Allahabad High Court
Zakir Ali vs State Of U.P. And Another on 4 September, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:143622 Court No. - 64 Case :- APPLICATION U/S 482 No. - 26997 of 2023 Applicant :- Zakir Ali Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mohd Abdullah Tehami,Shahabuddin,Syed Mohammad Nawaz Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Syed Mohammad Nawaz, learned counsel for the applicant, Sri Ajay Singh, learned AGA-I for the State and perused the record.
2. The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant Zakir Ali with the following prayers:-
"It is, therefore, most respectfully prayed that the Hon'ble Court may graciously be pleased to allow the present application and to quash the entire proceeding of Criminal Case Number-2475/2022 (State Vs. Madan Bhaiyya and others), Cognizance order dated 11.03.2022, Summoning order dated 11.03.2022 as well as Non Bailable Warrant dated 06.07.2023, pursuant to charge sheet dated 15.02.2022, arising out of Case Crime Number- 95 of 2022, under Sections 171-D, 188, 269 and 270 I.P.C., Section 51 & 57 of Disaster Management Act, 2005, Police Station Loni, District Ghaziabad, pending before the court of learned ACJM- Court No. 3, District Ghaziabad.
It is further prayed that this Hon'ble Court may be pleased to stay the further proceeding of Criminal Case Number-2475/2022 (State Vs. Madan Bhaiyya and others), Cognizance order dated 11.03.2022, Summoning order dated 11.03.2022 as well as Non Bailable Warrant dated 06.07.2023, pursuant to charge sheet dated 15.02.2022, arising out of Case Crime Number- 95 of 2022, under Sections 171-D, 188, 269 and 270 I.P.C. and Section 51 & 57 of Disaster Management Act, 2005, Police Station Loni, District Ghaziabad, pending before the court of learned ACJM- Court No. 3, District Ghaziabad, during pendency of the present case before this Hon'ble Court, otherwise the applicant shall suffer irreparable loss and injury.
And/or pass such further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, in favour of applicant, so that justice may be done."
3. Learned counsel for the applicant has submitted that case of identically placed co-accused Madan Bhaiyya@Madan Gopal has been quashed by another Bench of this Court vide order dated 03.03.2023 passed in Application U/S 482 No. 6593 of 2023 (Madan Bhaiyya @ Madan Gopal vs. State of U.P. and another), copy of the said order has been placed before the Court which is annexure no. 5 to the affidavit in support of this application. Learned counsel has submitted that the proceedings in so far as the applicant is concerned, also deserve to be quashed on the basis of argument of learned counsel therein and the findings returned in the said judgement. It is submitted that the case of the applicant is identical to that of said co-accused Madan Bhaiyya@Madan Gopal against whom the proceedings have been quashed.
4. Per contra, learned State counsel opposed the prayer for quashing and submitted that the applicant is named in the F.I.R. and there are allegations against him along with co-accused Madan Bhaiyya @ Madan Gopal, Rashid Malik and Om Veer Malik and other supporters. It is submitted that counter affidavit in the matter has already been filed. It is further submitted that charge sheet in the matter after investigation has submitted against the applicant and the other co-accused persons on which cognizance has been taken by the court concerned. Learned counsel for the State however could not dispute the fact regarding the judgment dated 03.03.2023 passed by another Bench of this Court in the case of co-accused Madan Bhaiyya@Madan Gopal. However, while placing C.A.-1 to the counter affidavit learned State counsel submitted that the applicant is reported to be involved in 07 other criminal cases as per the details available in C.C.T.N.S. Portal and D.C.R.B., Ghaziabad including the present case and as such the proceeding against the applicant may not be quashed since the applicant is habitual in criminal offence. The details of the cases have been placed before the Court which are as under:-
Name and address of accused Sl. No. Case Crime No. Sections Police Station District Zakir Ali S/o Rashid Ali, R/o- Uparkot, P.S.- Loni, Ghaziabad.
1.
81/2022 171H, 188, 269, 270 I.P.C. and 51 Disaster Management Act Loni Boarder Ghaziabad
2. 338/2019 120, 406, 420, 467, 468, 471, 504, 506 I.P.C.
Loni Boarder Ghaziabad
3. 914/2019 143, 145, 147, 149, 151, 186, 332, 34, 341, 353 I.P.C.
Loni Boarder Ghaziabad
4. 95/2022 171F, 188, 269, 270 I.P.C. and ¾ Epidemic Act and 51 Disaster Management Act.
Loni Ghaziabad
5. 88/2017 171 I.P.C.
Loni Ghaziabad
6. 433/2020 188, 269 I.P.C.
Loni Ghaziabad
7. 1160/2019 147, 148, 149, 186, 188, 332, 341, 353 I.P.C.
Loni Ghaziabad
5. Learned counsel for the applicant in rebuttal has submitted that the present case of the applicant is identical to that of co-accused Madan Bhaiyya@Madan Gopal whose proceedings have been quashed. It is submitted while placing paragraph-9 of the rejoinder affidavit that in so far as the criminal history of the applicant is concerned, two cases have been closed by the court concerned after filing of final report and in regard to other cases, the same are false and implication of the applicant in the same are just because he is a person involved in politics.
6. After having heard learned counsels for the parties and perusing the records, it is evident that co-accused Madan Bhaiyya@Madan Gopal has challenged the proceedings of the present case before this Court in Application U/S 482 No. 6593 of 2023 (Madan Bhaiyya @ Madan Gopal vs. State of U.P. and another). The said application has been allowed vide order dated 03.03.2023. The said order reads as under:-
"1. Heard Sri Syed Mohammad Nawaz, learned counsel for the petitioner and Sri Ratnendu Kumar Singh, learned AGA and perused the record.
2. The present petition under Section 482 Cr.P.C. has been filed seeking quashing of the summoning/cognizance orders dated 11.3.2022 as well as charge sheet dated 15.2.2022 and the entire proceedings of Criminal Case No.2475 of 2022 (State Vs. Madan Bhaiyya and others), arising out of Case Crime No.95 of 2022, under Sections 171-D, 188, 269 and 270 IPC and Sections 51 and 57 of the Disaster Management Act, 2005, Police Station Loni, District Ghaziabad, pending in the court of Additional Chief Judicial Magistrate, Court No.3, Ghaziabad.
3. Petitioner is a sitting Member of Legislative Assembly of Uttar Pradesh.
4. Learned counsel for the petitioner submits that in view of the bar prescribed under Section 195 Cr.P.C. the prosecution for the said offence is permissible only on a complaint in writing by the competent officer whose order could have been violated by a person. He further submits that the prosecution for offence under Section 188 IPC can not be initiated by a police report. He, therefore, submits that taking cognizance for offence under Section 188 IPC against the petitioner, is wholly illegal and without jurisdiction.
5. So far the offence under Section 171-D IPC is concerned, learned counsel for the petitioner submits that Section 171-D IPC can not be invoked against the candidate of an election. That offence is in respect of an agent or supporter, but not against the candidate. He also submits that the offences under Sections 269 and 270 IPC are also not made out in the facts and circumstances of the case. He, therefore, submits that the learned Magistrate has not applied his judicial mind while taking cognizance against the petitioner and summoning him to face the trial.
6. Considering the entirety of the facts and circumstances of the case, the impugned proceedings are nothing but an abuse of process of the Court and the petitioner, who is a responsible Member of Legislative Assembly and has been elected thrice, is unnecessarily being prosecuted and the facts of the case do not disclose any such offence for which he is being prosecuted.
7. On the other hand, learned AGA has not disputed the aforesaid legal submissions.
8. For sake of convenience, Section 195 Cr.P.C. reads as under:-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance -
[171D. Personation at elections.?Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election: 167 [Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector.]](a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appellable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
9. Thus, in respect of offences punishable under Sections 172 to 188 IPC or abetment, the Court can take cognizance only on a complaint in writing of the public servant concerned or some public servant to whom he administratively subordinate. The prohibitory orders are issued by the executive Magistrates. In this case, the FIR was registered by a police report, on which the charge sheet has been filed, therefore, the charge sheet can not be treated to be a complaint.
10. In view thereof, taking cognizance for offence under Section 188 IPC by the learned Magistrate is hit by Section 195 Cr.P.C. and, therefore, the order taking cognizance for offence under Section 188 IPC against the petitioner on a police report is unsustainable and the same is liable to be set aside.
11. Section 171-D IPC would read as under:-
"171D. Personation at elections.?Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election: Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector.
12. It would be apt to extract Sections 269 and 270 IPC, which are as under:-
"269. Negligent act likely to spread infection of disease dangerous to life.- Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
270. Malignant act likely to spread infection of disease dangerous to life.--
Whoever malignantly does any act which is, and which he knows or has reason the believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
13. Considering the aforesaid facts, this Court is of the view that the offences under Sections 171-F, 269 and 270 IPC are also not attracted against the petitioner in the facts and circumstances of the case.
14. In view thereof, the present petition is allowed and the summoning/cognizance orders dated 11.3.2022 as well as charge sheet dated 15.2.2022 and the entire proceedings of Criminal Case No.2475 of 2022 (State Vs. Madan Bhaiyya and others), arising out of Case Crime No.95 of 2022, under Sections 171-D, 188, 269 and 270 IPC and Sections 51 and 57 of the Disaster Management Act, 2005, Police Station Loni, District Ghaziabad, pending in the court of Additional Chief Judicial Magistrate, Court No.3, Ghaziabad, so far it relates to the petitioner, are hereby quashed."
7. The arguments with regards to the applicant are concerned, are the same and the said order of co-accused has attained finality.
8. In view of the same, the present Criminal Misc. Application U/S 482 Cr.P.C. is allowed.
9. The proceeding of Criminal Case Number-2475/2022 (State Vs. Madan Bhaiyya and others), Cognizance order dated 11.03.2022, Summoning order dated 11.03.2022 as well as Non Bailable Warrant dated 06.07.2023, pursuant to charge sheet dated 15.02.2022, arising out of Case Crime Number- 95 of 2022, under Sections 171-D, 188, 269 and 270 I.P.C. and Section 51 & 57 of Disaster Management Act, 2005, Police Station Loni, District Ghaziabad, pending before the court of learned ACJM- Court No. 3, District Ghaziabad are hereby quashed against the applicant.
Order Date :- 4.9.2024 Priya (Samit Gopal,J.)