Allahabad High Court
Haji Iqbal Mohammad vs State Of U.P. And Another on 12 February, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- APPLICATION U/S 482 No. - 1306 of 2021 Applicant :- Haji Iqbal Mohammad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Indra Bhan Yadav,Sudhir Kumar Agarwal Counsel for Opposite Party :- G.A. Hon'ble Om Prakash-VII,J.
Exemption application is allowed.
Application is decided at this stage itself.
Heard learned counsel for the applicant and the learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed with the prayer to quash the entire proceedings in Case No. 5077 of 2019, arising out of NCR No. 09 of 2017, under Section 171-D IPC, Police Station Mirzapur, District Saharanpur pending before the Judicial Magistrate-II, Saharanpur and further to stay further proceedings of the aforesaid case.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has not committed the present offence. Referring to the ingredients of the offence under Section 171-D IPC as well as the contents of F.I.R. it is further submitted that the alleged offences are not attracted in the matter. It is next contended that the maximum punishment for the offence under Section 171-D IPC in 171-F IPC is for one year imprisonment or fine or both. As per schedule, offence under Section 171-D IPC is non-cognizable. Cognizance cannot be taken on the charge sheet straightway. Provisions of Section 2(d) CrPC as well as Chapter XV CrPC will be attracted in the present matter. Hence, the order taking cognizance in the matter is illegal and without application of judicial mind. Criminal prosecution cannot be continued on the basis of cognizance taken in the matter. Entire proceeding against the present applicant is nothing but an abuse of process of law.
Learned AGA opposed the prayer.
In this matter, as is evident from the record, maximum punishment for the offence under Section 171-D read with Section 171-F IPC is provided for one year imprisonment or fine or both. Offence is non-cognizable, bailable and triable by First Class Magistrate. If such is the position, order taking cognizance on the charge sheet straightway is not sustainable. Provisions of Section 2 (d) CrPC as well as Chapter XV CrPC are attracted in the present matter. It appears that the trial court without going through the entire record and the legal provisions took cognizance on the charge sheet straightway. Learned AGA is also not in a position to raise any objection that the present offence is cognizable. Thus, in the facts and circumstances of the case, in my view, there is substance in the submissions made by the learned counsel for the applicant to the extent that cognizance taken on the charge sheet straightway is illegal and without application of judicial and the impugned order to this extent is liable to be set aside. Hence, in view of the above discussions, the application is allowed and the impugned cognizance order as well as the consequential orders passed thereafter are set aside to the aforesaid extent and the matter is remanded back to the Court / Magistrate concerned to pass fresh order in accordance with law.
The party shall file self attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 12.2.2021 safi