Dismissed

Gussu@ Mohd Ezaz Sarvar Khan v. State of U.P. and Another

Allahabad HC4 Jul 2022A482/8216/2022

Case brief

AI extract

What is this about?

The High Court dismissed the application under Section 482 Cr.P.C. seeking quashing of criminal proceedings. The Court held that while the laches objection was satisfied, there was a prima facie case against the applicant as witnesses supported the FIR, and the trial court alone could appreciate evidence.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; criminal proceedings continued below.

Gussu@ Mohd Ezaz Sarvar Khan 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. - 8216 of 2022

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Applicant :- Gussu@ Mohd Ezaz Sarvar Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhay Krishn Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Abhay Krishn, learned counsel for applicant and learned A.G.A. for State.

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This application under section 482 Cr.P.C. has been filed challenging the charge sheet dated 12.10.2009, submitted in Case Crime No. 160 of 2009 (State of U.P. Vs. Sartaz Ahmad and Others) under Sections 294, 504, 506, 352 and 336 IPC, Police Staton- Utraon, District Allahabad, Cognizance Taking Order dated 30.1.2010, passed by Additional Chief Judicial Magistrate, Court No.4, Allahabad as well as entire proceedings of consequential proceedings of Case No. 214 of 2010 (State of U.P. Vs. Sartaz Ahmad and Others) under section 294, 504, 506, 352, 427, 336 IPC, P.S. Utraon, District, Allahabad, now pending in the Court of Additional Chief Judicial Magistrate, Court No.10, Allahabad.

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Record shows that in respect of an incident which is alleged to have occurred on 29.8.2009, a prompt F.I.R. dated 29.8.2009 was lodged by first informant and was registered as Case Crime No. Case Crime No. 160 of 2009 under Sections 294, 504, 506, 352 and 336 IPC, Police Staton- Utraon, District Allahabad. In the aforesaid F.I.R. In the aforesaid F.I.R. three persons namely, Sartaj Ahmad @ Bhaiyan, Gussu, Ajeemullah have been nominated as named accused.

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After registration of aforementioned F.I.R., 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. On the basis of above and other material collected by him during course of investigation, which is substantially adverse to applicant, Investigating Officer submitted charge-sheet dated 12.10.2009, whereby all the named accused have been charge sheeted under sections 294, 504, 506, 352, 427 and 336 IPC. After submission of aforementioned charge sheet, cognizance was taken upon same by Cognizance Taking Order dated 30.1.2020. Resultantly Criminal Case No. 214 of 2010 (State of U.P. Vs. Sartaz Ahmad

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and Others) came to be registered.

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At the very outset, learned A.G.A. raised a preliminary objection regarding maintainability of present application. He submits that charge sheet was submitted on 12.10.2009 and cognizance was taken on 10.2.2010. As such, present application is hopelessly barred by laches.

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Learned counsel for applicant has invited attention of Court to paragraph 5,6,7 and 8 of the affidavit and on basis thereof he submits that there is no deliberate negligence or laches in filing present application.

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Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of record, this Court finds that laches in filing present application have been sufficiently explained. Accordingly, laches in filing present application are ignored. Learned counsel for applicant contends that present criminal proceedings are not only malicious but also an abuse of process of Court. Same are liable to be quashed by this Court. It is then contended that the alleged incident has now taken place. Applicant is being prosecuted on account of ulterior motive.

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Per contra, the learned A.G.A. has opposed this application. He submits that after registration of F.I.R. dated 29.8.2009, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. who have supported the prosecution story as unfolded in F.I.R. As such, at this stage, it could not be said that there is no material to support the prosecution of applicant.

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Having heard learned counsel for applicants, learned A.G.A. for State and upon 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 applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.

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In view of above, application fails and is liable to be dismissed.

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It is accordingly dismissed.

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Order Date :- 4.7.2022/Arshad

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Digitally signed by ARSHAD MAHMOOD Date: 2022.07.04 18:43:06 IST Reason: Location: High Court of Judicature at Allahabad

Gussu@ Mohd Ezaz Sarvar Khan v. State of U.P. and Another

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Gussu@ Mohd Ezaz Sarvar Khan v. State of U.P. and Another

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