Allahabad High Court
Riyaz Ahmad And 5 Others vs State Of U.P. And Another on 6 October, 2023
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:192633 Court No. - 86 Case :- APPLICATION U/S 482 No. - 28536 of 2023 Applicant :- Riyaz Ahmad And 5 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjeev Kumar Singh Counsel for Opposite Party :- G.A.,Alauddin Hon'ble Rajiv Gupta,J.
1. Heard learned counsel for the applicants, learned AGA for the State, Shri Alauddin, learned counsel for the opposite party no.2 and perused the record.
2. This application under Section 482 CrPC has been filed by the applicants with the prayer to quash the charge-sheet dated 23.07.2022, cognizance order dated 15.03.2023 and summoning order dated 01.05.2023 as well as entire proceedings of Case No. 4632 of 2022 (Riyaz Ahmad and Others Vs. State of U.P.), arising out of Case Crime No. 140 of 2022, under Sections 147, 436, 352, 504, 506, 427 IPC, Police Station Mehdaval, District Sant Kabir Nagar, pending in the court of District and Sessions Judge, Sant Kabir Nagar.
3. As per the allegations made in the FIR, it is alleged that first informant- opposite party no.2 Mohd. Akram Hussain had divorced his wife Khushnuma on 22.10.1996 and since then, she had been living along with elder son Riyaz Ahmad in another house. Thereafter, his wife Khushnuma and elder son Riyaz Ahmad, in order to grab the property of first informant, tried to kill him by opening fire. On the basis of which, an FIR was lodged against them, which was registered vide Case Crime No. 712 of 2007, under Section 307 IPC and Case Crime No. 713 of 2007, under Section 3/25 Arms Act, Police Station Mehdaval, District Sant Kabir Nagar and the said case is in progress. Accused persons i.e. Khushnuma and her sons Nisar Ahmad and Shahjad Ahmad always pressurized the first informant Mohd. Akram Hussain to withdraw the said case, however, he continued to pursue the same.
4. It is further alleged that on 03.05.2022, the accused persons reached at the house of the first informant and abused him and extended death threats to him for not compromising in the said case. Again on 07.06.2022, accused Riyaz Ahmad and Shahjad Ahmad forcibly entered in the house of the first informant and started hurling abuses and threatened to chop him in pieces, which incident has been recorded in CCTV camera also.
5. It is further alleged that accused Nisar Ahmad further threatened the first informant Mohd Akram Hussain for compromising in the said case, for which, a Case No. 129 of 2022, under Section 504, 506 IPC has also been lodged against the accused person.
6. It is further alleged that on 11.06.2022 at about 9:50 AM, the applicants reached at the house of the first informant and started kicking his entry gate and started pelting stones and hurling abuses and tried to forcibly enter therein. Information in respect of the said incident was also given to the police, who reached at the place of the incident, then applicants left the place of the incident extending death threats to him.
7. On the basis of the said allegations, FIR was registered vide Case Crime No. 140 of 2022, under Sections 147, 436, 352, 504, 506, 427 IPC. After registration of the said case, the police investigated the matter and after concluding the investigation, submitted the charge-sheet against the accused persons under Sections 147, 436, 352, 504, 506, 427 IPC.
8. On the basis of the said charge-sheet, learned Magistrate has taken cognizance and summoned the applicants to face trial under Sections 147, 436, 352, 504, 506, 427 IPC vide order dated 15.03.2023.
9. Being aggrieved and dissatisfied by the said summoning order dated 15.03.2023, the present application under Section 482 CrPC has been filed.
10. Learned counsel for the applicants has submitted that from the perusal of the allegations made in the FIR as well as statement of the witnesses recorded under Section 161 CrPC, prima facie no offence is disclosed against the applicants and the entire allegations made therein are cooked up, concocted and false, just to drag them in criminal court.
11. Learned counsel for the applicants has further submitted that neither in the FIR nor in the statement of the witnesses recorded during the course of investigation, there is absolutely no allegation against the applicants that they have ever committed mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that they will thereby cause, the destruction of any building, which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property. Yet without there been any iota of evidence in this respect, even charge-sheet under Section 436 IPC has been filed against the applicants and the learned Magistrate without application of judicial mind has even taken cognizance of the offence under Section 436 IPC and summoned the applicants to face trial under Section 436 IPC, which by no stretch of imagination is disclosed against the applicants and as such, entire proceedings is liable to be quashed.
12. Per contra, learned AGA for the State as well as learned counsel for the opposite party no.2 has submitted that from the allegations made in the FIR as well as statement of the witnesses recorded under Section 161 CrPC, prima facie offence under Sections 147, 352, 504, 506, 427 IPC is clearly made out against the applicants, who forcibly tried to enter in the house of the first informant- opposite party no.2 Mohd. Akram Hussain and extended death threats to him by pelting stone and hurling abuses.
13. However, on specific query being put to them regarding commission of offence under Section 436 IPC, neither the state counsel nor the counsel for the opposite party no.2 could point out any material on record, which may constitute an offence under Section 436 IPC, however, the have submitted that so far as other offences i.e. under Sections 147, 352, 504, 506, 427 IPC are concerned, prima facie offence under Sections 147, 352, 504, 506, 427 IPC is clearly made out against the applicants, as such, the proceedings of the aforesaid sections can not be quashed.
14. Having considered the rival submissions made by learned counsel for the parties and taking into consideration the allegations made in the FIR and the material collected during the course of investigation in the form of statement recorded under Section 161 CrPC, prima facie material constituting the offence under Sections 147, 352, 504, 506, 427 IPC is clearly available on record, however, since there are no allegation to constitute the offence under Section 436 IPC against the applicants, therefore, in my considered opinion filing of charge-sheet under Section 436 IPC against the applicants and taking of cognizance by the learned Magistrate for the offence under Section 436 IPC against the applicants, is bad in law and the same is liable to be quashed.
15. In view of the above, so far as the commission of offence under Section 436 IPC is concerned, there is no iota of evidence to constitute the said offence and as such, order taking cognizance by the learned Magistrate under Section 436 IPC is liable to be quashed, however, since from the allegations made in the FIR and the material collected during the course of investigation, prima facie offence under Sections 147, 352, 504, 506, 427 IPC is made out against the applicants and as such, cognizance order under the said sections is just, proper and legal and do not call for any interference. Order taking cognizance for the offence under Section 436 IPC stands quashed. However, in view of the aforesaid facts and circumstances of the case, proceedings for the offence under Sections 147, 352, 504, 506, 427 IPC shall continue against the applicants and be brought to a logical conclusion.
16. With the aforesaid observations, the present application under Section 482 CrPC stands partly allowed. No order as to costs.
Order Date :- 6.10.2023/Nadim