Allahabad High Court
Taharun Nisha And Another vs State Of U.P. And Another on 22 July, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:116466 Court No. - 74 Case :- APPLICATION U/S 482 No. - 3683 of 2020 Applicant :- Taharun Nisha And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shahid Ali Siddiqui,Shesh Mani Misra,Tejasvi Misra Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. This Court has passed following order on 26.11.2020 -:
?Heard learned counsel for the applicants, learned counsel for the opposite party and learned A.G.A. for the State.
Supplementary affidavit filed by Mr. Shahid Ali Siddiqui, learned counsel for the applicants is taken on record.
Instant application under Section 482 has been preferred by accused for quashing the entire proceeding in Case No. 111 of 2019 arising out of case crime No.141 (State Vs. Alamgir & others), U/s 223 and 224 I.P.C., P.S.- Mau, District- Chitrakoot, pending before Judicial Magistrate, Mau, Chitrakoot, as well as the impugned summoning order dated 30.09.2019 issued by Judicial Magistrate, Mau, Chitrakoot.
Learned counsel for the applicants submits that the present applicant is a public servant and due to dereliction in performing of his official duty a F.I.R. has been lodged again him under Section 223, 224 I.P.C.. It is submitted that without prior sanction he can not be prosecuted and cognizance cannot be taken against him.
In support of his contention, learned counsel for the revisionist has extracted following cases:-
"(i) Criminal Appeal No. 458 of 2020 (D. Devaraja Vs. Owais Sabeer Hussain), vide order dated 18.06.2020.
(ii) Criminal Appeal No. 396 of 2016 (Amal Kumar Jha Vs. State of Chhatisgarh & Anr), vide order dated 26.04.2016
(iii) Application U/S 482 No. - 17421 of 2011 ( Ayush Kumar And Others Vs. State of U.P. And Another), vide order dated 10.04.2019"
Till the next date of listing, in the light of the aforesaid proposition of law as decided by the Hon'ble Supreme Court in the aforesaid judgements, effect and operation of the impugned summoning order dated 30.09.2019, passed in in Case No. 111 of 2019 arising out of case crime No.141 (State Vs. Alamgir & others), U/s 223 and 224 I.P.C., P.S.- Mau, District- Chitrakoot, pending before Judicial Magistrate, Mau, Chitrakoot is hereby stayed.
Notice on behalf of the opposite party Nos. 2 & 3 is received by learned A.G.A.
Learned A.G.A. prays for and is granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List this case on 22.02.2021, as unlisted.?
2. Sri Shahid Ali Siddiqui, learned counsel for applicants submits that on basis of contents of FIR, offence u/s 224 IPC is not made. So far as offence under Section 223 IPC is concerned, the fact that accused was apprehended within a short period of an hour as well as that applicants are protected u/s 197 Cr.P.C. and as no sanction was granted, no criminal proceedings be initiated against applicants.
3. Learned counsel refers following para 2 of supplementary affidavit -:
?That police official of state government specially constable / head constable etc are covered under protection granted to public servant under 197(3) Cr.P.C. vide Code of Criminal Procedure Amendment Act 1991 (Act No 43 of 1991} added with effect from 2.5.1991, for previous sanction must from State government before taking cognizance by any court and Shall apply to such class or category of the member of forces charged with the maintenance of public order during discharge of their official duties and applicants were discharging their duties when incident happen as alleged in the FIR dated 05.07.2018.?
4. State has filed a counter affidavit only to main petition and not to supplementary affidavit.
5. I find merit in argument of learned counsel for applicants that ingredients of Section 224 IPC i.e. "Resistance or obstruction by a person to his lawful apprehension" are absolutely not made in facts of present case.
6. So far as allegations u/s 223 IPC i.e. "Escape from confinement negligently suffered by a public servant" are concerned, it is also not made out as it has not been denied that accused who run away from custody of applicants was apprehended within a very short period.
7. In aforesaid circumstances, last argument of learned counsel for applicants also becomes substantial that in a given circumstances, applicants were protected u/s 197 Cr.P.C. also (see Shadakshari vs. State of Karnataka, 2024 INSC 42) and since there is no material on record that sanction was granted, therefore, impugned summoning order dated 30.09.2019 as well as proceedings of Case No. 111/2019 arising out of Case Crime No. 141/2018 (State vs. Alamgir and others) u/s 223 and 224 IPC, P.S. Mau, District- Chitrakoot, pending before Judicial Magistrate, Mau, Chitrakoot are hereby quashed.
6. However, State will be at liberty to take sanction, if so advised and to proceed against applicants in accordance with law.
7. Accordingly, application stands disposed of.
Order Date :- 22.7.2024/N. Sinha