Sayem Yazdani vs State of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. and Another

Court No. - 14

Case :- APPLICATION U/S 482 No. - 4198 of 2025

Applicant :- Sayem Yazdani Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Prabhat Kumar Mishra,Abdul Ahad,Jatin Raheja,Shobhit Harsh Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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The present application under Section 482 Cr.P.C./ 529 B.N.S.S. has been filed with the following prayers:

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"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this Application under 482 Cr.P.C. now U/s 528 BNSS, 2023 and quash the entire criminal proceedings of Crl. Misc. Case No. 5987/2025 (CNR No. UPLK040067302025), arising out of Case Crime No. 252/2023, (State Of U.P. Versus Fahad Yazdani and Ors.) pending in the Court of Additional Chief Judicial Magistrate, C.B.I.(A.P.), Lucknow, District Lucknow, Under Section 406,420 I.P.C., 1860, Police Station Mahanagar, District -Lucknow, so far as it relates to the applicant, in the interest of justice.

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It is further respectfully prayed that this Hon'ble Court may graciously be pleased to stay the operation and implementation of the summoning order dated 09.01.2025 passed by the Court of Additional Chief Judicial Magistrate, C.B.I (A.P.), Lucknow, District Lucknow, in Crl. Misc. Case No. 5987/2025 (CNR No. UPLK040067302025), arising out of Case Crime No. 252/2023, (State Of U.P. Versus Fahad Yazdani and Ors) pending in the Court of Additional Chief Judicial Magistrate, C.B.I.(A.P.), Lucknow, District Lucknow, Under Section 406,420 I.P.C., 1860, Police Station- Mahanagar, District Lucknow, passed against the applicant during pendency of this petition, in the interest of justice."

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Learned counsel for the applicants has submitted that an F.I.R. dated 28.10.2023 has been lodged by the Respondent No.2 against the applicant under Section 406/420 I.P.C. After investigation the chargesheet has also been filed by the police and in pursuance thereof the cognizance has been taken and

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summoning order has been passed.

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It is further submitted that Section 406 and 420 I.P.C. cannot go together, it is either offence under Section 406 or Section 420 I.P.C.

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In support of his submission, learned counsel for the applicants has relied upon the judgement of Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and another reported in 2024 10 SCC 690 , wherein it has been held that if it is a case of the complainant that the office of criminal breach of trust as defined under Section 405 I.P.C., punishable under Section 406 I.P.C., is committed by the accused in the same offence, it cannot be said that the accused has also committed offence as cheating as defined and explained in Section 450 I.P.C., punishable under Section 420 I.P.C.

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Learned trial court without considering said aspect, without application of mind, issued the summons against the applicants.

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Learned A.G.A. is unable to dispute the submissions made by the learned counsel for the applicants and the case law relied upon.

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In view of the submission made by the learned counsel for the applicants and the judgement of Hon'ble Supreme Court, the matter requires consideration.

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Issue notice to the Respondent No.2.

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Learned counsel for the applicant prays for and is granted seven working days' time for taking steps.

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List this case in the 1st week of July, 2025.

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Office is directed to submit the service report by the next date of listing.

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Till the next date of listing, the proceedings of the aforesaid case shall remain stayed.

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Order Date :- 20.5.2025 S. Kumar