Dismissed

Maqsood Ahmad and 2 Others v. State of U.P. and Another

Allahabad HC12 Jul 2018A482/11516/2018

Case brief

AI extract

What is this about?

Application under Section 482 CrPC to quash murder proceedings was dismissed. The Court held that factual disputes regarding material and investigation fairness require trial stage appraisal, not quashing of cognizance, and distinguished the cited precedent as wholly distinguishable.

What did the court decide?

Application under Section 482 CrPC to quash the charge sheet and proceedings was dismissed.

Maqsood Ahmad and 2 Others Vs State of U.P… — Murder and Culpable Homicide | Allahabad HC (2018)

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Court No. - 49

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Case :- APPLICATION U/S 482 No. - 11516 of 2018

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Applicant :- Maqsood Ahmad And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vineet Pandey,Amit Krishna,Shashank Mishra Counsel for Opposite Party :- G.A.,Rajiv Lochan Shukla

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Hon'ble Saumitra Dayal Singh,J.

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Heard Shri Amit Krishna, learned counsel for the applicants, Sri Nagendra Kumar Srivastava, learned A.G.A. for the State and Shri Satish Trivedi learned Senior Counsel assisted by Sri Rajiv Lochan Shukla, learned counsel for the opposite party no.2.

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The present application has been filed to quash the charge sheet dated 7.1.2016 summoning order dated 3.5.2016 as well as entire proceedings of the Criminal Case No. 5100 of 2016 (State Vs. Sabir and others), arising out of Case Crime No. 634 of 2015, under Sections 147, 148, 149, 302, 504 IPC, Police Station Dhoomanganj, District Allahabad, pending in the court of learned Chief Judicial Magistrate, Allahabad and consequential order dated 17.8.2017. and 19.9.2017 passed by the learned Chief Judicial Magistrate, Allahabad passed under Section 82 and 83 Cr.P.C.

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Learned counsel for the applicants submits that the applicants had been falsely implicated in the double murder of Ms. Alkama and her paid driver Surjeet, on 25.9.2015 at about 8:30 pm. At the outset, it has been submitted that the murder of Ms. Alkama was 'honor killing' carried out by her kin, including the opposite party no.2. Then, it has been submitted, owing to old rivalry and animosity between the applicants and opposite party no.2 and his other accomplices, the assailants tried to cover their track and lodged a false FIR implicating the applicants in that double murder. It was registered as Case Crime No. 634 of 2015, under Sections 147, 148, 149, 302 and 504 IPC, Police Station Dhoomanganj, District Allahabad. Initially, the police investigation was also unfair under the influence of opposite party no.2. Consequently, on 7.1.2016 a charge sheet was filed by the investigating agency against the applicants charging them with commission of offence under Sections 147, 148, 149, 302, 504 IPC.

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In such circumstances, the wife of the deceased Surjeet approached this Court by means of Criminal Writ Petition No. 9674 of 2017 (Preeti Devi Vs. State of U.P. and others) , alleging that the police was not conducting a fair investigation. Consequently, directions were also issued by this Court on 30.5.2017 directing the S.S.P., Allahabad to look into the matter and to ensure no innocent person be harassed.

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At that stage, on 6.7.2016 the applicants appear to have applied to the I.G. Police alleging that they had been falsely implicated in the murder of Ms. Alkama and Surjeet though it was a case of 'honor killing' of Ms. Alkama by members of her family including opposite party no.2. The I.G. police transferred the investigation to Crime Branch, Allahabad. Certain other statements appears to have been obtained during such further investigation by the Crime Branch, Allahabad and ultimately on 16.11.2017 and 4.1.2018 a supplementary report appears to have been submitted by the

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Crime Branch to charge the opposite party nos. 2 and 12 other persons as accused in the double murder of Ms. Alkama and Surjeet.

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It has also been submitted that a cognizance has also been taken by the learned Magistrate on such supplementary report and the opposite party no.2 and 12 other accused have been summoned.

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It is thus submitted that the learned Magistrate had erred in summoning the applicants on the first police report and in adopting coercive measure against them especially since upon the surrender application being filed by the present applicants, the police filed its report that the applicants were not wanted in any criminal case. He therefore submits that the proceedings being continued against the applicants are in abuse of the process of Court and they be quashed to secure the ends of justice.

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Learned counsel for the applicants has also relied upon decision of the Calcutta High Court in the Case of Dedar Bux and another Vs. Syamapada Malakar reported AIR 1914 (Calcutta) 801. Admittedly that case had arisen under the old Code. Also, that was a complaint case and not a state case. No investigation or inquiry appears to have been done in that case, either by the police or by the learned Magistrate. The complainant had himself stated before the learned Magistrate that he had, by mistake, named a person as an accused in the complaint though he subsequently realised that the offence had been committed by another. Such are not the facts in the present case and the judgment is therefore wholly distinguishable.

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Learned Senior Counsel appears on behalf of the opposite party no. 2 on the other hand submits that the undeniably upon cognizance being taken on the original police report, the applicants had been summoned by the learned Magistrate. They have yet not appeared and have yet not been granted bail. It is therefore submitted, it is wholly premature on part of the applicants to contend that there is no material on the basis of which they may be tried. Such material is stated to be existing on the police report originally submitted. Further case/defence being set up by the applicants would be a matter of evidence that may be examined at the subsequent stage/s.

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Shri Nagendra Kumar Srivastava, learned A.G.A. also submits that admittedly the prosecution has arisen for a heinous offence of murder. The personal rivalry and animosity of the present applicants and opposite party no. 2 and his accomplices apart, at present it has not been shown by the applicants that the material collected during the original investigation is not relevant or sufficient to take cognizance of such offence against the applicants. The fact that other accused that is the opposite party no. 2 and his accomplices have also being charged for the offence of murder of Ms. Alkama and Surjeet, also cannot be cited as a reason to seek expunction of the name of the applicants, at this stage.

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Such a course may be open to be taken at the stage of discharge. That stage may arrive only after applicants have appeared before the learned court below and offered to participate in the trial.

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Having heard learned counsel for the parties, it is undisputed that Ms. Alkama and her paid driver Surjeet had been violently done to death. Clearly, motive of such murder apart, it appears to be a case of murder.

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The police upon original investigation and further investigation submitted charge-sheet both against the applicants (accused in the first part) and opposite party no. 2 and his accomplices(accused in the second part). Thus material has been brought before the learned Magistrate alleging commission of offence of murder. One set of material relied in the first police report seeks to implicate the applicants while the second set of material relied in the supplementary police report seeks to implicate the opposite party no. 2 and his accomplices.

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The fact that the applicants and the opposite party no. 2 and his accomplices may have borne personal animosity towards each other, cannot be considered at this stage to hold that the applicants be exonerated. If that were to be accepted, then on the same reason the opposite party no. 2 and his accomplices should never have been summoned.

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The objection being raised by the learned counsel for the applicants is therefore found to be factual which would require appraisal of evidence. Such exercise can definitely not be gone into, at this stage, to any extent.

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It is hazardous for the court to speculate on the factual disputes that have been asserted with vehemence by the learned counsel for the applicants. Also, the Code of Criminal Procedure does not allow for recall of such cognizance order.

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The only ground on which this court may have intervened on behalf of the applicants could be that there is no material accompanying the first police report as may allow the learned Magistrate to take the cognizance against applicants. In this regard, learned counsel for the applicants has not been able to establish, to any extent, that the original police report does not contain such material.

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As to fairness or otherwise of the police investigation also, no fact or circumstance has been brought out as may lead the court to conclude that the original investigation was unfair as to warrant rejection of its fairness or credibility. The fact that the opposite party no. 2 and his accomplices have also been charged for the same offence upon further investigation, therefore, loses its significance. Thus, all contentions and objections being raised by the learned counsel for the applicants are such as may be examined by the trial court at the appropriate stage.

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The present application is misconceived or lacks merit.

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It is accordingly dismissed .

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Order Date :- 12.7.2018 Mini

Maqsood Ahmad and 2 Others v. State of U.P. and Another

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Maqsood Ahmad and 2 Others v. State of U.P. and Another

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