Allahabad High Court
Najim vs State Of U.P. And 3 Others on 18 March, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:38356 Court No. - 70 Case :- APPLICATION U/S 482 No. - 23646 of 2024 Applicant :- Najim Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashutosh Prasad Shukla,Manish Kumar Dwivedi Counsel for Opposite Party :- G.A.,Santosh Kumar Singh,Syed Wajid Ali Hon'ble Rajeev Misra,J.
1. Heard Mr. Ashutosh Prasad Shukla, the learned counsel for applicant, the learned A.G.A. for State opposite party-1 and Mr. Santosh Kumar Singh, the learned counsel representing first informant opposite party-2.
2. Perused the record.
3. Applicant-Najim, who is a charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application under 482 Cr.P.C. and quash the summoning order dated 23.05.2024 as well as entire criminal proceeding of Special Case No. 161 of 2023 (State Verses Amit and another) pending before Special Judge POCSO Act/Additional Session Judge Bareilly, arising out of Case Crime No. 38 of 2023 under section 376AB IPC and 5M/6 POCSO Act at Police Station Shergarh District Bareilly.
It is also prayed that the further proceedings of Special Case No. 161 of 2023 (State Verses Amit and another) pending before Special Judge POCSO Act/Additional Session Judge Bareilly, arising out of Case Crime No. 38 of 2023 under section 376AB IPC and 5M/6 POCSO Act at Police Station Shergarh District Bareilly may also be stayed during the pendency of the present application under section 482 Cr.P.C."
4. Record shows that in respect of an incident, which is alleged to have occurred on 11.03.2023, a prompt FIR dated 11.03.2023 was lodged by first informant opposite party-2 and was registered as Case Crime No. 38 of 2023 under section 376AB IPC and 5M/6 POCSO Act, Police Station Shergarh District Bareilly. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.
5. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him during course of investigation he came to the conclusion that complicity of one person namely Amit is established in the crime in question. Accordingly, Investigating Officer opined to submit the charge sheet/police report against aforementioned accused. In view above, ultimately, the Investigating Officer submitted the charge sheet/police report dated 16.05.2023 in terms of Section 173 (2) Cr.P.C., whereby, not named accused Amit was charge sheeted under section 376AB IPC and 5M/6 POCSO Act.
6. After submission of aforementioned charge sheet/police report, Court below upon perusal of the papers accompanying the police report i.e. case diary came to the conclusion that the complicity of one Nazim is also established in the crime in question. Accordingly, at the time of taking cognizance in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Court below took cognizance against non-charge sheeted accused Nazim and simultaneously summoned him to face trial.
7. Thus, feeling aggrieved by the above, applicant Nazim approached this Court by means of an Application under Section 482 Cr.P.C. No. 11782 of 2024 (Najim Vs. State Of Up And 3 Others). The aforementioned application came to be allowed by this Court vide order dated 29.04.2024. For ready reference, the order dated 29.04.2024 is reproduced hereinbelow:-
"1. List revised.
2. Heard Sri Ashutosh Kuamr Mishra, Advocate, holding brief of Sri Ashutosh Prasad Shukla, learned counsel for the applicant, Sri Ram Prakash Shukla, learned State counsel and perused the record.
3. This application u/s 482 Cr.P.C. has been filed by the applicant Najim with the prayer to quash N.B.W. order dated 22.2.2024 and summoning order dated 17.5.2023 as well as entire criminal proceeding of Special Case No. 161 of 2023 (State vs. Amit and another) pending before Special Judge POCSO Act/Additional Session Judge, Bareilly, arising out of Case Crime No. 38 of 2023, under Section 376AB I.P.C. and 5M/6 POCSO Act, at Police Station Shergarh, District Bareilly with the further prayer to stay the further proceedings of said case during pendency of the present petition.
4. Learned counsel for the applicant has drawn the attention of the Court to the summoning order, the copy of which is annexed at page no. 27 to the paper book. It is argued that the same is on a printed proforma without application of mind. It is argued that from perusal of the order dated 17.5.2023, it is apparent that the same is on a printed proforma in which the Section, Police Station, Case No., name of the accused are kept blank and have been filed by ink along with next date for appearance of the accused whereas all the other contents of the order are previously printed. It is argued that the same clearly demonstrates that there has been total non application of mind by the concerned trial court and the order taking cognizance and summoning the accused is thus bad in the eyes of law.
5. Learned counsel for the State though opposed the prayer for quashing but could not dispute the fact that the order taking cognizance and summoning the accused dated 17.5.2023 is on a printed proforma with blank spaces of the relevant things which have been filled in ink.
6. Time and again, it has been held that orders of printed proforma cannot be passed and the said system of passing such orders have been deprecated.
7. In the case of Amit Jani vs. State of U.P. and others: (2020) 5 ADJ 1, a Division Bench of this Court has held as follows:-
"The passing of orders in printed proforma/cyclostyled formats have been deprecated by various High Courts including this court as they do not reflect application of mind. Reference is made to the following judgments:-
1. 2000 ILR (Kar) 4773, Vijaya Bank Vs. State.
2. 2010(9) ADJ 594, Abdul Rasheed Vs. State of U.P. & another.
3. 2009 (67) ACC 532, Ankit Vs. State of U.P. & another.
4. 2010 (3) ADJ 622, Saurabh Dewana Vs. State of U.P."
8. Looking to the facts and circumstances of the case and without going into the merits of the case as of now, the order dated 17.5.2023 is hereby set aside.
9. The present application is allowed to this extent.
10. The matter is remanded back to the trial court concerned to pass fresh order in accordance with law within a period of three weeks from the date of production of a certified copy of this order."
8. Subsequent to above order dated 29.04.2024, Court below reconsidered the matter regarding taking cognizance/summoning of non-charge sheeted accused. Court below re-examined the material accompanying the police report and on the basis of same returned the following findings.
A. The complicity of prospective accused Nasim is established in the crime in question as per the statement of the prosecutrix/victim herself. However, as per the medical examination, the prospective accused Nazim is guilty of committing penetrative sexual assault which is established from the Medico-Legal Examination Report of the prosecutrix.
B. The complicity of not named accused Nazim has emerged in the statement of the friend of the prosecutrix. However, even though, aforesaid findings have been returned by Court below in order impugned but the Court below has summoned applicant Nazim only. The order impugned does not indicate that as to what on basis the Court below has arrived at the conclusion that complicity of the prospective accused Nazim i.e. application herein is also prima facie established in the crime in question.
9. On the above conspectus, the learned counsel for applicant contends that the order impugned has not been passed in diligent exercise of jurisdiction but in a casual and caviler fashion. In view of above, the order impugned cannot be sustained and therefore, liable to be quashed by this Court.
10. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant opposite party-2 have attempted to support the order impugned. They submit that in view of above findings returned by Court below in the order impugned itself, no interference is warranted by this court in present application. Considering the nature and gravity of the offence coupled with the fact that prosecutrix is a young girl aged about 10 years, no indulgence be granted by this Court in present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this application with reference to the record at this stage.
11. Having heard, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that the conclusion drawn by Court below in the order impugned does not commensurate with the findings returned by Court below. This Court further finds that though, cognizance has been taken against present application Nazim a non charge sheeted accused but the reason for summoning the present applicant is conspicuous by it's absence in the order impugned. The reason which prevailed in the mind of Court below for summoning the present applicant does not find mention in the order impugned. Therefore, what is culled out from the impugned order is that though complicity of applicant is alleged in the crime in question but the nature of such criminality has neither be stated nor dealt with by Court below in the order impugned. In view of above, the learned counsel for applicant is right in his submission that Court below has passed the order impugned not diligently but in a casual and cavalier fashion exercise of jurisdiction under Section 190(1)(b) Cr.P.C.
12. In view of the discussion made above, the present application succeeds and is liable to be allowed.
13. It is, accordingly, allowed.
14. The order dated 23.05.2024 passed by Special Judge POCSO Act/Additional Sessions Judge Bareilly in Special Case No. 161 of 2023 (State Verses Amit and another), arising out of Case Crime No. 38 of 2023 under sections 376AB IPC and 5M/6 POCSO Act, Police Station Shergarh District Bareilly shall stand quashed.
15. The matter shall stand remanded to Court below for decision a fresh. The necessary exercise shall be taken by Court below within a period of one month from the date of presentation of certified copy of this order.
16. In the facts and circumstances of the case, the cost is made easy.
Order Date :- 18.3.2025 Imtiyaz