Disposed

Mohd Ashraf Ali @ Bandar v. State of U.P. and Another

Allahabad HC17 Oct 2024A482/34649/2024

Case brief

AI extract

What is this about?

Applicant summoned under Section 354 IPC sought quashing of criminal proceedings via Section 482 CrPC application, arguing CCTV footage did not show him. The High Court declined to quash and directed him to file a Section 227 CrPC discharge application within two weeks, to be decided per Supreme Court guidance, with proceedings stayed meanwhile.

What did the court decide?

Application disposed with direction to file Section 227 CrPC discharge application within two weeks; proceedings stayed until its disposal.

Mohd Ashraf Ali @ Bandar vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:194452

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Court No. - 72

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Case :- APPLICATION U/S 482 No. - 34649 of 2024

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Applicant :- Mohd Ashraf Ali @ Bandar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Gaurav Tiwari,Jwala Singh,Vikram Singh

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Counsel for Opposite Party :- Gaurav Kakkar,G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Gaurav Tiwari, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Gaurav Kakkar, the learned counsel representing first informant/opposite party-2.

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Perused the record.

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Applicant-Mohd Ashraf Ali @ Bandar has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-

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"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the instant application and set aside the impugned cognizance and summoning order dated 9.8.2024 passed by Additional Chief Judicial Magistrate, Court No. 2, Allahabad whereby the applicant has been summoned under Section 354 I.P.C. Police Station – Shivkuti, District Allahabad in Case No. 3064 of 2024 (State vs. Abdul Rahman and others) and the impugned Police Report dated 18-12-2023 arising out of Case Crime No. 177 of 2022 under Section 147, 148, 324, 354, 336, 427, 307, 325 & 452 I.P.C. Police Station Shivkuti, District Allahabad pending before the Additional Chief Judicial Magistrate, Court No. 2, Allahabad.

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And may further stay the effect, operation and execution of the impugned cognizance and summoning order dated 09.08.2024 passed by Additional Chief Judicial Magistrate, Court No. 2, Allahabad whereby the applicant has been summoned under section 354 I.P.C. Police Station – Shivkuti, District Allahabad in Case No. 3064 of 2024 (State vs. Abdul Rahman & others) and the impugned Police Report dated 18-12-2023 arising out of Case Crime No. 177 of 2022 under section 147, 148, 324, 354, 336, 427, 307, 325 & 452 I.P.C. Police Station Shivkuti, District Allahabad pending before the Additional Chief Judicial Magistrate, Court No. 2, Allahabad and the entire criminal proceedings, during the pendency of the present Criminal Application before this Hon'ble Court.

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And/or pass such other and further order as this Hon'ble Court may deem it

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fit and proper in the present circumstances of the case, otherwise the applicant shall suffer irreparable loss and injury."

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Learned counsel for the applicant submits that the occurrence giving rise to the present criminal proceeding is alleged to have occurred 10.7.2022. The FIR in respect of the same was lodged on 11.7.2022. However, the applicant has not been nominated as a named accused in the FIR. The statement of the first informant was recorded under Section 161 Cr.P.c., wherein also the name of the applicant did not surface. The name of the applicant came to surface for the first time in the statement of first informant under Section 164 Cr.P.C., wherein, the role of catching hold has been assigned to the applicant. However, according to the learned counsel for applicant, the implication of the applicant in the concerned case crime number is false, inasmuch as, it is an admitted case of the parties that there is a C.C.T.V. footage of the occurrence in question, however, the applicant is not visible in the C.C.T.V. footage.

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On the above premise, the learned counsel for applicant contends that the present case is a case of no evidence insofar as it relates to present applicant.

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Placing reliance upon the judgment of Supreme Court in R.P. Kapur VS. State of Punjab, 1960 SCC OnLine SC 21, the learned counsel for the applicant submits that the impugned criminal proceedings are, therefore, unsustainable in law and fact. Consequently, the same are liable to be quashed insofar as they relates to the present applicant.

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Per contra, the learned A.G.A. representing State-opposite party no-1 and Mr. Gaurav Kakkar, the learned counsel representing first informant/opposite party-2 have opposed the present application. They submit that in view of the submissions urged by the learned counsel for applicant, remedy lies to the applicant to seek discharge before the court below itself in terms of Section 227 Cr.P.C. As such, no interference is warranted by this Court in present application.

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Having heard the learned counsel for applicant, the learned A.G.A. for State and learned counsel representing first informant/opposite party-2 and upon perusal of the record, this Court finds that no useful purpose shall be served in keeping this application pending.

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Accordingly this application is disposed of finally with a

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direction to the applicant to approach Court below by moving a discharge application in terms of Section 227 Cr.P.C. along with a certified copy of this order within a period of two weeks from today. In case, such a discharge application is filed by applicant before Court below, then Court below shall thereafter proceed to decide the discharge application filed by the applicant in accordance with the law laid down by Apex Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720 , by passing a reasoned and speaking order within a period of four weeks, provided there is no other legal impediment.

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It goes without saying that till the disposal of discharge application as directed above, no further action shall be taken against the applicant by the court below.

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Order Date :- 11.12.2024 Brijesh

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

Mohd Ashraf Ali @ Bandar v. State of U.P. and Another

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Mohd Ashraf Ali @ Bandar v. State of U.P. and Another

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