Jawed Aslam vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 26909 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:64280
 
Reserved
 
Court No. - 12
 
Case :- APPLICATION U/S 482 No. - 3380 of 2023
 
Applicant :- Jawed Aslam
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lok Bhawan Lko. And 4 Others
 
Counsel for Applicant :- Gauri Shankar Maurya
 
Counsel for Opposite Party :- G.A.
 

 
Case :- APPLICATION U/S 482 No. - 4891 of 2023
 
Applicant :- Lalman
 
Opposite Party :- State Of U.P. Thru.Prin.Secy.Addl. Chief Secy. Deptt. Of Home And Others
 
Counsel for Applicant :- Rohit Tripathi,Shishir Srivastava,Syed Zulfiqar Husain Naqvi
 
Counsel for Opposite Party :- G.A.
 

 
Case :- APPLICATION U/S 482 No. - 5547 of 2023
 
Applicant :- Om Prakash Pandey
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Civil Secrett. Lko. And 2 Others
 
Counsel for Applicant :- Anuj Dayal,Reshu Sharma
 
Counsel for Opposite Party :- G.A.
 

 
Case :- APPLICATION U/S 482 No. - 5816 of 2023
 
Applicant :- Mohd. Sarafaraz Ahamad
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Govt. Lok Bhawan , Lucknow And 4 Others
 
Counsel for Applicant :- Saddam Khan,Gauri Shankar Maurya
 
Counsel for Opposite Party :- G.A.
 

 
Case :- APPLICATION U/S 482 No. - 5551 of 2023
 
Applicant :- Munnar Ram
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, U.P. Govt. Lok Bhawan Lko. And 2 Others
 
Counsel for Applicant :- Anuj Dayal,Reshu Sharma
 
Counsel for Opposite Party :- G.A.
 

 

 
Hon'ble Rajeev Singh,J.

1. Heard Sri Nadeem Murtaza, Advocate assisted by Sri Sudhanshu Shekhar Tripathi, Sri Pranjal Krishna & Ms. Snigdha Singh, Advocate, Sri Rohit Tripathi, Advocate, Syed Zulfiqar Hussain Naqvi, Advocate, Sri Shishir Srivastava, Advocate learned counsel for the applicant and Sri V.K. Shahi, learned A.A.G. assisted by Sri Anurag Verma, learned A.G.A.

2. The Application U/S 482 No. 3380 of 2023 is filed with a prayer to quash the report dated 30.11.2022 submitted by the Special Investigation Team as well as all consequential proceedings.

3. The Application U/S 482 No.4891 of 2023 is filed with a prayer to stay the operation and implementation of recommendation of the decision dated 19.12.2022 taken by a committee to consider the report of Special Investigation Team and order dated 9.01.2023.

4. The Application U/S 482 No.5547 of 2023 is filed with a prayer to quash the report dated 30.11.2022 submitted by the Special Investigation Team as well as all its consequential proceedings.

5. The Application U/S 482 No.5816 of 2023 is filed with a prayer to quash the report dated 30.11.2022 submitted by the Special Investigation Team, resolution dated 19.12.2022 as well as all its consequential proceedings.

6. The Application U/S 482 No.5551 of 2023 is filed with a prayer to quash the report dated 30.11.2022 submitted by the Special Investigation Team, resolution dated 19.12.2022 as well as all its consequential proceedings.

7. In all these applications under Section 482 Cr.P.C., there is a common prayer for quashing of the report of Special Investigation Team dated 30.11.2022, minutes of meeting dated 19.12.2022, Government Order dated 9.1.2023 for taking action in pursuance of the aforesaid decision of the Committee, and an F.I.R. No.0014/2019 under Sections 409, 420, 467, 468, 201, 204, 166, 120-B I.P.C., Police Station S.I.T., District Lucknow Rural.

8. Learned Additional Advocate General, Sri V.K. Shahi raised preliminary objection on the point of maintainability of the present cases and submits that fact finding report as well as the decision of State Government for lodging of F.I.R. and the First Information Report in question cannot be challenged before this Court under Section 482 Cr.P.C. and he also relied on the decision of larger bench of this Court in the case of Ram Lal Yadav Vs. State of U.P. & Ors. reported in 1988 SCC Online All 603.

9. Learned counsel for the applicant opposed the objection of Mr. Shahi, Additional Advocate General and submits that issue in the case of Ramlal Yadav (supra) was decided, on the other aspect, on the point that whether High Court can interfere in the investigation under Section 482 Cr.P.C. and police officer can be restrained from arresting of the accused, he submits that this controversy is already decided in the catena of judgments that F.I.R. as well as complaint can be quashed under Section 482 Cr.P.C. if the same does not discloses any offence. He also submits that once provision of Criminal Procedure Code comes into play then every action of the agency or court can be examined by this Court under Section 482 Cr.P.C. He also drew attention of the Court on the provisions of Section 482 Cr.P.C.

10. Learned counsel for the applicant submits that provisions of Section 438 Cr.P.C. was omitted in the State of U.P. and protection of pre-arrest was not available to the accused persons with effect from 28.11.1976 in accordance with provision of U.P. Act No.16/1976, therefore, application under Section 482 Cr.P.C. was being filed before this Court after the deletion of provision of Section 438 Cr.P.C. with a prayer for restraining the police from the arrest during the course of investigation.

11. Learned counsel for the applicant further submits that controversy started with the case of Puttan Singh Vs. State of U.P. reported in 1987 24 ACC 268, wherein it was opined by the learned Single Judge while hearing a petition U/S 482 Cr.P.C. that it is difficult to accept the prayer of the applicant to stay the arrest of the petitioner while exercising inherent powers under Section 482 Cr.P.C., however, in the identical matter, a co-ordinate bench of this Court granted protection to the co-accused from being arrest during the course of investigation, and learned Single Judge differed from the views expressed by the co-ordinate bench by referring the matter to the Division Bench of Hon'ble Mr. Justice B.N. Katju & Hon'ble Mr. Justice B.L. Yadav to answer the reference made by the learned Single Judge in the matter of Puttan Singh (supra). The aforesaid Division Bench answer the questions vide judgment dated 8.1.1987 in Puttan Singh (supra) and held that the High Court in terms of its inherent power under Section 482 Cr.P.C. cannot interfere with the investigation being conducted by the police, however, after the pronouncement of judgment of Division Bench in the case of Puttan Singh (supra), this controversy again came up for consideration in the matter of Prasant Gaur Vs. State of U.P. reported in 1987 24 ACC 396 vide order dated 28.05.1987 and framed following three questions to be referred and considered by a larger bench comprising of not less than five judges for answering following reference:

(i) whether under Section 482 Cr.P.C. the High Court has inherent powers to interfere with the investigation by the police?

(ii) Whether the High Court has powers to stay arrest during investigation?

(iii) Whether the decision reported in 1987 1 AWC 404 (Puttan Singh) lays down a correct position of law?

12. Learned counsel for the applicant further submits that subsequently the case of Prasant Gaur (supra) placed before 5 Judges Bench and full bench of the aforesaid Judges after considering various pronouncements of High Court, Supreme Court and Privy Council went on to answer the questions posed before them and gave following answers:

"78. Our answer to question no.(i) is as follows:

Investigation into an offence is statutory function of the Police and the Superintendent thereof is vested in the State Government. It is only in the rarest of rare cases, and that too, when it is found by the Court that the First Information Report and the investigation ever a reasonable length of time, do not disclose the commission of a cognizable offence, or any offence of any kind, that the High Court may, under Section 482 of the Code, interfere with the investigation.

79. Our answer to Question no. (ii) is as follows:

Under Section 482 of the Code the High Court may not direct stay of arrest during investigation except for a limited period in a case of such exceptional nature as is referred to in the preceding paragraph.

80. In view of our answers to the Question Nos. (i) and (ii) the Question no. (iii) does not require to be answered and hence returned unanswered.

13. Thereafter, Full Bench of seven judges was constituted and gave answers to the reference made to it and overruled the full bench decision rendered in Prasant Gaur (supra) vide order dated 1.2.1989, reported as Ram Lal Yadav (supra). He further submits that again the matter of Prasant Gaur came up for consideration before Hon'ble Mr. Justice S.I. Jafri, whereby he again considered the judgments of High Court, Supreme Court and Privy Council and found that amongst the cases referred by seven judges in the case of Ramlal (supra), the principal laid down by the Hon'ble Supreme Court was not considered, as Apex Court has not opined in any of the cases that power under Section 482 Cr.P.C. cannot be exercised, only exception being the case of R.P. Kapur Vs. State of Punjab (A.I.R. 1960 SC 866), where the question of quashing the F.I.R. before the submission of charge sheet has arisen and from the observation made therein, therefore, it is clear that F.I.R. can be quashed, if no case is made out. Based on these observations the Hon'ble Single Judge once again requested the Hon'ble Chief Justice to constitute a larger bench for straining the correctness of the law laid down by the seven Judges Bench in the case of Ram Lal Yadav (supra) with the following questions:

(i) Whether in view of Pavitran's case, 1990 2 JT Page 43 and R.K. Srivastava case 1989 (4) SCC 59, the full bench decision in Ramlal Yadava's case (supra) is a good law?

(ii) Whether the inherent power of the High Court recognize under section 482 of the Code of Criminal Procedure is a reflection of an inherent constitutional power and would be available to correct the breaches of Article 21 committed by the Police during investigation and arrest, and;

(iii) Whether investigation and arrest on the basis of F.I.R. which discloses offence would be violation of Article 21 and not being authorized by Cr.P.C. can be checked under Section 482 Cr.P.C.

14. Learned counsel for the applicant submits that despite the aforesaid reference is made in 1990 for constitution of larger bench in the case of Prasant Gaur decided on 12.12.1990 reported as 1991 28 ACC 399, no such larger bench has been constituted.

15. Learned counsel for the applicant submits that Section 482 Cr.P.C. clearly provides that nothing shall be deemed to limited or affect the inherent power of the High Court to make such orders as may be necessary to secure the ends of justice and in case, the F.I.R. or complaint does not discloses any of the offence, then same can be quashed to secure the ends of justice.

16. Considering the judgments relied by the parties as well as provisions under Section 482 Cr.P.C., it is undisputed fact that provisions of anticipatory bail under Section 438 Cr.P.C. was omitted in the State of U.P. with effect from 28.11.1976 and thereafter, there was no provision of protection of pre-arrest after lodging of F.I.R., as a result, the petition under section 482 Cr.P.C. was being filed with the prayer to restrain the police from the arrest during the course of investigation and the controversy came before the bench of seven judges, in which, it was held that during the course of investigation, no interference with the arrest of the accused is to be done but it was clarified that High Court can always issue writ of mandamus under the Constitution of India restraining the police officials to misusing its legal powers. As in the recent judgment passed by the Apex Court in the Criminal Appeal No. 1456 of 2015 'Abhishek Vs. State of M.P.' vide order dated 31.8.2023, it was held that High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr.P.C. to quash the F.I.R. even when a charge sheet is filed during the pendency of such petition. Para No.11 of the aforesaid judgment reads as under:-

"11. This being the factual backdrop, we may note at the very outset that the contention that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected.

It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr.P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. vs. State of Gujarat and others {(2011) 7 SCC 59}]. This principle was reiterated in Anand Kumar Mohatta and another vs. State (NCT of Delhi), Department of Home and another [(2019) 11 SCC 706]. This issue, therefore, needs no further elucidation on our part."

17. Considering all these facts and circumstances and legal pronouncement as discussed above, it is categorically held by the Apex Court in the recent judgment of Abhishek (supra) that petition under Section 482 Cr.P.C. is maintainable for quashing of the F.I.R., therefore, objection raised by the learned Additional Advocate General, is having no force and is accordingly, rejected.

18. Learned counsel for the applicant submits that on the basis of incorrect facts, enquiry was ordered by the State Government and without conducting a thorough enquiry, the report was prepared by the Special Investigation Team (S.I.T.) dated 30.11.2022 and the alleged report was discussed in the so called meeting of Additional Chief Secretary, Minority Welfare and Waqf Department, Government of U.P., Principal Secretary, Department of Home as well as Director General of Police on 19.12.2022 and accepted the recommendations of S.I.T.. He further submits that without giving any adequate opportunity to the applicant, the State Government accepted the recommendations of Committee for lodging of the F.I.R. and the F.I.R. in question was lodged. He further submits that committee failed to consider the provisions of Madarsa Education Board Act, 2004 and also submits that applicants acted in good faith and shall entitle to get the benefit under Section 27 of Act of 2004, therefore, the impugned enquiry report as well as Government Order and the F.I.R. are liable to be quashed.

19. Learned Additional Advocate General, vehemently opposed the prayer of the applicant and submits that enquiry report cannot be challenged before this Court as this is a report only with the intention to verify the allegations before lodging of the F.I.R. He further submits that during the course of verification, it was found that 313 Madarsa in the District Azamgarh were running against prescribed standards and 39 Madarsa were not having existence on the ground. He further submits that documents of Madarsa related to recognition, etc were also not traceable as the fund which was received for the modernization of Madarsa was embezzled and it is a matter of investigation. He further submits that as the F.I.R. discloses the commission of offence, in such, circumstances, F.I.R. cannot be quashed and submits that it is also expected from the applicants to cooperate in the investigation.

20. Considering the submissions of learned counsel for the parties, contents of the application, other relevant documents, alleged enquiry report as well as Government Order and the minutes of the meeting dated 19.12.2022, in which, the recommendation of meeting was accepted for lodging of F.I.R., thereafter, F.I.R. in question was lodged on after going through the contents of F.I.R. it cannot be said that F.I.R. does not discloses the commission of offences, as there is allegation that 39 Madarsa are not in existence and fund for modernization was released by the officials and their records are also not available, therefore, it cannot be said that no offence is made out, in such circumstances, the application under Section 482 Cr.P.C. has no force and is liable to be dismissed.

21. In view of the above, the present application under Section 482 Cr.P.C. is dismissed.

Order Date :- 04th October, 2023.

Gaurav/-