Nazmul @ Nazmul Zama Khan vs State Of U.P. And Another
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Allahabad High Court

Nazmul @ Nazmul Zama Khan vs State Of U.P. And Another on 15 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:87874
 
Court No. - 91
 
Case :- APPLICATION U/S 482 No. - 25954 of 2023
 
Applicant :- Nazmul @ Nazmul Zama Khan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rishika Raj Singhal,Shivendra Raj Singhal,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Prashant Kumar,J.
 

1. Heard Sri Dharmendra Singhal, learned Senior Counsel assisted by Sri Shivendra Raj Singhal, learned counsel appearing for the applicant, Sri S.K. Chandraul, learned A.G.A. for the State and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing the charge-sheet dated 23-04-2023, summoning order dated16-06-2023 as well as the entire proceedings of Criminal Case No. 10647 of 2023 (State Vs. Yunus and others) arising out of case crime no. 0487 of 2022, under Sections 147, 149, 332, 353, 336, 307, 427, 283, 341 IPC and Section 7 of Criminal Law Amendment Act and Section 2/3 of Prevention of Damages to Public Property Act, P.S. Alapur, district Budaun.

3. Learned Senior Counsel appearing for the applicant submits that in the instant case an F.I.R. was lodged on 10-12-2022 alleging therein that during the course of checking the police personnel had stopped a bike for checking but the rider instead of showing the papers called number of villagers on the spot and mob started pelting stones and attacked by sticks and rods on the police personnel, destroyed police vehicle and five police personnel sustained injuries. After investigation the police submitted charge-sheet on 23-04-2023 and summons were issued on 16-06-2023. The applicant has challenged the charge-sheet, summoning order as well as the entire proceedings by means of the instant application.

4. Learned Senior Counsel submits that Call Detail Report of the applicant shows that the applicant was not present on the alleged place of incident and he was present somewhere else. It is further submitted by the learned counsel for the applicant that his name was surfaced in the confessional statement of co-accused, which cannot be treated as evidence under the Evidence Act. Further submission is that except confessional statement there is nothing on record against the applicant. It is further submitted that even considering Section 190 Cr.P.C. there is no ground of taking cognizance of offence against a person on the verge of suspicion, which was in existence in the earlier Code of Criminal Procedure, 1898. Further submission is that no offence under Section 120-B IPC is made out against the applicant. It is also submitted that the applicant has been roped in the present case merely on the verge of allegation pertaining to criminal conspiracy and as per Section 120A Cr.P.C. there must be an agreement and meeting of minds of two or more persons to commit an offence. For ready reference Section 120A of Cr.P.C. is quoted hereunder:-

"120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done,

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object"

5. To buttress his arguments, learned Senior Counsel has placed reliance upon para nos. 12 and 13 of the judgment of the Hon'ble Apex Court in the case of State of Kerala Vs. P. Sugathan, 2000 (8) SCC 203.

6. Sri S.K. Chandraul, learned A.G.A. for the State vehemently opposed the application and contended that this is a offence against the society. In the incident, number of villagers on the spot and mob started pelting stones and attacked by sticks and rods on the police personnel, destroyed police vehicle and five police personnel sustained injuries. From bare perusal of the F.I.R. it cannot be said that no prima facie offence is made out against the applicant. After thorough investigation out of 300 only handful of persons have been charge-sheeted, who were involved in the incident, including the applicant. It is further submitted that the court below has rightly taken cognizance and no interference is required by this Court in the instant application as well as the on going proceedings. Further submission is that from bare perusal of the F.I.R. it cannot be said that no prima facie offence is made out against the applicant.

7. Heard counsel for the parties and perused the record.

8. 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.

9. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-

"(i) 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.

(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(vii) Where a criminal proceeding is manifestly attended with mala fides 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."

10. Further, the Hon'ble Supreme Court in the 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 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 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.

11. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.

12. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.

Order Date :- 15.5.2024/pks