Dismissed

Rafiq Ali and 7 Others v. State of U.P.and Another

Allahabad HC5 Jul 2022A482/2948/2022

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. challenging the charge sheet and summons. The court held a second FIR by a different informant is maintainable and the court cannot quash proceedings when there is material evidence against the accused.

What did the court decide?

Application filed to quash charge sheet and summons dismissed in order dated 05.07.2022.

Rafiq Ali and 7 Others Vs State of U.P.and Another — Quashing and FIR | Allahabad HC (2022)

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Court No. - 80

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Case :- APPLICATION U/S 482 No. - 2948 of 2022

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Applicant :- Rafiq Ali And 7 Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Istiyaq Ali,Ali Hasan Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Ali Hasan, the learned counsel for applicants and the learned A.G.A. for State.

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Perused the record.

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Instant application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 18.09.2021 submitted in Case Crime No. 147 of 2021 under Sections 147, 148, 149, 395, 307, 323, 504, 506, 336, 332, 353, 333 I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station-Rasoolabad, DistrictKanpur Dehat, Cognizance Taking Order/Summoning Order dated 22.10.2021 passed by Special Judge (D.A.A. Act), Kanpur Dehat in consequential Sessions Case No. 1259 of 2021 (State Vs. Wazid Ali and others) under Sections 147, 148, 149, 395, 307, 323, 504, 506, 336, 332, 353, 333 I.P.C. and Section 7 Criminal Law (Amendment) Act, Police StationRasoolabad, District-Kanpur Dehat as well as the entire proceedings of the above mentioned sessions case now pending in the Court Special Judge (D.A.A. Act), Kanpur Dehat.

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Learned counsel for applicant contends that present criminal proceedings are not only malacious but also illegal and therefore, liable to be quashed by this Court. It is submitted by learned counsel for applicants that in respect of same incident, a private party namely Neha wife of applicant-2 Azmat Ali had already lodged an F.I.R. dated 21.03.2021, which was registered

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as Case Crime No. 0147 of 2021 under Sections 147, 148, 149, 395, 307, 323, 504, 506, 336, 332, 353, 333 I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station-Rasoolabad, District-Kanpur Dehat. Copy of the same is on record as Annexure-10 to the affidavit. In the aforesaid F.I.R., the date of incident has been shown as 20.03.2021. It is then submitted that in respect of same incident another F.I.R. dated 21.03.2021 was lodged by first informant/opposite party-2, Head Constable 266 Satyapal Singh and was registered as Case Crime No. 147 of 2021 under Sections 147, 148, 149, 395, 307, 323, 504, 506, 336, 332, 353 I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station-Rasoolabad, District-Kanpur Dehat (Ramabai Nagar). He therefore submits that second F.I.R. in respect of same occurrence is not maintainable. It is then contended by learned counsel for applicants that Summoning Order dated 22.01.2021 has been passed by court below without due diligence. He therefore submits that summoning order dated 22.01.2021 is manifestly illegal and therefore, liable to be quashed by this Court.

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Per contra, the learned A.G.A. opposed this application. He submits that by virtue of law laid down by Apex Court in P. Sreekumar Vs. State of Kerala and others (2018) 2 Supreme Court Cases (Cri) 578 , the second F.I.R. in respect of the same incident by another persons is maintainable.

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It is next contended that after registration of F.I.R. dated 21.03.2021, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the prosecution story as unfolded in F.I.R., On the basis of above and other material

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collected by Investigating Officer during the course of investigation, which is substantially adverse to the applicants, Investigating Officer opined to submit a charge sheet. Accordingly Investigating Officer submitted the charge-sheet dated 18.09.2021. Perusal of charge-sheet goes to show as many as eleven witnesses have been mentioned therein. Statements of all the witnesses have not been brought on record. As such, it cannot be said at this stage that prosecution case is false or there is no material to support the prosecution story.

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With regard to the nature of the summoning order, which is required to be passed by court below after taking cognizance upon police report, learned A.G.A. has referred to paragraph 37 of judgement of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499. For ready reference same is reproduced herein under:

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"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another (2012) 11 SCC 465]"

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On the aforesaid premise, the learned A.G.A. submits that no interference is required by this Court in present application under Section under Section 482 Cr.P.C.

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When confronted with above, learned counsel for applicants could not over come the same.

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In view of above, present application fails and is liable to be dismissed by this Court.

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It is accordingly dismissed.

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Since applicants 6, 7 and 8 are ladies, therefore, by virtue of proviso to Section 437 Cr.P.C., it is provided that in case applicants 6, 7 and 8 appear before court below and file their applications for bail. Court below shall decide their bail applications on the same day.

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Order Date :- 5.7.2022 YK

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Digitally signed by YASHWANT KUMAR Date: 2022.07.07 10:13:39 IST Reason: Location: High Court of Judicature at Allahabad

Rafiq Ali and 7 Others v. State of U.P.and Another

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Rafiq Ali and 7 Others v. State of U.P.and Another

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