Allahabad High Court
Himanshu Kulshrestha vs State Of Up And 4 Others on 1 August, 2024
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:124268 Court No. - 75 Case :- APPLICATION U/S 482 No. - 4305 of 2024 Applicant :- Himanshu Kulshrestha Opposite Party :- State Of Up And 4 Others Counsel for Applicant :- Arvind Agrawal Counsel for Opposite Party :- Ayush Mishra,G.A.,Sunil Kumar Misra and Case :- APPLICATION U/S 482 No. - 15463 of 2021 Applicant :- Smt Nirdosh Jain And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dhirendra Kumar Srivastava,Yadvendra Mani Mishra Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Arvind Agrawal, learned counsel for the applicants, Mr. S.K. Mishra, learned counsel or opposite party nos.2 to 5 as well as Mr. D.P. Singh, learned AGA for the State and perused the material on record.
2. The present 482 Cr.P.C., application has been filed for quashing the impugned order dated 17.01.2024 passed by Additinal Sessions Judge, Court No.7, Firozabad in Criminal Revision No.37 of 2021 alongwith Criminal Revision No.38 of 2021, arising out of Case Crime No.530 of 2013, under Sections 420, 467, 468 and 471 I.P.C., Police Station- Tundla, District- Firozabad.
3. Brief facts of the case are that initially an FIR was lodged on 19.09.2013 against 9 named accused namely Sudhanshu Kulshrestha, Salra Verma, Ashok Ved Sanjay Kumar, Sumer Singh, Subodh Kumar, Shubhashish and Smt. Nirdosh Jain by the applicant Himanshu Kulshrestha (informant) in which after investigation final report was submitted on 30.12.2013 against which the applicant (informant) filed a protest petition on 25.07.2017 wherein accused persons were summoned by order dated 19.03.2021. The aforesaid order was challenged by Smt. Nirdosh Jain And Another by means of filing Application U/S 482 No.15463of 2021 and the Co-ordinate Bench of this Court was pleased to pass the following orders :-
"Heard Mr. Y.M. Mishra, the learned counsel for applicants, the learned A.G.A. for State and Mr. Piyush Dubey, the learned counsel for opposite party-2.
Challenge in this application under Section 482 Cr.P.C. is to the order dated 19.3.2021, passed by Chief Judicial magistrate, Firozabad in Misc. Case No. 105 of 2014, arising out of Case Crime No. 530 of 2013, under sections 420, 467, 468, 471 IPC, Police Station- Tundla, District Firozabad, whereby Court below has allowed the protest petition filed by first informant/opposite party-2 against the Police report dated 30.12.2013 (final report) submitted under section 173(2) Cr.P.C. and simultaneously taken cognizance upon the Police report in exercise of jurisdiction under section 190 (1)(b).
Record shows that first informant/opposite party-2 lodged an F.I.R. dated 19.9.2013 wheich was registered as Case Crime No. 530 of 2013, under sections 420, 467, 468, 471 IPC, Police Station- Tundla, District Firozabad. In the aforesaid F.I.R. as many as nine persons namely, Sudhanshu Kulshreshta, Sarla, Ashok, Sanjay Kumar, Samar Singh, Vinod Prakash, Subodh Kumar, Subhasheesh Jain, Nirdosh Jain have been nominated as named accused.
After lodging of aforementioned F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He, examined first informant and other witnesses under section 161 Cr.P.C. On the basis of above and other material collected by the Investigating Officer during course of investigation, which is not adverse to applicant, Investigating Officer submitted the Police Report (final report) dated 30.12.2013. The said Police report was rejected by concerned Superintendent of Police vide order dated 26.3.2014. However, in the interregnum, first informant/opposite party-2 filed a protest petition dated 25.7.2017, praying therein that final report No. 243 of 2013 dated 30.12.2013 be not accepted. Subsequent to order dated 26.3.2014, passed by concerned Superintendent of Police, Investigating Officer further investigated the matter but he again submitted Police report (final report) dated 16.3.2015. Concerned Magistrate by means of impugned order dated 19.3.2021 did not accept the final report dated 10.12.2013 and in exercise of jurisdiction under section 190 (1) (b) Cr.P.C. took cognizance upon said Police report and simultaneously summoned the applicant.
Feeling aggrieved by above order dated 19.3.2021, applicant who has now been summoned by Court below has approached this court by means of present application, under section 482 Cr.P.C.
On the above premise, learned counsel for applicant submits that order impugned in present application is manifestly illegal and without jurisdiction. Concerned Magistrate, had no jurisdiction to decide the veracity of the police report dated 30.12.2013, which is a final report inasmuch as the said police report was itself rejected by concerned Superintendent of Police vide order dated 26.3.2014. No protest petition was filed by first informant/opposite party-2 against police report dated 16.3.2015 (second final report) therefore, there was no occasion before the concerned Magistrate to consider the veracity or otherwise of the first Police report. It is next contended that applicant is a bonafide purchaser in good faith after payment of due consideration of the land in dispute. Since applicant has neither forged nor manufactured any document, consequently, no offence as alleged in the F.I.R. can be said to have been committed by applicant. To buttress his submission, he has relied upon the judgements of Supreme Court in Mohammad Ibrahim and Others Vs. State of Bihar and Another, reported in 2009 (8) SCC 751 and Sheila Sebastain Vs. R. Jawar Raj and another, reported in 2018 (7) SCC 581. On the aforesaid premise, he contends that present criminal proceedings are not only illegal but also an abuse of process of Court and therefore, same are liable to be quashed by this Court.
Per contra, the learned A.G.A. for State and Mr. Mr. Piyush Dubey, the learned counsel for first informant/opposite party-2 have opposed this application. However, they could not dislodge the legal submissions urged by learned counsel for applicants at this stage.
Having heard the learned counsel for applicants, the learned A.G.A for State, and Mr. Piyush Dubey the learned counsel for first informant/opposite party-2, and upon perusal of record, matter requires consideration.
Notice on behalf of opposite party no.1 has been accepted by learned A.G.A. Mr. Mr. Piyush Dubey, appears for opposite party-2. They pray for and are granted four weeks time to file counter affidavit. Applicant will have two weeks thereafter to file rejoinder affidavit.
List for admission thereafter.
Until further orders of this Court, no coercive action shall be taken against applicants pursuant to the impugned order dated 198.3.2021, passedby Chief Judicial Magistrate, Firozabad, in Misc. Case No. 105 of 2014, arising out of Case Crime No. 530 of 2013, under sections 420, 467, 468, 471 IPC, Police Station- Tundla, District Firozabad."
4. Few of the accused persons namely Sudhanshu Kulshrestha, Ashok Ved, Samar Singh and Vinod Prakash opposite party nos.2 to 5 in the present application filed revision challenging the summoning order being Criminal Revision No.37 of 2021 before the court below and the aforesaid revision has been decided by order dated 17.01.2024 vide which the summoning order dated 19.03.2021 passed by learned Chief Judicial Magistrate, Firozabad in Misc. Case No.105 of 2014 (Himanshu vs. Sudhanshu and Others) related to Case Crime No. 530 of 2013, Police Station- Tundla District- Firozabad was set-aside. While setting-aside the aforesaid summoning order, the learned Magistrate has also directed the Chief Judicial Magistrate to pass fresh orders in the light of observations made by the revisional court. Challenging the aforesaid order, informant Himanshu Kulshrestha has filed the present application.
5. Learned counsel for the parties submitted that as on date after filing of the protest petition, there is no order treating opposite party nos.2 to 5 as accused and in view of the orders passed by this Hon'ble Court in the petition of Smt. Nirdosh Jain, the order summoning the accused persons was stayed, therefore, as on date no one is accused pursuant to the FIR lodged by the informant against the alleged accused persons.
6. Learned counsel for the applicants submits that while deciding the revision, the revisional court has applied its mind and dealt with factual disputes also which cannot be done in view of settled position of law
7. Learned AGA as well as learned counsel for opposite party nos.2 to 5 also do not dispute the correctness of the submissions as made by the learned counsel for the applicants.
8. This Court finds that as the summoning order is not in existence, therefore, a direction is issued to Chief Judicial Magistrate to pass fresh orders, in accordance with law, without being effected by the observations made by this Court or the revisional court and after giving opportunity of hearing to both the parties.
9. Both the petitions accordingly disposed off.
Order Date :- 1.8.2024 Kalp Nath Singh