tannu @ Tanva vs. State of NCT of Delhi, 2022 (0) Supreme (Del) 490 and the Hon'ble Apex Court in the case of Vinay Tyagi vs. Irshad Ali @ Deepak and others, 2013 AIR SCW 220 (para 15, 38 and 39).
Per contra, Mr. R.P. Mishra, learned Additional Government Advocate vehemently opposed the contention raised by learned counsel for the applicant and has submitted that in the investigation when the investigating officer found that prima facie the appellant was involved in the commission of the offence, supplementary charge sheet has been submitted against the applicant and other co-accused persons. The judgment relied upon by the learned counsel for the applicant is not applicable in the present case. He has further submitted that earlier the co-accused Mohd Shakir and 66 others have challenged the proceeding of Criminal Case No.82 of 2021, which is also challenged by the applicant by means of present application, by filing Application u/s 482 No.40229 of 2022, which was dismissed by this Court vide order dated 04.04.2023, hence, the present application may also be dismissed. In support of his submission, he has relied upon the latest judgment of Luckose Zachariah @ Zak Nedumchira Luke and others vs. Joseph Joseph and others, reported in 2022 SC Online 241.
From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
Accordingly, the present application under Section 482 Cr.P.C. is devoid of merit and it is, accordingly, dismissed.
After passing this order, learned counsel for the applicant submitted that applicant may be permitted to move discharge application before the court concerned.
However, considering the nature of the allegations and submissions made by learned counsel for the applicant, it is directed that in case the applicant appears before the trial court through a proper application for discharge at appropriate stage, the same shall be considered and disposed of by the trial court in accordance with law, expeditiously, from the date of production of certified copy of this order.
Order Date :- 5.4.2023
Ajeet
