Allahabad High Court
Ajay Pratap Singh vs State Of U.P. Thru. Prin. Secy. Home ... on 23 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- APPLICATION U/S 482 No. - 1557 of 2023 Applicant :- Ajay Pratap Singh Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrt. Lko. And Another Counsel for Applicant :- Mahendra Pratap Singh Counsel for Opposite Party :- G.A.,Akansha Dubey,Pradeep Kumar Rai,Prakarsh Pandey,Praveen Kumar Shukla Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri P.K.Rai, learned counsel for the opposite party no. 2 and Sri Ajay Singh Tomar, learned A.G.A. for the State.
By means of the instant application, the prayer for quashing/setting aside the impugned summoning order passed by the learned Judicial Magistrate-III, Lucknow in Case No. 63642 of 2022, State Vs. Ajay Singh and Others, under section 395 of Indian Penal Code arising out of Case Crime No. 651 of 2021, under section 395 Indian Penal Code, Police Station-Sarojini Nagar, District-Lucknow pending in the court of learned Additional Sessions Judge-V, Lucknow after summoning the original and chargesheet dated 22-06-2022 filed in the present case and the order dated 24-06-2022 passed by the learned Judicial Magistrate-III,Lucknow, has been made.
The factual matrix of the case is that an application under section 156(3) Cr.P.C., was instituted by the complainant alleging therein that about 20 accused persons entered into the house of the complainant and they hurled abuses and committed dacoity by taking away Fortuner Car bearing No. U.P. 62, B.A. 0007 as well as certain amounts. Further allegation is that they had threatened to face dire consequences to the complainant and his family members. The next set of the allegation in the F.I.R. is that the complainant was called at the police station wherein, the applicant was forced to sign over a pre-drafted compromise deed.The Station House Officer was also involved and the applicant under duress, signed over the compromise. Further the learned Magistrate directed for lodging the F.I.R., whereupon an F.I.R. was lodged and the Investigating Officer has conducted the investigation and submitted Chargesheet against the present applicant only and so far as the other accused are concerned, the investigation is still going on.
Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been implicated in the instant matter. He added that in fact the present applicant has nothing to do with the aforesaid and he has been implicated as he has only given information to the certain persons of the area that one North Media Centre has promulgated schemes, wherein Rs, 20,000/- was to be deposited for appointment in North Media Centre as there was a contract in between Trust namely Manyavar Kanshi Ram Educational Trust and the North Media Centre for the same. The present applicant is neither the Director nor any kind of authority in the trust as well in the North Media Centre itself. He submits that the Investigating Officer on the instigation of the complainant, has filed the Chargesheet against the present applicant,but, the investigation is still going on against the rest of the accused persons.
During course of his arguments, he has drawn attention of this court towards page no. 28 of the application i.e. the brief facts mentioned in the Chargesheet wherein, it has been transcribed that ample evidence has been found against the present applicant with respect to commit offence and thus, the Chargesheet has been filed and so far as rest of the accused persons namely Santosh Rai, Priya Tewari, Mahendra Kumar Pandey, Alok Srivastava @ Babloo Srivastava, Nitin Awasthi and Ravi Singh including 13 other unknown accused persons are concerned, the investigation is still going on. He next contended that so far as the offence under section 395 of I.P.C. is concerned i.e. the offence of dacoity, which has been defined under section 391 of I.P.C. Section 391 of I.P.C. is extracted hereinunder :-
"391.Dacoity- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing or aiding, is said to commit "dacoity"."
Referring the aforesaid, he submits that the offence of dacoity can be said to be committed once there are five or more than persons conjointly commits robbery. He added that the intent of legislature is very clear so far as the word "Conjointly" is concerned and thus, as far as the offence of dacoity is concerned, the Chargesheet or the trial against one person cannot proceed. He further added that so far as the legal position with respect to the cognizance is concerned, the procedure has been prescribed under section 190 of Cr.P.C., which is extracted hereinunder :-
"190. Cognizance of offences by Magistrates- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of second class specially empowered in this behalf under sub-section(2) may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
Placing the abovesaid provisions, he has put emphasis on the word "may take cognizance of any offence". He submits that the Magistrate while complying with the procedure under section 190 of Cr.P.C. takes cognizance of an 'offence' and not of an 'accused'. He submits that in the instant matter, the cognizance has been taken of an 'accused' and not of an 'offence' as is evident from the Chargesheet itself as the same has been filed against one of the accused person i.e. the present applicant and the investigation proceeding is still going on against the rest of the accused persons. He thus, submits that the whole proceedings vitiate in the eyes of law and the present applicant has unnecessarily been put to face criminal proceedings. He therefore, submits that the criminal proceedings against the applicant may be quashed.
On the other hand, Sri P.K.Rai, counsel appearing for the complainant has vehemently opposed the contentions aforesaid and submits that the content of the Chargesheet itself is evident that ample evidence has been collected against other co-accused persons also and conjointly there are more than 5 persons, who in fact are involved in committing offence and thus, there is no violation of the provisions of Section 190 of Cr.P.C. He further added that at the level of the cognizance, the Magistrate has to look into the fact that the Chargesheet has been filed against the accused persons or not and therefore, there is a reference with respect to collection of the evidences against other co-accused persons other than the present applicant and therefore, there is no illegality or perversity in the order of cognizance passed by the learned Magistrate. He also added that the sufficient material as well as the evidences have been collected by the Investigating Officer and since the other co-accused persons are absconding, thus, the chargesheet could not filed against them. He next added that the present applicant has all opportunity under the provisions of Cr.P.C. for approaching the trial court by way of filing an application for discharge, therefore, there is no illegality or infirmity in the order of cognizance and therefore, the instant application is liable to be dismissed, Learned A.G.A. appearing for the State submits that he will file detailed Counter Affidavit in this matter.
Matter requires consideration.
Let Counter Affidavits be filed by the learned A.G.A. as well as learned counsel for the opposite party no. 2 within two weeks.
Rejoinder Affidavit, if any, may be filed within one week thereafter.
List/put up this matter in the week commencing 27-03-2023.
Till the next date of listing,the proceedings of Case No. 63642 of 2022, State Vs. Ajay Singh and Others, under section 395 of Indian Penal Code, arising out of Case Crime No. 651 of 2021,Police Station-Sarojini Nagar, District-Lucknow, shall remain stayed subject to condition that it is open to the trial court that if the chargesheet is been filed against other four or more than four accused persons, the trial court can proceed and the interim protection granted to the applicant shall cease to end.
Order Date :- 23.2.2023 AKS