Dismissed

Akchay Kumar v. State of U.P. and Another

Allahabad HC13 Jan 2023A482/1409/2023

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 CrPC seeking quashing of an order taking cognizance of an offence. The court held no illegality existed as the Magistrate relied on the complaint affidavit within the report's scope. The petition was dismissed, though the applicant was granted time to seek bail.

What did the court decide?

The petition dismissed; accused granted 10 days to apply for anticipatory or regular bail before the trial court.

Akchay Kumar Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2023)

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Court No. - 87

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Case :- APPLICATION U/S 482 No. - 1409 of 2023

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Applicant :- Akchay Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bhriguram Ji,Ashutosh Kumar Nishad,Sandip Kumar,Shashi Shekhar Maurya,Shivam Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Kumar Singh,J.

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1. Heard.

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By way of this petition under Section 482 CrPC, the accusedpetitioner seeks quashing of the order dated 26.08.2016 passed by the learned Sessions Judge, Farrukhabad in Misc. Case No.118 of 2013 (Indresh Vs. Achay Kumar). The said case has now been transferred and is pending in the Court of Additional Sessions Judge/Special Judge, Anti-Corruption, Court No. 9, Lucknow.

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The accused-petitioner was posted as Area Lekhpal. An FIR against the accused-petitioner came to be registered on an application filed by respondent no. 1-Indresh Singh, son of Shanker Singh under Section 156(3) CrPC, alleging therein that the accused-petitioner demanded Rs.3 Lakhs from him for keeping the land of Gata No. 15 near other gata numbers of the complainant. It is further said that the accused-petitioner accepted Rs. 2,40,000/- from the complainant for the said purpose. However, neither the accused-petitioner did the promised work nor returned the money.

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Learned Magistrate passed an order, directing for registration of the FIR. On direction of the learned Magistrate the FIR came to be registered as Crime No.0353 of 2013 under Section 3/5 of the Prevention of Corruption Act, 1988 read with Section 406 IPC at Police Station Fatehgarh, District Farrukhabad. Investigating officer, however, filed a closure/final report in favour of the accused-petitioner on the basis of affidavits of witnesses, without verifying the contents of the affidavits from the concerned persons under Section 161 CrPC.

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The Superintendent of Police directed for further investigation, however, investigating officer filed again closure report on the same date. Against the said closure/final report, the complainant filed the protest petition and considering the illegality in the investigation, facts and circumstances of the case mentioned in the protest petition supported by an affidavit of the complainant, the learned Magistrate vide the impugned

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order took cognizance and directed for treating the case as State Case.

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Learned counsel for the accused-petitioner submits that the learned Magistrate has considered the affidavit and has not considered the contents of the final report. It is further submitted that it is not under the law to consider the material outside the report under Section 173 (2) CrPC while taking cognizance on the closure report.

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On the other hand, Mr. Ratnendu Kumar Singh, learned Additional Government Advocate, has submitted that the impugned order is of the year 2016 and the accused-petitioner has approached this Court in the year 2023 and this petition is, therefore, liable to be dismissed on the ground of delay and latches. It is further submitted that the learned Magistrate after taking note of the gross illegality committed in filing the closure report has considered the complaint and affidavit filed in support thereof, but it does not mean that he has considered the material outside the final report/complaint.

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I have considered the submission advanced on behalf of the parties and perused the entire file.

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If a closure report is filed and the Magistrate finds that the offence is made out, it is well within his power/jurisdiction to take cognizance under Section 190(1) CrPC on the same report for the offence, which in the opinion of the Magistrate/Court, is made out. From the perusal of the impugned order, it does not appear that the learned Magistrate has considered any material outside the complaint and final/closure report. The complaint was supported by the affidavit and, therefore, it cannot be said that the learned Magistrate has considered the material outside the complaint.

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In view thereof, I do not find any illegality or irregularity in the order impugned herein. Thus, the present petition has no merit and the same is hereby dismissed as such. However, the accused-petitioner is granted 10 days time from today to appear before the trial Court and apply for anticipatory bail/regular bail, as the case may be. In the event such an application is filed, the same shall be considered and decided expeditiously, keeping in mind that the offence, for which cognizance has been taken, entails punishment upto 7 years.

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[D.K.SINGH, J.]

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Order Date :- 13.1.2023 MVS/-

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Digitally signed by :- MANOJ VIKRAM SINGH CHAUHAN High Court of Judicature at Allahabad

Akchay Kumar v. State of U.P. and Another

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Akchay Kumar v. State of U.P. and Another

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