Zia- Ur- Rehman vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 40801 of 2025

Zia- Ur- Rehman

.....Applicant(s)

Versus State of U.P. and Another .....Opposite Party(s) Counsel for Applicant(s) : Mohd. Naushad Siddiqui, Saiyad Iqbal Ahmed Counsel for Opposite Party(s) : G.A. Court No. - 73

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HON'BLE SAMEER JAIN, J.

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At the very outset learned AGA submits that as entire material has already been annexed in the instant application, therefore, there is no need to call any counter affidavit and the instant application may be disposed of finally even at this stage.

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Heard Sri Mohd. Naushad Siddiqui, learned counsel for the applicant and Sri Arvind Kumar, learned AGA for the State.

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By way of instant application following prayer has been made:-

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"(i) Quash the charge sheet dated 03.09.2023 in Criminal proceeding Case No.1011/2024 (State vs. Yaseen Sambhali and others), arising out of Case Crime No.114/2023, under sections 188, 171-H of I.P.C. Police Station-Hayat Nagar District-Sambhal and proceeding in pursuance thereof, pending before Learned Civil Judge (S.D.)/M.P./M.L.A. Court/Additional Chief Judicial Magistrate, Sambhal at Chandausi.

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ii) Quash the cognizance/summoning order dated 13.03.2024 passed by Learned Civil Judge (S.D.)/M.P./M.L.A. Court/Additional Chief Judicial Magistrate, Sambhal at Chandausi Case No. 1011/2024(State Vs. Yaseen Sambhali and others), arising out of Case Crime No.114/2023, under sections 188, 171-H of I.P.C., Police Station-Hayat Nagar DistrictSambhal.

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(iii) Stay the further proceedings of Case No.1011/2024 (State vs. Yaseen

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Sambhali and others), arising out of Case Crime No.114/2023, under secitons 188, 171-H of I.P.C. Police Station-Hayat Nagar DistcitSambhal pending before Learned Civil Judge (S.D.)/M.P./M.L.A. Court/Additional Chief Judicial Magistrate, Sambhal at Chandausi, during pendency of the present criminal misc.application before this Hon'ble Court in respect of applicant.

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(iv) AND/OR may pass such other and furhter order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case; otherwise the applicant shall suffer irreparable loss and injury. "

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Learned counsel for the applicant submitted that FIR of the present case was lodged against the applicant and one another on 26.4.2023 for the offences punishable under Sections 188 and 171-H IPC and after investigation charge sheet has also been filed against the applicant under Sections 188 and 171-H IPC and after taking cognizance on the police report submitted under Section 173(2) Cr.P.C. court concerned proceeded with the matter and at present trial of the case is pending before the trial court as State case.

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He further submitted that as per provisions of Section 195(1)(a)(i) Cr.P.C., on the police report cognizance cannot be taken for the offence under Section 188 IPC. He further submitted that as far as offence under Section 171-H IPC is concerned, admittedly there is no allegation that applicant incurred any illegal payment in connection of an election, therefore, prima facie no offence under Section 171H IPC is made out. He next submits, even offence under Section 171H IPC is non-cognizable and therefore, learned court could not even take cognizance on police report even for offence under Section 171H IPC.

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He further submitted that therefore, entire proceeding pending against the applicant is liable to be quashed.

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Per contra, learned AGA however, opposed the prayer but fairly conceded that applicant is facing trial for the offences under Sections 188 and 171-H IPC on the basis of police report submitted under Section

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173(2) Cr.P.C. and as per Section 195(1)(a)(i) Cr.P.C., on the police report cognizance cannot be taken for the offence under Section 188 IPC. He further could not dispute, to constitute an offence under Section 171H IPC it is necessary that accused should incur expenses in connection of an election without any authorization of a candidate and there is no such allegation in the instant matter against the applicant.

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I have heard both the parties and perused the record of the case.

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From the record, it reflects, FIR was lodged against the applicant and one another under Sections 188 and 171-H IPC and after investigation, charge sheet has also been filed against the applicant for the offences under Sections 188 and 171-H IPC.

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Record also suggests that after submission of charge sheet under Section 173(2) Cr.P.C. court concerned took the cognizance and proceeded with the matter as State case and therefore applicant is facing trial of the present case for offence punishable under Section 188 and 171H IPC.

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According to Section 195(1)(a)(i) Cr.P.C., court cannot take cognizance on the police report submitted under Section 173(2) Cr.P.C. for the offence under Section 188 IPC and as offence under Section 171H IPC is non-cognizable, therefore, even court concerned can not take cognizance for this offence on the police report submitted under Section 173(2) Cr.P.C., therefore, it reflects, cognizance order dated 13.03.2024 is bad and proceedings of the case as State case initiated on the basis of police report submitted under Section 173(2) Cr.P.C. is also bad.

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Further, there is no allegation that applicant incurred expenses in connection with an election without consent or authorization of a candidate, therefore, even prima facie no offence under Section 171H IPC is made out as to constitute an offence under Section 171H IPC it is necessary that an accused must incur expenses in connection of an election.

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Therefore, from the discussion made above, cognizance order dated 13.03.2024 passed by the court concerned and proceeding pending against the applicant are illegal and are accordingly quashed.

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The instant application stands allowed.

(Sameer Jain,J.)

October 17, 2025

SKM

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

Zia- Ur- Rehman v. State of U.P. and Another

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Zia- Ur- Rehman v. State of U.P. and Another

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