Nazar Mohammad vs State Of U.P. And Another
2023 Latest Caselaw 14782 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:103785
 
Reserved on 25th April, 2023
 
Delivered on 11th May, 2023
 
Court No. - 53
 
Case :- APPLICATION U/S 482 No. - 6882 of 2019
 
Applicant :- Nazar Mohammad
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Jagdish Prasad Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shiv Shanker Prasad,J.

1. Heard Jagdish Prasad Mishra, learned counsel for the applicant and learned A.G.A. for the State.

2. The present application has been filed under Section 482 to quash the entire proceedings of Case No. 1948/9 of 2001 (State Vs. Nazar Mohammad) and also to quash the order dated 24.01.2019 passed in Case No. 1948/9 of 2001, under Sections 302, 147, 201 I.P.C., Police Station Purkazi, District Muzaffarnagar arising out of Case Crime No. 24 of 2001, pending in the court of learned Chief Judicial Magistrate, Muzaffarnagar. And also to direct the court below to expunge the case against the applicant in pursuance of the order dated 28.09.2016 passed by the Special Judicial Magistrate, C.B.I., Ghaziabad in Misc. Case No. 146 of 2009 (Akbar Ali Vs. C.B.I.).

Case of the Prosecution

3. An F.I.R. has been lodged by the O.P. No.2 on 5th February, 2001 at 16.35 hours (04:35 p.m.) against five named accused persons alleging therein that there is litigation going on between the informant and family of Irtaza, resident of the same colony. It is further alleged that on 3rd February, 2001 at about 06:00 p.m. (evening), Irtaza and his brother-in-laws, namely, Nazar Mohammad and Nawab went to the shop of his son, where he used to do repairing work of the tractors, at that time Sultan and Yameen were present at the shop and in front of them, these accused persons asked his son to take a decision for resolving the dispute between them. During the conversation, the other accused persons, namely, Tamkeen and Idrish also came there and these accused persons also advised his son to take final decision, as that is the best thing. All these accused persons called his son to come with them and took him away along with them from his shop. When his son did not come to his house, the informant/opposite party no.2 in the morning tried to search him and during the search, Sultan and Yameen told him that all five named accused persons took his son along with them for taking a decision in the dispute. On receiving the said information, the informant with the help of his family members and relatives made all efforts to search his son but he could not succeed to search him. It is further alleged that today i.e. 5th February, 2021 when he was searching his son along with inmates of his colony and they reached the field of Haneef, then Mehmood and Yashin told him that on 4th February, 2021 at about 06:00 p.m. (evening), they saw his son along with accused Irtaza, Nazar Mohammad, Nawab and Idrish going to sugar-cane field of Zahoor and they also saw the accused coming out from the said sugar-cane field and at that time, his son Irshad was not with them. Mehmood and Yashin further stated that when they saw the accused, they threatened to kill them if their presence would have been disclosed to anyone. Thereafter the informant and inmates of his colony went to the sugar-cane field of Zahoor and on searching, he found the dead body of his son at about 02:00 p.m. hiding in a grasses of the said sugar-cane field and he also saw that a door was also tied on neck of his son. It is further alleged that he assured that due to litigation going on between his son and the accused persons, they killed him.

4. After lodging of the FIR, the investigation proceeded under Chapter XII Cr.P.C. and the applicant was arrested and sent to Jail. The Investigation Officer after recording statements of witensses under Sections 161 Cr.P.C. submitted the charge-sheet on 29th June, 2001 against the applicant only as the other accused persons were absconding. After submission of the charge sheet, the complainant/informant made an application before the Senior Superintendent of Police, Muzaffarnagar, who transferred the case on 14.04.2001 to the Police Station Sikheda, Distict Muzaffarnagar. After investigation the Station House Officer of Police Station Sikheda also found that the accused persons named in the FIR are not actual culprits. In the investigation, the Station House Officer of police station Sikheda found that Imran, Furkan, both sons of Sher Ali, resident of Kamheda, Police Station Kakaruli, District Muzaffarnagar and Sharif son of Bhoora, resident of village Tevra, Police Station Kakarauli, District Muzaffarnagar were involved in the murder of son of the informant, namely, Irshad on the basis of statements of Murtaza, son of Faiyya, resident of Tevra, Police Station Kakarauli, District Muzaffarnagar, and Muslim son of Abdul, and Sharaga son of Saddik, Zasba-Purkazi, District Muzaffarnagar.

5. Thereafter since the police did not find the involvement of any accused persons named in the FIR, submitted the final report against them. After submission of the final report, the informant moved another application for transfer of the case and the case was transferred to the C.B.C.I.D., thereafter, on 26.07.2002, pursuant to the order of this Court the case was again transferred from C.B.C.I.D. to Central Bureau of Investigation (for short "CBI") and the case was registered at CBI/SCB/Lucknow as RC3(S)03/CBISICIV/LKO on 30.01.2003 and the investigation was taken up by the CBI.

6. The applicant filed application before this Court bearing Criminal Misc. Bail Application No. 14925 of 2001 (Nazar Mohammad Vs. State of U.P.), wherein this Court enlarged the applicant on bail and also directed to the CBI to furnish the latest report with regard to the progress of the investigation within four weeks. After the investigation, the CBI submitted final report on 06.10.2006 in the court of Special Judicial Magistrate, CBI Ghaziabad on 03.01.2003 and against the final report dated 06.10.2006, the informant filed the protest petition on 22.02.2007 and on 18.06.2007 after hearing on the protest petition, the Special Judicial Magistrate, CBI, Ghaziabad directed the CBI to further investigate the mater and submit the report.

7. The CBI, SCB LKO again submitted final report on 17.07.2009 against all named persons. After submission of the second/further final report, the Special Judicial Magistrate, CBI, Ghaziabad accepted it vide order dated 28.09.2016.

8. Further it is case of the applicant that after transferring the case to the CBI for investigation, the applicant moved an application before the Chief Judicial Magistrate, Muzaffarnagar on 26.02.2002 and after hearing the parties, the learned Chief Judicial Magistrate, Muzaffarnagr stayed the proceeding of case No. 1948/9 of 2001.

9. After acceptance of the second final report by the Special Judge Magistrate, CBI, Ghaziabad vide order dated 28.09.2016, applicant moved an application on 24th January, 2019 for dropping the proceeding in pursuance of the final report submitted by the CBI before the Court of Chief Judicial Magistrate, Muzaffarnagar, who after hearing the counsel of the applicant an after perusal of the order dated 28.09.2016 accepting the second final report, has passed an order dated 24th January, 2019 recording that that in the above noted case after submission of the charge sheet, the cognizance had already taken on 29.06.2001 and the same has not been challenged before any higher court, as he has no power to recall his own order. On such finding, the C.J.M., Muzaffarnagar has rejected the application of the applicant.

Submission advanced by the learned counsel for the applicant:

10. In present criminal case, first time I.O. submitted that charge-sheet against the applicant, thereafter and on the application made by the informant, the S.S.P., Muzaffarnagar transferred the case to the police station Sikheda for further investigation, and the Police of police station Sikheda had not found the involvement of the applicant or other persons named in the FIR in the present criminal case by stating that the murder of the deceased committed by the unknown person and submitted final report on 25th September, 2001. Thereafter, the informant moved another application for transferring the case to other agency and on the direction of the S.S.P., Muzaffarnagar the case was transferred to C.B.C.I.D. for further investigation, thereafter, the case was further transferred to the C.B.I. under order of this Court dated 26th July, 2002 and after investigation, CBI had also not found involvement of the accused persons named in the FIR including the applicant and submitted the final report on 06.10.2006. Thereafter, the Special Judge Magistrate, CBI, Ghaziabad took cognizance on the final report and after perusal of the case directed the C.B.I. to further investigate the case by the order dated 18.06.2007. The C.B.I. LKO further investigated the case and again submitted the final report before the court of Special Judge Magistrate, CBI, Ghaziabad on 17.07.2009, who accepted it vide order dated 28.09.2016. Meaning thereby that on three occasions the Investigating Agencies like Civil Police and C.B.I. submitted final reports but on the basis of first investigation did by the Civil Police, which submitted the charge-sheet in the present criminal case, the Chief Judicial Magistrate, Muzaffar ignoring the order of the Special Judicial Magistrate, C.B.I. Ghaziabad accepting the second final report submitted by the C.B.I. dated 28th September, 2016, passed the impugned order rejecting the application of the applicant for closing the case against the applicant on the ground that he has no power to recall his own order as per the settled laws. Learned counsel for the applicant submits that the neither the applicant has committed any offence nor he was involved in such type of offences but due to civil dispute between the parties in order to exert pressure, the opposite party no.2 has lodged the FIR implicating the applicant along with others. After various investigations, the Investigating Agencies have also found that no case is made out against the applicant and other persons named in the FIR.

11. On the cumulative strength of the aforesaid, learned counsel for the applicant submits that the order impugned passed by the Chief Judicial Magistrate rejecting the application of the applicant to drop the criminal proceedings against him on the basis of final report accepted by the Special Judicial Magistrate, C.B.I., Ghaziabad cannot be legally sustained and is hereby quashed.

12. On the other-hand, learned A.G.A. submits that there is no illegality or infirmity in the order impugned so as to warrant any interference by this Court under Section 482 Cr.P.C., as such the present application is liable to be rejected/dismissed.

13. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application specially the order impugned.

14. It is no doubt true that as per the provisions of Section 362 Cr.P.C. the court of Chief Judicial Magistrate or any other Court has no power to review or recall its earlier order passed in criminal matters. For ready reference Section 362 Cr.P.C. reads as follows:

"362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

15. However, in the present case such issue does not applicable in the present case. It is no doubt true that after submission of the charge-sheet on 26th June, 2001 by the Police, the concerned Magistrate had already taken cognizance vide order dated 29th June, 2001 but in the criminal misc. bail application filed by the applicant bearing No. Criminal Misc. 2nd Bail Application No. 14925 of 2001, a Coordinate Bench of this Court transferred the investigation of the present criminal case to the C.B.I. and in compliance of the said order, the C.B.I. conducted the investigation and submitted its final report on which protest petition has been filed and the Special Judicial Magistrate, C.B.I. Ghaziabad directed the C.B.I. for further investigation and this time again the C.B.I. submitted final report, which has been accepted by the Special Judicial Magistrate, C.B.I. Ghaziabad vide order dated 28th September, 2016. On the basis of such facts, this Court is of the opinion that order of this Court passed in the aforesaid bail application transferring the investigation of the present case to the C.B.I.D. the order of the concerned Magistrate dated 29th June, 2001 taking cognisance on the charge-sheet dated 26th June, 2001 will have no legs to stand.

16. Apart from the above, this Court is also of the view that before passing the order impugned rejecting the application of the applicant, the Chief Judicial Magistrate concerned first should have summoned the final reports submitted by the C.B.I. before the Court of Special Judicial Magistrate, C.B.I. Ghaziabad; secondly examined the materials submitted by the Police along with charge-sheet as well as submitted by the C.B.I. along with two final reports, one of which has already been accepted by the Special Judicial Magistrate, C.B.I. Ghaziabad; and thirdly pass any order in accordance with law applying his judicial mind. If the Chief Judicial Magistrate after examining the materials finds that no case is made out against the applicant, he should have exercised his powers embodied in Section 227 Cr.P.C. While passing the order impugned such procedure has not been followed by the Chief Judicial Magistrate, which is per se illegal.

17. Accordingly, this Court sets aside the order impugned dated 24.01.2019 passed in Case No. 1948/9 of 2001, under Sections 302, 147, 201 I.P.C., Police Station Purkazi, District Muzaffarnagar arising out of Case Crime No. 24 of 2001, pending in the court of learned Chief Judicial Magistrate, Muzaffarnagar. The Chief Judicial Magistrate is directed to reconsider the application of the applicant for dropping/withdrawing the criminal case against the applicant afresh, in accordance with law and the observations made herein above, by means of a reasoned speaking order, preferably within a period of one month from the date of production of a certified copy of this order.

18. The present application is allowed subject to the observation and direction made herein above.

19. There shall be no order as to costs.

(Shiv Shanker Prasad, J.)

Order Date :- 11.05.2023

Sushil/-