Amit Kumar Singh @ Amit Singh v. State of U.P. Thru. Its Secy. Home Deptt. Lucknow and Another

Allahabad HC19 Feb 2024A482/1455/2024

Case brief

AI extract

What is this about?

The Hon'ble Court issued notice to opposing parties in an application u/s 482 Cr.P.C. seeking quashing of a summoning order. It observed that the complainant is a public servant acting without permission under s.202 Cr.P.C. and noted lack of sanction under s.197 Cr.P.C., but did not finally dispose of the matter.

What the court decided

AI extract

Amit Kumar Singh @ Amit Singh vs State of U.P. Thru. Its… — Quashing and FIR | Allahabad HC (2024)

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 1455 of 2024

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Applicant :- Amit Kumar Singh @ Amit Singh Opposite Party :- State Of U.P. Thru. Its Secy. Home Deptt. Lucknow And Another Counsel for Applicant :- Sukh Deo Singh,Paritosh Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Sukh Deo Singh, learned counsel for the petitioner and Sri Aatreya Tripathi, learned AGA for State.

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Issue notice to opposite party no. 2 returnable at an early date.

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Steps within a week.

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Office to proceed accordingly.

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By means of this petition the petitioner have prayed following relief :

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"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash and set aside the impugned cognizance / summoning order dated 19/01/2023 passed by Learned Additional Civil Judge (Junior Division)-VI/Judicial Magistrate, Faizabad, in Criminal Case No. 256/2019, "Virendra Singh. Vs. Amit Singh," under Sections 384 IPC, as contained in Annexure-1 to this Writ Petition.

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To stay the proceeding in Criminal Case No. 256/2019, "Virendra Singh. Vs. Amit Singh.", under Sections 384 IPC pending before Learned Additional Civil Judge (Junior Division)-VI/Judicial Magistrate, Faizabad, during the pendency of this Petition before this Hon'ble Court in the interest of justice."

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Learned counsel for the petitioner has stated that the respondent no. 2 has moved an application under section 156 (3) Cr.P.C dated 28/03/2019 against the Petitioner for alleged incident dated 10/02/2019. As per application dated 28/03/2019 the Petitioner arrested the respondent No. 2 on 10/02/2019 with respect to FIR No. 151/2018, under sections 386/506 IPC, P.S. Khandasa, District Faizabad. It is alleged that at the time of arrest the respondent No. 2 was in possession of a Vivo mobile bearing mobile number 9621142935 RMI number 86620103185345 and Rs. 19,000/-in cash. It is further alleged that the Petitioner did not return aforesaid money and mobile to the Respondent No. 2 or his family. Detailed prosecution story is narrated in application dated 28/03/2019.

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The aforesaid application has been treated as a complaint wherein after recording of statement u/s 200 and 202 Cr.P.C. the petitioner has been summoned. Learned counsel for the petitioner has further submitted that the statement u/s 200 and 202 Cr.P.C. has been recorded by the court concerned of two real brothers, one opposite party no. 2 and another is his brother. Further, except the aforesaid statement of both the brothers there is no material against the petitioner so as to substantiate the allegation of opposite party no. 2.

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Attention has been drawn towards the factum of Apex court in re: D. Devaraja vs. Owais Sabeer Hussain passed in Criminal AppealNo. 458 of 2020 (Arising out of SLP (Crl.) No. 1882 of 2018) dated 18.6.2020 whereby the Apex Court has held that at the time of taking cognizance of the complaint which has been lodged against the public servant, the relevant fact of sanction u/s 197 Cr.P.C. must be looked into by the court concerned.

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Learned counsel for the petitioner has submitted that in para 71 of the aforesaid judgment the Apex Court has observed that there must be nexus between the alleged act of Public Servant and his official duty and para 80 of the aforesaid judgment the Apex Court has held that at the time of taking cognizance of the complaint learned trial court must ensure as to whether sanction u/s 197 Cr.P.C. has been obtained or not. Para 71 and 80 Cr.P.C. reads as under :

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"71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the Act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government-sanction for initiation of criminal action against him.

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80. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge."

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In the present case the petitioner is a police officer and when he arrested the opposite party no. 2 on 10.2.2019, thereafter having ulterior motive and extraneous design lodged false and misconceived complaint against the petitioner u/s 156(3) Cr.P.C. on 28.3.2019 making allegation that the petitioner has snatched the mobile of the opposite party and a sum of Rs. 19,000/-. He has further submitted that till date the sanction of the prosecution has not been granted by the

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competent authority in terms of section 197 Cr.P.C.

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The matter requires consideration.

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Let the counter affidavit be filed within four weeks, rejoinder affidavit may be filed in two weeks thereafter.

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List this case in the week commencing 8.4.2024.

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Till the next date of listing no coercive action shall be taken against the petitioner pursuant to the impugned cognizance / summoning order dated 19.1.2023 (supra).

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(Rajesh Singh Chauhan, J.)

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Order Date :- 19.2.2024 Om

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Digitally signed by :- OM PRAKASH MISHRA High Court of Judicature at Allahabad, Lucknow Bench

Amit Kumar Singh @ Amit Singh v. State of U.P. Thru. Its Secy. Home Deptt. Lucknow and Another

Case brief

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Amit Kumar Singh @ Amit Singh v. State of U.P. Thru. Its Secy. Home Deptt. Lucknow and Another

Case brief

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