Court No. - 72
Case :- APPLICATION U/S 482 No. - 39151 of 2017 Applicant :- Khavar Aalam And 10 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sheikh Obaidullah Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Sheikh Obaidullah, learned counsel for the applicants and learned AGA for the State. Service on opposite party no.2 is complete, however, none appears on behalf of the said opposite party.
2. The present 482 Cr.P.C. application has been filed to quash the cognizance order dated 04.05.2017, charge sheet dated 12.02.2017 as well as the entire proceedings of Case No. 1082 of 2017 (State Vs. Khavar Aalam & Ors.), arising out of Case Crime No. 19 of 2017, under Section 188 I.P.C., Police Station- Bilariyaganj, District- Azamgarh, pending in the court of Judicial Magistrate (1st Class), Azamgarh.
3. Learned counsel for the applicants submits that undisputed facts in the present case are that the opposite party no.2 registered an FIR against the present applicants in Case Crime No.19 of 2017, dated 24.01.2017 under Section 188 IPC. Referring to Section 195(1)(a)(i) of Cr.P.C., it has been submitted that no cognizance could have been taken by the learned court below except on a complaint made in that regard by a public servant. There being a clear embargo under the aforesaid provision against taking cognizance except by way of complaint, the FIR lodged, the charge sheet submitted and the cognizance taken is wholly without jurisdiction and in any case, grossly contrary to law.
4. In view of the undisputed position of fact, it is found that the cognizance has been taken against clear and unambiguous legal mandate.
5. Accordingly, the present application is allowed. The cognizance order dated 04.05.2017 as well as the entire proceedings of Case No. 1082 of 2017 (State Vs. Khavar Aalam & Ors.), arising out of Case Crime No. 19 of 2017, under Section 188 I.P.C., Police Station- Bilariyaganj, District- Azamgarh are quashed, leaving it open to the opposite party no.2 to proceed against the applicants in accordance with law, if he so desires.
Order Date :- 29.4.2019 Abhilash