Disposed

Mohammad Idris (as Per Prosecution Mohammad Idris Qureshi) v. State of U.P. Thru. Prin. Secy. Home, Lko.

Allahabad HC5 Mar 2024A482/2153/2024

Case brief

AI extract

What is this about?

Clarification application under Section 482 CrPC seeking compliance with a prior stay order. The court held that electronic evidence must be supplied to the accused per Section 207 CrPC, found religion-based amicus curiae appointment discriminatory and judicial misconduct, extended the stay for the applicant, and directed the trial judge to file a personal affidavit and appear with records.

What did the court decide?

Stay of impugned trial-court orders continued for the applicant; trial halted as regards applicant till further orders; trial judge directed to file personal affidavit and appear with records on 15.04

Mohammad Idris (as Per Prosecution Mohammad… — Criminal Trial and Appeal | Allahabad HC (2024)

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Court No. - 27

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Case :- APPLICATION U/S 482 No. - 2153 of 2024 Applicant :- Mohammad Idris (As Per Prosecution Mohammad Idris Qureshi)

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Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Applicant :- Mohemmed Amir Naqvi,Abhishek Singh,Ajeet Pratap Singh,Zia Ul Qayuim

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Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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(Order on Criminal Misc. Application No.IA/2/2024; Application for clarification of Order)

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Heard Shri Abhishek Singh alongwith Shri Zia Ul Qayuim, learned Counsels for the applicant, Shri Shiv Nath Tilhari, learned A.G.A-I for the State-opposite party and perused the material placed on record.

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The present application has been moved on behalf of the applicant, namely-Mohammad Idris (As Per Prosecution Mohammad Idris Qureshi) seeking clarification of the order dated 05.03.2024 passed by this Court.

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This Court vide a detailed order dated 05.03.2024 stayed the effect and operation of orders dated 19.01.2024 and 20.01.2024 passed by the trial court, which were impugned by the applicant in the present Application U/S 482 Cr.P.C. The orders dated 19.01.2024 and 20.01.2024 are reproduced hereinunder:-

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" fnukad& 19-01-2024

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i=koyh is'k gqbZA iqdkjk x;kA vfHk;qDr eUuw ds fo}ku vf/koDrk dks NksM+dj 'ks"k vfHk;qDrx.k ds fo}ku vf/koDrk mifLFkr gSA fo}ku vf/koDrkx.k Jh eks0 vkfej udoh ,oa Jh izkU'kw vxzoky ds }kjk ,d izkFkZuk i= bl vk'k; dk fn;k x;k gS fd vkjksi U;k;ky; }kjk cuk;k tk pqdk gS rFkk i=koyh lk{; gsrq vkt fnukad&9-01-2024 dks fu;r gS fdUrq U;k;ky; }kjk i=koyh esa mfYYkf[kr bysDVªkWfud nLrkost dh dkih vfHk;qDrx.k dks vHkh rd miyC/k ugha djk;h x;h gSA vr% /kkjk&207] 208 na0iz0la0 ds varxZr bysDVªkWfud nLrkost dh dkih miyC/k djk;s tkus dh d`ik djsaA ;g Hkh dFku fd;k x;k fd ih0MCY;w&3 jkeka'k f}osnh us ;g dsl bysDVªkWfud lk{; ls LFkkfir gksus dh ckr dgh ysfdu og bysDVªkWfud lk{; vfHk;qDrx.k dks udy esa ugha nh xbZ gSA vr% mldh udy fnyok nh tk;sA

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fo}ku yksd vfHk;kstd ,0Vh0,l0 Jh ukxsUnz xksLokeh us fojks/k djrs gq, dFku fd;k fd vfHk;kstu lk{kh U;k;ky; esa mifLFkr gS] dsoy foyfEcr djus ds vk'k; ls mDr izkFkZuk i= izLrqr fd;k x;k gSA vfHk;qDrx.k dks lHkh udysa /kkjk&207 na0iz0la0 ds Lrj ij U;k;ky; }kjk nh tk pqdh gSA muds }kjk ;g Hkh dFku fd;k x;k fd tks Hkh bysDVªkWfud lk{; bl lk{kh }kjk MkmuyksM fd;k x;k gS og ;w0vkj0,y0 ds vksisu lkslZ ij miyC/k gS] ftldk mYYks[k lh0Mh0 esa gS] ftldh dkih vfHk;qDrx.kk dks nh tk pqdh gSA mDr vksisu lkslZ ls vfHk;qDrx.k dHkh Hkh vkuykbu ns[k ldrs gSaA izkFkZuk i= nqHkkZoukiw.kZ gS] vr% [kkfjt dj fn;k tk;sA

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lquk rFkk i=koyh dk lE;d voyksdu fd;kA

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voyksdu ds mijkUr U;k;ky; dk fopkj gS fd lHkh udyksa ds fn;s tkus dk mYYks[k vkSj izkIr fd;s tkus dk mYYks[k vkWMZj 'khV ij vfHk;qDr o muds fo}ku vf/koDrk ds gLrk{kj ls iq"V gks jgk gSA ,slh n'kk esa lk{kh ds mifLFkr gksus ij ftjg u djuk rFkk udy dh ekax djuk ek= okn dks foyfEcr djuk gSA ;gka ;g Hkh mYYks[k fd;k tkuk lqlaxr gksxk fd xokg U;k;ky; le; ij yxHkx 10%30 AM cts ftjg gsrq mifLFkr gks x;k Fkk rFkk iqdkj yxk;s tkus ij Hkh dksbZ fo}ku vf/koDrk ftjg ds fy, mifLFkr ugha gq,A iqu% le; 12%30 PM cts fo}ku vf/koDrk Jh eks0 vkfej udoh mifLFkr gq, rFkk muds }kjk dgk x;k fd dqN ftjg vHkh dj ywaxk dqN ftjg NksM+dj chp esa uekt i<+Uks pys tk;saxs D;ksafd vkt tqek gSA U;k;ky; }kjk bl ij mUgsa ;g crk;k x;k fd U;kf;d dk;Z NksM+dj chp esa uekt i<+us dh vuqefr fn;k tkuk mfpr ugha gksxkA ,slk gh dFku vfHk;qDr jkgqy Hkksyk ds fo}ku vf/koDrk Jh ft;kmy ftykuh ds }kjk Hkh fd;k x;k fd mUgsa Hkh uekt i<+us ckgj tkuk gSA bl ij dqN vfHk;qDrx.k ds vf/koDrk tks fgUnw gS] muesa ls fo}ku vf/koDrk Jh eqdqy tks'kh us dgk fd os ftjg djus tk jgs gSa ijUrq ckn esa mUgksaus dgk fd oks ftjg ugha djsaxs rFkk ,d izkFkZuki= udyksa ds fy, nsaxs ijUrq muds }kjk dksbZ izkFkZuk i= ugha fn;k x;kA ftu fo}ku vf/koDrkx.k ds }kjk izkFkZuk i= fn;s Hkh x;s gSa os yap ds ckn le; 02%30&03%00 cts fn;s x;sA

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bl izdkj ;su&dsu izdkjs.k bl ftjg dh i=koyh esa vkt U;k;ky; dk dherh le; cckZn fd;k x;k gSA ;g izdj.k voS/k /kekZUrj.k ls lEcfU/kr vfHk;qDrx.k ds foPkkj.k ds fy, yfEcr gS] ftlesa fnu&izfrfnu lquokbZ dk vkns'k ikfjr fd;k x;k gSA U;k;ky; dks vk'kadk gS fd ,sls ;fn Hkfo"; dh frfFk;ksa ij ftjg u djds fo}ku vf/koDrkx.k chp esa uekt i<+Uks ds fy, U;k;ky; d{k NksM+dj ckgj tk;k djsaxs rks fopkj.k iwjk ugha gks ik;sxk vkSj blesa ck/kk,a iM+rh jgsxhA lHkh fo}ku vf/koDrkx.k dks ;g /;ku j[kuk pkfg, fd dk;Z gh iwtk gS rFkk vius U;kf;d drZO; dks lEEkku nsuk pkfg,A ,slh n'kk esa U;k;ky; dk fopkj gS fd ftu&ftu vfHk;qDrx.k dh iSjoh eqfLye vf/koDrkvksa ds }kjk dh tk jgh gS] mUk&mu vfHk;qDrx.k dks vius }kjk fu;qDr fd;s x;s fo}ku vf/koDrk ds lkFk&lkFk U;k;ky; dh lgk;rk ds fy, ,ekbdl~ D;wjh Hkh miyC/k djok fn;k tk;sA ftlls ;fn muds eqfLye vf/koDrk ftjg NksM+dj uekt i<+us ckgj pys tk;s rks ,ekbdl D;wjh ds }kjk ftjg fuckZ/k xfr ls pyrk jgsA vr% fuEu vkns'k fd;k tkrk gS&

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vkns'k

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izkFkZuk i= fnukafdr&19-01-2024 }kjk Jh eks0 vkfej udoh ,oa Jh izkU'kw vxzoky okLrs udy [kkfjt fd;k tkrk gSA Hkfo"; esa tks Hkh izkFkZuki= fn;s tk;sa] os bl U;k;ky; esa izdh.kZ izkFkZuki= izLrqr djus ds fu/kkZfjr le;kUrxZr fn;s tk;saA bl i=koyh esa ftu&ftu vfHk;qDrx.k ds fo}ku vf/koDrk eqfLye gSa] muds lkFk&lkFk ,ekbdl D;wjh Hkh fu;qDr dj fn;k tk;s] ftlls eqfLye vf/koDrkx.k ds U;k;ky; NksM+dj chp esa uekt ds fy, tkus ij mDr ftjg fo}ku ,ekbdl D;wjh ds }kjk gksrh jgs ,oa U;kf;d dk;Z esa dksbZ ck/kk u iM+sA okLrs ftjg i=koyh fnukad&20-01-2024 dks is'k gksA

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g0 viBuh; foosdkuUn 'kj.k f=ikBh fo'ks"k U;k;k/kh'k ,u0vkbZ0,0@,0Vh0,l0] y[kuÅA

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fnukad&20-01-2024

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i=koyh izLrqr gqbZA iqdkjk x;kA lk{kh ih0MCY;w&3 jkeka'k f}osnh U;k;ky; esa ftjg ds fy, mifLFkr gSA dy fnukad&19-01-2024 dks bl lk{kh ds mifLFkr gksus ds ckotwn Hkh lk{kh dh ftjg ugha dh xbZ Fkh] ftlds ckjs esa vkns'k ikfjr fd;k x;k Fkk fd dfri; fo}ku vf/koDrk ds }kjk izkFkZuk i= nsus ds vk/kkj ij ftjg Vky nh xbZ rFkk dqN fo}ku vf/koDrk tks eqfLye leqnk; ls gS muds }kjk tqesa dh uekt ds vk/kkj ij lk{kh dh ftjg ugha dh xbZ Fkh rFkk os vf/koDrk U;k;ky; NksM+dj uekt i<+us pys x;s Fks] ftlls vfHk;qDrx.k odkyrukek gksrs gq, Hkh] lEcfU/kr fo}ku vf/koDrk ls fcuk iSjoh ds U;k;ky; esa jg x;s FksA /kkjk&304 na0iz0la0 ;g izko/kku djrh gS fd ;fn l= U;k;ky; ds fopkj.k esa dksbZ vfHk;qDr fdlh vf/koDrk ls fcuk izfrfuf/kRo ds jg tkrk gS rks mlds fy, jkT; ds [kpsZ ij vf/koDrk miyC/k djk fn;k tk;sxkA orZeku ekeys esa foxr vkns'k fnukad&19-01-2024 ds vuqdze esa vfHk;qDr eUuw ;kno dh iSjoh dqekj vk'kek bTtr ds lkFk&lkFk ofj"B vf/koDrk Jh jek'kadj f}osnh ,fedl D;wjh }kjk dh tk;sxh rFkk vfHk;qDr bjQku 'ks[k dh iSjoh eks0 Qqjdku ds lkFk&lkFk muds vuqifLFkr jgus ;k uekt i<+us tkus dh fLFkfr esa Jh jke ukjk;u frokjh ofj"B vf/koDrk ds }kjk dh tk;sxhA blh izdkj eks0 bnjh'k dqjS'kh o dyhe fln~nhdh vfHk;qDrx.k ds fo}ku vf/koDrk eks0 vkfej udoh ds vuqifLFkr jgus ;k uekt i<+us tkus dh n'kk esa ofj"B vf/koDrk Jherh fdju [kUuk ds }kjk iSjoh dh tk;sxhA

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vkt vfHk;qDrx.k dkS'kj vkye] izlkn jkes'oj dkojs] /khjt xksfoUn jko] Hkwfiz;ks cUnks o Mk0 Qjkt ds fo}ku vf/koDrk Jh vfHk"ksd jatu ds }kjk izkFkZuk i= fn;k x;k fd vfHk;kstu lk{kh la&3 jkeka'k f}osnh us viuh eq[; ijh{kk esa ftu bysDVªkWfud nLrkostksa dks U;k;ky; esa nkf[ky fd;s tkus dk lk{; fn;k gS] eq[; ijh{kk ds nkSjku mDr ohfM;ksa dks U;k;ky; esa pykdj fn[kk;k ugha x;k gS rFkk mDr ohfM;ks best ,oa baVjO;w dk lE;d voyksdu fd;s cxSj ih0MCY;w&3 ls ftjg ugh dh tk ldrhA vr% bldh ftjg fMQj dj nh tk;sA U;k;ky; dk fopkj gS fd vfHk;qDrx.k dks fn;s x;s lh0Mh0 dh udy esa vksisu lkslZ dk mYYks[k fd;k tk pqdk gSA oSls Hkh ;g lk{kh ih0MCY;w&3 jkeka'k f}osnh ek= MsVk ,dlVSªD'ku dk lk{kh gS] ftlus foospd ds }kjk miyC/k djk;s x;s bysDVªkWfud MkD;wesUV~l ls MsVk ,DlVSªDV fd;k gSA xokg nks fnuksa ls yxkrkj vk jgk gS ,oa vkt Hkh mifLFkr gSA fo'oukFku cuke jkepUnzu uk;j 1997¼1½dzkbEl 239 dsjy esa fof/k izfrikfnr dh xbZ gS fd vfHk;qDr dks lk{kh dh ftjg fMQj djokus dk vf/kdkj izkIr ugha gSA bl dkj.k pwafd Jh vfHk"ksd jatu ds }kjk U;k;ky; ds le{k mifLFkr gksdj tkucw>dj xokg ls ftjg ugha dh tk ldh gSA vr% bl lk{kh ih0MCY;w&3 ls muds ftjg dk volj lekIr fd;k tkrk gSA 'ks"k fo}ku vf/koDrkx.k }kjk bl lk{kh ls ftjg iwjh dh xbZ gSA vfHk;qDr eUuw dh vksj ls muds vf/koDrk dh vuqifLFkfr ds dkj.k ,fedl D;wjh Jh jek'kadj f}osnh ds }kjk ftjg iwjh dh xbZA okLrs 'ks"k lk{; ih0MCY;w&4 i=koyh fnukad&22-01-2024 dks is'k gksA

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The order dated 05.03.2024 vide which this Court stayed the effect and operation of the orders dated 19.01.2024 and 20.01.2024 passed by the trial court is reproduced hereunder:-

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"1. Heard Shri Zia Ul Qayuim, learned Counsel for the applicant, Shri Shiv Nath Tilhari, learned A.G.A. for the State-opposite party and perused the material placed on record.

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2. The present application under Section 482 Cr.P.C. has been filed on behalf of the applicant, namely-Mohammad Idris seeking quashing of the order dated 19.01.2024, 20.01.2024 passed by learned Court of Additional District & Sessions Judge IIIrd/Special Judge, N.I.A-A.T.S., Lucknow in Sessions Trial No.1064 of 2022 under Sections 417, 120-B, 153-A, 153-B, 295-A, 298, 121-A and 123 I.P.C. and Section 3/5/8 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 against the applicant/accused and it is further prayed that to direct the aforesaid learned trial court to provide the copy of the electronic evidence demanded by the applicant vide application dated 19.01.2024 in compliance of the Section 207 Cr.P.C. and be further pleased to direct learned trial court not to impose an amicus curiae as an additional counsel upon the applicant/accused and be allowed to be defended by the counsel of his own choice only during the aforesaid trial in the interest of justice.

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3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to political rivalry. The applicant is not involved in any such type of activities, as alleged in the F.I.R. and the F.I.R. has been lodged only to defame the image of the applicants and their entire family in the society. He further submits that in the present case F.I.R. was lodged as F.I.R. No.9/2021 on 20.06.2021 at about 11:35 hours at Police Station-ATS-Gomti Nagar, District-Lucknow under Section 420, 120-B, 153-A, 153-B, 295-A and 511 I.P.C. and Section 3/5 of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 against two named accused persons namely, Mohammad Umar Gautam, Mufti Qazi Jahangi Alam Qasmi and Chairman Islamic Dawah Centre and one unknown person. He further submits that investigating agency during the course of investigation on the basis of suspicion whereby, the name of the applicant came into light from the statement of co-accused during their police custody pursuant to which the applicant was arrested and produced before the court on 26.09.2021 and a supplementary chargesheet was filed against him and four other accused persons on 16.12.2022. However, this Hon'ble Court was pleased to grant bail to the applicant vide order dated 07.12.2023 passed in Criminal Appeal No.2937 of 2023.

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4. Learned Counsel for the applicant further submits that learned trial court in order to commence the proceedings of the trial proceeded to comply the provisions of Section 207 Cr.P.C. and proposed a copy of the documents to be supplied to the applicant, on which the prosecution was about to rely upon but the same was never supplied to the applicant and he was never allowed to inspect any such document and charges were framed against the applicant and other co-accused persons on 20.12.2022 and thereafter the trial was directed to be proceeded on day to day basis vide order dated 04.01.2024 by the trial court.

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5. Learned counsel for the applicant has placed emphasis on Section 3 of the U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 which provides prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion and allurement, clearly specifying that conversion on the aforesaid grounds from one religion to another religion is prohibited. False allegations regarding allurement and undue influence for the purposes of mass conversion have been made.

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6. Learned counsel for the applicant has also placed emphasis on Section 4 of the U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 which is being quoted here-in-below:-

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"4. Person competent to lodge First Information Report-Any aggrieved person, his/her parents, brother, sister, or any other person who is related to him/her by blood, marriage or adoption may lodge a First Information Report of such conversion which contravenes the provisions of Section 3."

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7. Learned counsel for the applicant further submits that the embargo under Section 4 as to who can lodge an F.I.R. regarding an offence under Section 3 of the Act, 2021 is absolute. The complainant is neither the aggrieved person, nor his/her parents, brother, sister or any other person, who is related to him/her by blood, marriage or adoption is aggrieved person as provided under Section 4 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021. Complainant just being a personnel of AntiTerrorist Squad has lodged the instant first information report for gaining his career goodwill amongst other personnel of the force, although he is not competent to lodge the present FIR as per the provisions of Section 4 of the Act 2021.

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8. Learned counsel for the applicant further submits that the applicant is not involved in activity of attempt to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fradulent means and they have been falsely implicated in the present case and the complainant has no locus to lodge the present F.I.R. as provided under Section 4 of the Act, 2021, thus, he submits that the applicant has made out a case for some interim relief, therefore, some interim protection may be granted by this Court while issuing notices to the opposite parties.

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9. In view of the above, the matter requires consideration on fact and law both.

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10. Learned A.G.A. has accepted notice on behalf of Stateopposite party. He prays for and is granted four weeks' time to file counter affidavit. Two weeks' time thereafter shall be available to learned Counsel for the applicant for filing rejoinder affidavit.

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11. Accordingly, list/put up this case on 22.07.2024 before appropriate Bench.

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12. Till the next date of listing, the further proceedings in pursuance to the order dated 19.01.2024, 20.01.2024 passed by learned Court of Additional District & Sessions Judge IIIrd/Special Judge, N.I.A-A.T.S., Lucknow in Sessions Trial No.1064 of 2022 under Sections 417, 120-B, 153-A, 153-B, 295-A, 298, 121-A and 123 I.P.C. and Section 3/5/8 U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 shall be kept in abeyance so far it relates to the present applicant."

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Thereafter, the matter was listed before learned Special Judge, N.I.A/A.T.S., Lucknow on 11.03.2024 and the learned trial court has passed the following order:-

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"fnuk¡d&11-03-2024

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i=koyh is'k gqbZA iqdkjk x;kA vfHk;qDrx.k dkS'kj vkye] izlkn jkes'oj dk;js] /khjt xksfoUn jko txrki] Hkwfiz;ks cUnks vlZyku] eks0 mej xkSre o eUuw ;kno tfj, ohfM;ks dkWUQszflax mifLFkr gS rFkk vfHk;qDrx.k MkW0 Qjkt 'kkg] vCnqYyk mej] ljQjkt vyh tkQjh] eks0 lyhe] eks0 bnjh'k dqjS'kh] eks0 dyhe flnnhdh] jkgqy Hkksyk] lykgqnnhu tSuqunnhu 'ks[k] bjQku 'ks[k] eqQrh dkth tgk¡xhj dkleh o dq.kky v'kksd pkS/kjh O;fDrxr #i ls U;k;ky; ds le{k mifLFkr gSaA vkt i=koyh vkjksi ifjo/kZu ds fy, fu;r dh xbZ gSA blh chp vfHk;qDr eks0 bnjh'k dqjS'kh dh vksj ls ekuuh; mPp U;k;ky; }kjk izkFkZuki= varxZr /kkjk&482 la0& 2153@2024 esa ikfjr vkns'k fnukafdr&0503-2024 dh izfrfyfi izLrqr dj ;g vuqjks/k fd;k x;k gS fd i=koyh dh dk;Zokgh dks vfHk;qDr eks0 bnjh'k ds lEcU/k esa LFkfxr dj fn;k tk;sA fo}ku vf/koDrkx.k Jh eqdqy tks'kh ,oa Jh vkfej udoh us ;gh jk; O;Dr dh gS ijUrq LVsV dh vksj ls ,l0ih0vks0 Jh ukxsUnz xksLokeh us ;g rF; j[kk gS fd ekuuh; mPp U;k;ky; dh fMohtu csap us bl i=koyh esa fdzfeuy vihy la0&2338@2022 esa ikfjr vkns'k fnukafdr 16-12-2022 ds }kjk i=koyh dk fuLrkj.k 'kh?kz ,d o"kZ ds vanj djus dk vkns'k ikfjr fd;k gSA vr% ekuuh; mPp U;k;ky; us okn dh dk;Zokgh LFkfxr djus dk vkns'k ikfjr ugha fd;k gS oju~ vkns'k fnukad&19-01-2024 o 20-01-2024 ds vuqikyu esa fdlh dk;Zokgh dks vfxze fyfLVax frfFk fnukad&22-07-2024 rd fuyfEcr voLFkk esa j[kk gSA vr% bl ekeys esa vfHk;qDRk eks0 bnjh'k dqjS'kh ds fo#) Hkh fopkj.k dh dk;Zokgh djus esa dksbZ jksd ugha gSA

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eSus mHk; i{kksa ds fo}ku vf/koDrk dks lqu fy;k gS rFkk i=koyh dk ifj'khyu dj fy;k gS rFkk ekuuh; mPp U;k;ky; ds vkns'k fnukad&05-03-2024 dk Hkh llEeku voyksdu dj fy;k gSA mDr vkns'k ds iSjk&2 ls gh ;g LIk"V gS fd vfHk;qDr eks0 bnjh'k ds }kjk vkns'k fnukad&19-01-2024 o 20-01-2024 ds ek/;e ls tks U;k;ky; ls ckgj tkus ds nkSjku ,fedl D;wjh fu;qDr djus dk vkns'k fn;k Fkk mls fujLr djus rFkk viuh ilUn ds vf/koDrk ls izfrj{kk dk vf/kdkj pkgk Fkk rFkk /kkjk&207 n0iz0la0 esa tks udy fn;s tkus dk vkns'k fujLr dj fn;k x;k Fkk mldks Hkh vk{ksfir fd;k x;k FkkA blh dkj.k iSjk&12 esa vfHk;qDr eks0 bnjh'k dqjS'kh ds lECkU/k esa fnukad&19-01-2024 o 20-012024 ds vkns'k ds ifj.kkeLo#i gqbZ dk;Zokgh dks fuyfEcr voLFkk esa j[kus dk vkns'k ikfjr fd;k x;k gSA vr% mijksDRk vkns'k ds vuqikyu esa bl U;k;ky; }kjk fuEu vkns'k ikfjr fd;k tkrk gS&

¶40

vkns'k

¶41

ekuhu; mPp U;k;ky; ds bl vkns'k fnukad&05-03-2024 ds vuqikyu esa vfHk;qDr eks0 bnjh'k dqjS'kh ds lECkU/k esa mlds fo}ku vf/koDrk Jh vkfej udoh ds vuqifLFkr jgus ;k uekt i<+us tkus dh n'kk esa Jherh fdj.k [kUuk ds }kjk iSjoh djus dk tks vkns'k fd;k x;k Fkk ml vkns'k dk fdz;kUo;u fnukad&22-07-2024 rd fuyfEcr voLFkk esa j[kk tkrk gSA iwoZ dh Hkk¡fr fo}ku vf/koDrk Jh vkfej udoh] vfHk;qDr eks0 bnjh'k dqjS'kh dh iSjoh djrs jgsaxsA okn dh iwjh dk;Zokgh fuyfEcr ugha dh xbZ gS] bl vk/kkj ij ;g U;k;ky; iwoZ fu/kkZfjr vkjksi ifjo/kZu dh dk;Zokgh vkt ugha dj jgh gS] Hkfo"; dh fdlh vU; frfFk ij bl ij vkns'k ikfjr fd;k tk;sxk o vkjksi ifjof/kZr fd;k tk;sxkA ekuuh; mPp U;k;ky; ds vkns'k fnukad 16-12-2022 ds vuqlkj fopkj.k ,d o"kZ dh vof/k ds vUnj iwjk u gks ikus ds dkj.k vkSj le; dh izkFkZuk gsrq ekuuh; mPp U;k;ky; dks i= izsf"kr fd;k tk;sA vfHk;kstu 'ks"k lkf{k;ksa dks ijhf{kr djk;sA okLRks 'ks"k lk{; i=koyh fnukad&1203-2024 dks is'k gksA "

¶42

From bare perusal of the order dated 11.03.2024 it transpires that the learned trial court has only observed in its order that the Advocate who was earlier appearing on behalf of the accused shall continue to appear and argue on his behalf till 22.07.2024, which is the next date fixed in this Court but so far as the request made by the applicant vide his application dated 19.01.2024 under Section 207 Cr.P.C. wherein he has demanded a copy of the electronic evidence available against him, the trial court has not given any observation in its order dated 11.03.2024, thus, it appears that the learned trial court has misunderstood the detailed order dated 05.03.2024 passed by this Court and proceeded in a very arbitrary manner without analyzing the gravity of the order dated 05.03.2024 passed by this Court and unless and until the copy of the electronic evidence demanded by the applicant vide his application dated 19.01.2024 under Section 207 Cr.P.C. is not provided to the applicant, the trial court ought not to have proceeded with trial of the case, or must have given some observation in this regard but the trial court is silent.

¶43

It is further observed here that an electronic record produced for inspection of court is a documentary evidence under Section 3 of the Indian Evidence Act, 1872 and being an electronic document as envisaged by Section 2(1)(t) of the Information Technology Act, 2000 must be regarded as a "Document". Further, if the prosecution proposes to rely on it against the applicant, ordinarily, the applicant must be given a clone copy thereof as per the mandate of Section 207 Cr.P.C. to enable him to present an effective defense during trial. Section 3 of the Indian Evidence Act, 1872 and Section 207 Cr.P.C. are reproduced hereinunder:-

¶44

" Section 3 of the Indian Evidence Act, 1872.

¶45

3. Interpretation clause.—In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:

¶46

“Court”.—“Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.

¶47

“Fact”.—“Fact” means and includes— (1) any thing, state of things, or relation of things, capable of being perceived by the senses;

¶48

(2) any mental condition of which any person is conscious.

¶49

Illustrations

¶50

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

¶51

(b) That a man heard or saw something, is a fact.

¶52

(c) That a man said certain words, is a fact.

¶53

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

¶54

(e) That a man has a certain reputation, is a fact.

¶55

“Relevant”.—One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

¶56

“Facts in issue”.—The expression “facts in issue” means and includes—

¶57

any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

¶58

Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure3 , any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

¶59

Illustrations

¶60

A is accused of the murder of B.

¶61

At his trial the following facts may be in issue:—

¶62

that A caused B's death;

¶63

that A intended to cause B's death;

¶64

that A had received grave and sudden provocation from B;

¶65

that A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.

¶66

“Document”—“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

¶67

Illustrations

¶68

A writing is a document;

¶69

Words printed, lithographed or photographed are documents;

¶70

A map or plan is a document;

¶71

An inscription on a metal plate or stone is a document;

¶72

A caricature is a document.

¶73

“Evidence”.—“Evidence” means and includes—

¶74

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

¶75

such statements are called oral evidence;

¶76

(2) all documents [including electronic records] produced for the inspection of the Court;

¶77

such documents are called documentary evidence.

¶78

“Proved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

¶79

“Disproved”.—A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

¶80

“Not proved”.—A fact is said not to be proved when it is neither proved nor disproved.

¶81

Section 207 of Criminal Procedure Code, 1973

¶82

207. Supply to the accused of copy of police report and other documents.

¶83

-In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of post, a copy of each of the following:-

¶84

(i) the police report;

¶85

(ii) the first information report recorded under section 154;

¶86

(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there frorm any part in regard to which a request for exclusion has been made by the police officer under sub-section (6) of section 173;

¶87

(iv) the confessions and statements, if any, recorded under section 164;

¶88

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 :

¶89

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the

¶90

reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

¶91

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court."

¶92

Thus, it is crystal clear that all the documents including "Electronic Record" produced for the inspection of the court alongwith the police report and on which the prosecution proposes to use and rely against the accused/applicant must be furnished to the applicant as per the mandate of Section 207 Cr.P.C. The concomitant is that it must be furnished in a cloned copy.

¶93

It is a cardinal principal that a person tried of serious offence should be furnished with all the material and evidences in advance, on which the prosecution proposes to rely against the applicant during the trial. Any other view would not only impinge upon the statutory mandate contained in Cr.P.C. but also the right of the applicant to a fair trial enshrined in Article 21 of the Constitution of India.

¶94

Further, the Hon'ble Supreme Court in the case of Tarun Tyagi v. CBI reported in (2017) 4 SCC 490 has been pleased to observe in paragraph Nos.8 and 10, which are reproduced hereunder:-

¶95

"8. Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report under Section 173(5) of the Code. Such a compliance has to be made on the first date when the accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the accused with the copy thereof, the Magistrate can allow the accused to inspect it either personally or through pleader in the court.

¶96

10. It is clear from the above that CBI had seized some hard discs marked Q-2, 9 and 20 from the premises of the appellant which contained the source code of the data recovery software. The defence of the appellant is that this source code was exclusively prepared by him and was his property. On the other hand, case of the prosecution is that the recovered CDs are in fact same or similar to the software stolen in 2005. In a case like this, at the time of trial, the attempt on the part of the prosecution would be to show that the seized material, which contains the source code, is the property of the complainant. On the other hand, the appellant will try to

¶97

demonstrate otherwise and his attempt would be to show that the source code contained in those CDs is different from the source code of the complainant and the seized material contained the source code developed by the appellant. It is but obvious that in order to prove his defence, the copies of the seized CDs need to be supplied to the appellant. The right to get these copies is statutorily recognised under Section 207 of the Code, which is the hallmark of a fair trial that every document relied upon by the prosecution has to be supplied to the defence/accused at the time of supply of the charge-sheet to enable such an accused to demonstrate that no case is made out against him and also to enable him to prepare his cross-examination and defence strategy. There is no quarrel up to this point even by the prosecution. The only apprehension of the prosecution is that if the documents are supplied at this stage, the appellant may misuse the same."

¶98

Further, the Hon'ble Supreme Court in the case of V.K. Sasikal v. State reported in (2012) 9 SCC 771 and reiterated in Anokhilal vs. State of Madhya Pradesh reported in (2019) 20 SCC 196 has been pleased to observe as under:-

¶99

"25. In V.K. Sasikala v. State [V.K. Sasikala v. State, (2012) 9 SCC 771: (2013) 1 SCC (Cri) 1010] a caution was expressed by this Court as under:

¶100

“23.4. While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the wellentrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time."

¶101

26. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice."

¶102

It would also be relevant here to take note of the fact that the learned trial court in its order dated 19.01.2024 has also given its finding regarding the non presence of counsel for the applicant during the trial as they belong to certain religion and they often leave the court to offer prayers at the place of worship and in pursuance of that he has appointed the amicus curie to represent the applicant during the course of the trial against the wishes of the

¶103

applicant and other co-accused persons in the present case, who have appointed counsels of their choice and their religion on their behalf to represent themselves in the trial court, this shows clear discrimination on the part of the trial court on the basis of religion, which is clear violation of Fundamental Right enshrined in Article 15 of the Constitution of India. Article 15 of the Constitution of India is reproduced hereinunder:-

¶104

"1 5. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

¶105

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

¶106

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

¶107

(a) access to shops, public restaurants, hotels and places of public entertainment; or

¶108

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

¶109

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

¶110

[Editorial comment- The Constitution (First Amendment) Act, 1951, made several changes to the Fundamental Rights Part of the Indian constitution. It made it clear that the right to equality does not preclude passing laws that give special consideration to society’s most vulnerable groups.Article 15(3) was appropriately expanded to prevent any special provisions made by the State for the social, economic, or educational progression of any disadvantaged class of citizens from being contested based on discrimination. Also Refer Also refer]

¶111

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

¶112

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

¶113

[The Constitution (Ninety-third Amendment) Act, 2005, adjoined a clause to Article 15 stating that the state has the authority to establish certain specific Provisions concerning accommodations for the progress of any sociologically and academically disadvantaged

¶114

sectors of the society, as well as to the scheduled castes and scheduled tribes, with respect to their enrollment to academic institutions, including private academic institutions, whether assisted or unassisted by the state, except minority institutions. Also Refer]

¶115

(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

¶116

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

¶117

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

¶118

Explanation.—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

¶119

[Editorial Comment - Article 15 protects the citizens against various forms of discrimination based on religion and gender. The Constitution of India guarantees various rights to its citizens, including no discrimination on account of religion, race, caste, or place of birth. Article 15 restricts discrimination on the ground of:

¶120

Religion – It means that no person should be discriminated against on the basis of religion from accessing any public place or policy by the state or any group. "

¶121

Thus, if there were other grounds they ought to have been stated in the order of the trial court. It can be clearly inferred that the trial court had passed the order which is directly contrary to the terms of Article 15(1) as violating a specific constitutional prohibition. The learned Judge of the trial court has clearly discriminated one community only on the basis of religion.

¶122

It is further observed here that judicial misconduct comes in many forms and ethical standards address problematic actions, omissions and relationships that deplete public confidence. Common complaints of ethical misconduct include improper demeanour; failure to properly disqualify when the judge has a conflict of interest; engaging in ex parte communication and failure to execute their judicial duties in a timely fashion. Behavior outside of the courtroom can also be at issue. Judicial conduct oversight should not attempt to regulate purely personal aspect of judges life. However, a Judge

¶123

can commit misconduct by engaging in personal behavior that calls their judicial integrity into question.

¶124

This Court also finds it relevant to observe here that a judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.’ There can be no manner of doubt that a Judge must decide the case only on the basis of the facts on record and the law applicable to the case. If a Judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law.

¶125

In view of the above discussions and judgments referred above, this Court finds that the trial court has committed an error while perusing the order dated 05.03.2024 passed by this Court whereby this Court has passed a detailed order staying the effect and operation of the impugned orders in the present application filed under Section 482 Cr.P.C. and erroneously taken note of the said order in piece meal whereby he had recalled his order of appointment of amicus curie to represent the applicant during the course of the trial and has directed that the earlier counsel for the applicant will continue to represent and argue on behalf of the applicant during the course of the trial. It is further observed here that so far as the application moved by the applicant under Section 207 Cr.P.C. seeking copy of the electronic evidence proposed to be relied by the prosecution against him, the trial court has remained silent and did not provide a copy of the electronic evidence to the applicant, which is a mandatory provision under Section 207 Cr.P.C. read with Section 238 Cr.P.C. It is further observed here that even though an interim protection was granted by this Court vide order dated 05.03.2024, the trial court has proceeded with the trial ignoring the observations made by this Court in the said order against the present applicant. Thus, it appears that the trial court has failed to understand the tenor of the order passed by this Court

¶126

and did not comply with the order of this Court in full spirit and has proceeded with the trial, this shows the misconduct of the trial court.

¶127

Keeping in view the above facts and circumstances of the case and also taking note of the judgments referred above, this Court is of the view that the effect and operation of the orders dated 19.01.2024 and 20.01.2024 shall remain stayed in terms of the order dated 05.03.2024 passed by this Court and the trial court will not proceed further with the trial only in regard to the present applicant till further orders of this Court.

¶128

18. It is further observed here that in view of the discussions/observations and after perusal of the orders passed by the trial court, this Court fails to understand the basis and legal aspects on which the findings of the impugned orders were placed by the trial court and it is also relevant to take note of the fact that the trial court while passing the impugned orders had made certain observations regarding a particular community. This shows judicial misconduct, which breaks down the very fibre of what is necessary for a functional judiciary-citizens who believes their judges are fair and impartial. The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards. In holding them accountable for their behavior, judicial conduct review must be performed without invading the independence of judicial decision-making. Thus, the Additional District & Sessions Judge IIIrd/Special Judge, N.I.A-A.T.S., Lucknow is directed to file a personal affidavit explaining therein that under what circumstances, he had passed the orders dated 19.01.2024 and 20.01.2024 and why the order of this Court dated 05.03.2024 has been perused in a piece meal not been complied in full spirit.

¶129

On the next date of listing, the Additional District & Sessions Judge IIIrd/Special Judge, N.I.A-A.T.S., Lucknow shall remain present before this Court alongwith original records of the case and also the copy of the order dated 16.12.2022 reference of which was given by it in the order dated 11.03.2024 to assist this Court alongwith his personal affidavit.

¶130

This Court is aware about the direction issued by the Hon’ble Supreme Court of India by way of an Standard Operating Procedure (SOP) dated 03.01.2024 in respect of calling the government officials concerned in person before the Court and have interaction through video conferencing but in the present case it is not possible to peruse the entire record through video conferencing, thus, the personal appearance of the officer concerned is required alongwith record and his affidavit, as the officer concerned is posted at Lucknow.

¶131

Shri Shiv Nath Tilhari, learned A.G.A-I for the State-opposite party as well as learned Senior Registrar of this Court is directed to communicate this

¶132

order to Additional District & Sessions Judge IIIrd/Special Judge, N.I.AA.T.S., Lucknow for its necessary compliance, forthwith.

¶133

List/put up this case on 15.04.2024 at 3:30 P.M. before this Court for further orders.

¶134

Order Date :- 3.4.2024 Piyush/-

¶135

Digitally signed by :- PIYUSH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Mohammad Idris (as Per Prosecution Mohammad Idris Qureshi) v. State of U.P. Thru. Prin. Secy. Home, Lko.

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Mohammad Idris (as Per Prosecution Mohammad Idris Qureshi) v. State of U.P. Thru. Prin. Secy. Home, Lko.

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