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IN THE HIGH COURT OF ALLAHABAD
SHAMIM AHMED, J.
Waris Ali – Appellant
Versus
The State of U.P. and Another – Respondents
Application U/s 482 No. 2828 of 2013
Decided On : 31-05-2024
CRIMINAL LAW - QUASHING OF CHARGE SHEET - Section 482 Cr.P.C., Section 441 I.P.C., Section 447 I.P.C. - The court discussed the provisions of Section 482 of the Criminal Procedure Code, which allows for the quashing of proceedings to prevent abuse of process, and Sections 441 and 447 of the Indian Penal Code concerning criminal trespass. The court interpreted that for a charge under Section 447 I.P.C. to stand, a notice under Section 441 I.P.C. must be served, which was not done in this case. The lack of proper investigation and the impossibility of the applicant's presence during the recording of statements were pivotal in the court's decision to quash the charge sheet.
Fact of the Case:
The applicant, Waris Ali, sought to quash a charge sheet filed against him under Section 447 I.P.C. for alleged unauthorized construction on a property he claimed no longer belonged to him. He argued that he was out of the country when his statement was recorded, and thus, the investigation was flawed.
Finding of the Court:
The court found that the charge sheet was based on a statement recorded while the applicant was abroad, indicating a serious flaw in the investigation. It also noted that no notice under Section 441 I.P.C. was served, which is a prerequisite for establishing criminal trespass under Section 447 I.P.C.
Issues: Whether the charge sheet under Section 447 I.P.C. was maintainable given the lack of notice under Section 441 I.P.C. and the flawed investigation process.
Ratio Decidendi: The court held that the absence of a notice under Section 441 I.P.C. meant that the applicant could not be charged with criminal trespass under Section 447 I.P.C. The court emphasized the necessity of proper investigation and adherence to legal procedures in criminal proceedings.
Final Decision: The application under Section 482 Cr.P.C. was allowed, quashing the charge sheet and all proceedings against the applicant related to Case Crime No. 8/2012.
JUDGMENT :
SHAMIM AHMED, J.
1. Heard Sri Sudeep Seth, learned Senior Advocate assisted by Sri Tanveer Ahmad Siddiqui and Sri Amit Jaiswal, learned counsel for the applicant, Sri Ashok Kumar Singh, learned A.G.A.-I for the State Opposite Party No. 1 and Sri Ratnesh Chandra, Advocate alongwith Ms. Mansi Singh, learned counsel for the respondent no. 2 i.e. Lucknow Development Authority.
2. The instant application under Section 482 Cr.P.C. has been filed with a prayer to quash the Charge Sheet of the Case Crime No. 8/2012, under Section 447 I.P.C., Police Station Mahanagar, District Lucknow pending before the learned Additional Chief Judicial Magistrate-IV, Lucknow. Further, in the rejoinder affidavit, summoning order dated 15.05.2012 has also been challenged alongwith the entire proceedings in pursuance thereof.
3. On 04.01.2024, a Co-ordinate Bench of this Court has passed the following order:
“1. Heard Sri Sudeep Seth, learned Senior Advocate, assisted by Sri Tanveer Ahmad Siddiqui and Sri Amit Jaiswal, learned counsel for petitioner and Sri Aniruddh Kumar Singh, learned AGA-I for the State as well as Sri Ratnesh Chandra, learned counsel for opposite party no. 2.
2. Learned counsel for the petitioner has vehemently submitted that the investigation has not been conducted by the police properly inasmuch as the petitioner departed from Lucknow (India) to Jeddah (Saudi Arabia) on 19.04.2012 and returned from there on 16.05.2012 as copy of passport has been enclosed as Annexure No. 9 to the petition, which indicates those facts. However, the statement of the petitioner is said to have been recorded by the police on 22.04.2012 indicating therein that the petitioner appeared before the police agency and recorded his statement at Lucknow. Sri Seth, learned Senior Advocate, has stated that this cannot be possible in any manner that a person concerned is at abroad from 19.04.2012 to 16.05.2012 but has recorded his statement on 22.04.2012. The specific recital to this effect has been given not only in the petition but also in the rejoinder affidavit, which was filed on 30.10.2023 to the counter affidavit of the LDA. In the rejoinder affidavit, typed copy of the case diary has been enclosed, which clearly shows that statement of the petitioner has been recorded at Lucknow on 22.04.2012.
3. On being confronted the learned AGA as to how statement of the petitioner could have been recorded at Lucknow on 22.04.2012 when he was out of India from 19.04.2012 to 16.05.2012, learned AGA prays for and is granted two weeks and no more time to file counter affidavit/ short counter affidavit replying the contents of the petition as well as of the rejoinder affidavit.
4. It is expected that copy of counter affidavit/ short counter affidavit shall be provided to the learned counsel for the petitioner on or before 20.01.2024. Thereafter, a week's time is given to learned counsel for the petitioner to file rejoinder affidavit.
5. List on 31.01.2024 within top ten cases.
6. It is made clear that this case shall not be adjourned on the next date.
7. Interim order, if any, shall continue till the next date of listing.”
4. Despite the aforesaid order, learned A.G.A.-I for the State has not filed counter affidavit till date, as such, this Court has no other option but to proceed further for final argument.
5. Learned Senior Counsel for the applicant submitted that the applicant was one of the Director of the Company e-Construction Solutions Pvt. Limited situated at e-Chamber, near ISRO Space Center, Kursi Road, Lucknow which was duly registered under the Companies Act, 1956. The said company consisted of three Directors including the applicant and the other two directors of the company, namely, Mr Qazi Azmal Husain S/o Qazi Akhtar Husain and Mr Altaf Husain S/o Mr Ashfaq Husain.
6. Learned Senior Counsel further submitted that the said company i.e. e-Construction Solutions Pvt. Ltd. purchased a piece of land measuring about 7074 sq. feet from one Mr. Shyam Kapoor S/o Mr. N.N
AI
A charge under Section 447 I.P.C. cannot be sustained without prior service of notice under Section 441 I.P.C., and the court has the authority to quash proceedings that are legally defective or cons....
The court emphasized that civil disputes should not be converted into criminal cases, and found no evidence of criminal wrongdoing by the applicants, leading to the quashing of the charge-sheet.
A criminal complaint based on essentially civil disputes, particularly where no prima facie case exists, can be quashed to prevent abuse of legal processes.
The pendency of a civil suit does not affect the criminal proceedings, and both can proceed simultaneously. The Court also emphasized the limited scope of interference at the stage of quashing charge....
Cheating and forgery – A bonafide criminal prosecution cannot be quashed at threshold.
Attempt to Murder - Court while hearing the matter under Section 482 of Cr.P.C. at initial stage of trial, cannot examine and genuineness of the statement, allegation made in FIR.
Power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires court to be cautious. It casts an onerous and more diligent duty on court.
(1) If a prima facie case is made out disclosing ingredients of offence alleged against accused, Court cannot quash a criminal proceeding.(2) Cognizance of offence – Magistrate can ignore conclusion ....
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