Partly allowed

Fate Mohammad and 2 Others v. State of U.P. and Another

Allahabad HC4 Feb 2020A482/1149/2020

Case brief

AI extract

What is this about?

This application under Section 482 CrPC sought to quash the charge-sheet and cognizance order under the Prevention of Damage to Public Property Act, alleging the FIR was based on false grounds and contained no ingredients of the offence.

What did the court decide?

Cognizance order dated 12.7.2017 regarding offence under Section 4 of the Act is set aside; proceedings under Section 3 of the Act are affirmed.

Fate Mohammad and 2 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2020)

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Court No. - 78

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Case :- APPLICATION U/S 482 No. - 1149 of 2020

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Applicant :- Fate Mohammad And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Kumar Gupta Counsel for Opposite Party :- G.A.

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Hon'ble Om Prakash-VII,J.

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Supplementary affidavit filed today is taken on record.

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Heard learned counsel for the applicants and the learned AGA for the State and perused the record.

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This application under Section 482 CrPC has been filed with the prayer to quash the charge-sheet, cognizance order dated 12.7.2017 as well as the entire proceedings in Case No. 2301 of 2017, arising out of Case Crime No. 593 of 2016, under Sections 3 and 4 Prevention of Damage to Public Property Act (in short 'the Act'), Police Station Badagaon, District Varanasi pending before the Additional Chief Judicial Magistrate-Vth, Varanasi and further to stay further proceedings of the aforesaid case.

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It is submitted by the learned counsel of the applicants that the FIR has been lodged on false grounds while the applicants have not committed any offence. None of the ingredients of offence under Section 4 of the Act are available in the present matter. Concerned Magistrate while taking cognizance for the offence under Section 4 of the Act did not apply judicial mind. At this juncture, learned counsel for the applicants referred to contents of F.I.R. as well as the provisions of Sections 3 and 4 of the Act and submitted that continuation of proceeding of the aforesaid case against the applicant for the offence under Section 4 of the Act is nothing but an abuse of process of law. The police has also submitted charge sheet on the basis of insufficient evidence against the applicants. The present prosecution has been instituted with a malafide intention. Learned counsel for the applicants pointed out certain documents and statements in support of his contention.

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Learned AGA has opposed the prayer.

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I have considered the submissions made by the learned counsel for the parties and have gone through the entire record carefully.

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In this matter, as is evident from the F.I.R. itself, allegation against the applicants is regarding encroachment of pond. Nothing has been mentioned in the F.I.R. to attract the provisions of Section 4 of the Act. The said Section runs as under:

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"4. Mischief causing damage to public property by fire or explosive substance.— Whoever commits an offence under sub-section (1) or subsection (2) of section 3 by fire or explosive substance shall be punished with rigorous imprisonment for a term which shall not be less than one year, but which may extend to ten years and with fine: Provided that the court may, for special reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than one year".

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As is evident, nothing has been alleged against the applicants to attract the offence under Section 4 of the Act. Hence, in my view, cognizance taken in the matter for the said offence is illegal and without application of judicial mind, which requires interference by this Court. However, from a perusal of the material available on record and keeping in view the facts of the case, at this stage it cannot be said that offence under Section 3 of the Act levelled against the applicants are not made out. Hence, prayer made in the application to this extent is refused.

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In view of the above discussions, in my view, there is some substance in the submissions made by learned counsel for the applicants. The application is liable to be allowed in part and impugned cognizance order against the applicants regarding offence under Section 4 of the Act is liable to be quashed/set-aside.

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Accordingly, application is partly allowed . Cognizance order dated 12.7.2017 regarding offence under Section 4 of the Act against the applicant is set aside. However, said order is affirmed so far as offence under Section 3 of the Act is concerned against the applicants.

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In the last, learned counsel for the applicants urged for expeditious disposal of bail application of applicants.

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Hence, it is observed that in case applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.

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Order Date :- 4.2.2020

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safi

Fate Mohammad and 2 Others v. State of U.P. and Another

Case brief

What is this about?

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Fate Mohammad and 2 Others v. State of U.P. and Another

Case brief

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