Allowed

Ayaz and 2 Others v. State of U.P. and 3 Others

Allahabad HC28 Jan 2023A482/39018/2022

Case brief

AI extract

What is this about?

Under Section 482 Cr.P.C., the High Court held that a court cannot take cognizance under Section 190(1)(b) Cr.P.C. on a police report it has already rejected. An order rejecting a report but simultaneously taking cognizance was declared illegal, perverse, and quashed.

What did the court decide?

Impugned order dated 18.10.2022 by Special Judge (POCSO Act), Kaushambi was quashed and court below was directed to pass a fresh order.

Ayaz and 2 Others Vs State of U.P… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Court No. - 66

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Case :- APPLICATION U/S 482 No. - 39018 of 2022

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Applicant :- Ayaz And 2 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sharad Saran Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr.Sharad Saran Srivastava, the learned counsel for applicants and the learned A.G.A. for State.

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Challenge in this application under Section 482 Cr.P.C. is to the Order dated 18.10.2022 passed by Special Judge (POCSO Act), Kaushambi in F. R. No. 20 of 2022 ( Rabiya Begam Vs. Ayhaz and others) arising out of Case Crime No. 84 of 2022 under Sections 323, 504, 506, 354(B) I.P.C. and Sections 7/8 POCSO Act, P.S. Sarai Aqil, District-Kaushambi, whereby court below has rejected the police report submitted under Section 173 (2) Cr.P.C. (final report) dated 08.06.2022 and allowed the protest petition filed by first informant opposite party-2, Rubiya Begam and simultaneously took cognizance upon same and summoned the applicants.

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Record shows that in respect of an incident, which is alleged to have occurred on 23.02.2022, a delayed F.I.R. dated 12.03.2022, was lodged by first informant/opposite party-2, Rubiya Begam and was registered as Case Crime No. 0084 of 2022 under Sections 323, 504, 506, 354(B) I.P.C. and Sections 7/8 POCSO Act, P.S. Sarai Aqil, District-Kaushambi. In the aforesaid F.I.R., three persons namely Ayaz, Shakil and brotherin-law of Ayaz, have been nominated as named accused.

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After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case

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crime number in terms of Chapter XII Cr.P.C. He examined first informant/opposite party 2, the prosecutrix and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by him during course of investigation, Investigating Officer came to the conclusion that no offence as alleged against named accused is prima-facie established. He therefore submitted the police report under Section 173 (2) Cr.P.C. (final report) dated 08.06.2022. After submission of aforementioned police report (final report), first informant/opposite party-2 filed a protest petition dated 29.09.2022 against the aforementioned police report (final report).

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Court below considered the final report as well as the protest petition filed by first informant/opposite party-2 and vide order dated 18.10.2022 rejected the police report submitted under Section 173 (2) Cr.P.C. but simultaneously took congnizance upon the same.

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Learned counsel for applicants submits that once the police report submitted under Section 173 (2) Cr.P.C. (final report) dated 08.06.2022 was itself quashed by court below then there was no police report before court below to take cognizance in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. On the above premise, the learned counsel for applicant submits that order impugned in present application is manifestly illegal and therefore, liable to be quashed by this Court. The proper course for court below was to disapprove (Aswikar) the Police report and then take cognizance upon same.

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Per contra, the learned A.G.A for State has opposed the present application. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant.

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Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that court below has rejected the police report (final report) dated 08.06.2022 but simultaneously taken cognizance upon same in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. Since there was no police report before court below, therefore, court below could not have taken cognizance in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. on the police report vide order dated 18.10.2022 and summoned the applicant.

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The course of action open to the Magistrate was to disapprove (Aswikar) the report and proceed with the matter. This having not been done, the Impugned order is illegal and perverse. Consequently the same is liable to be quashed by this Court. As a result, order impugned passed by court below is manifestly illegal and liable to be dismissed.

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In view of discussion made above, present application succeeds and is liable to be allowed.

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It is accordingly allowed .

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Order impugned dated 18.10.2022 passed by Special Judge (POCSO Act), Kaushambi in F. R. No. 20 of 2022 ( Rabiya Begam Vs. Ayhaz and others) arising out of Case Crime No. 84 of 2022 under Sections 323, 504, 506, 354(B) I.P.C. and Sections 7/8 POCSO Act, P.S. Sarai Aqil, District-Kaushambi is hereby quashed.

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Court below shall pass a fresh order in the light of observations made herein above.

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Order Date :- 28.1.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Ayaz and 2 Others v. State of U.P. and 3 Others

Case brief

What is this about?

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Ayaz and 2 Others v. State of U.P. and 3 Others

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