Court No. - 72
Case :- APPLICATION U/S 482 No. - 17147 of 2019 Applicant :- Manju Lata Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Akhilendra Yadav,Diwan Saifullah Khan Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the parties.
2. The present 482 Cr.P.C. application has been filed to quash the cognizance order dated 01.10.2018, charge sheet dated 12.09.2018 submitted in Case Crime No. 209 of 2017, under Sections- 147, 302, 506, 384, 120-B I.P.C., Police Station- Fariha, District- Firozabad.
3. Learned counsel for the applicant submits that the applicant has been completely falsely implicated and there is no material collected during investigation as may support the accusation of offence committed by the applicant under Section 302 or 120-B IPC. Therefore, he would submit, though the applicant was named in the FIR, the eye-witnesses listed in the charge sheet namely Noore Hasan and Pappu nowhere named the applicant as the person last seen with the deceased or being involved in administering any poisonous substance to the deceased. Second, it has been submitted that, only the applicant has been charged under section 120-B IPC, which is impossible and impermissible. For accusation of criminal conspiracy, there must exist more than one person. However, the charge sheet was submitted only against the applicant and cognizance has also been taken against the applicant under Section 120-B IPC. Then, it has been submitted, the learned court below has passed a cryptic order which has allowed the aforesaid mistakes in the charge sheet to remain unnoticed. The learned court below has not examined the case diary material before taking cognizance. Even otherwise, it has been submitted that the cognizance has been taken not of the offence but of the accused which is contrary to law.
4. Sri Ankit Srivastava, learned AGA, on the other hand submits that, at this stage of the proceedings (in the present application), it is not safe to conclude whether there exist any case diary material in support of accusation made against the applicant. However, he could not deny that the accusation of offence under Section 120-B IPC must arise in the event of conspiracy between more than one person. Therefore, learned AGA could not meet the defect pointed out in the cognizance order.
5. In view of the above, without entering into the merits of the submissions advanced by learned counsel for the applicant that there does not exist any case diary material to support the allegation, even otherwise, at present, it appears that the learned court below has erred in taking cognizance of the accused and not of the offence.
6. Even, if that defect be ignored, it is difficult to sustain the cognizance order, inasmuch as it does appear to be a cryptic order, keeping in mind the serious nature of the offence alleged, the non-application of mind on part of the learned court below stands further made out that the cognizance of offence of conspiracy has been taken only against the applicant and not against other accused. The same is clearly not permissible.
7. In view of the observations made above, no useful purpose would be served in keeping the present application pending any further or calling for a counter affidavit as that would only result in delaying the proceedings, first awaiting service of notice, then completion of pleadings. On the other hand, in view of the clear legal nature of objections which are substantiated, the present cognizance order dated 01.10.2018 may not be sustained. It is accordingly set aside and the matter is remitted to the learned court below to pass a fresh order being mindful of the nature of accusation made and the case diary material brought by the prosecution. The exact nature of the charge, would remain to be examined at a subsequent stage.
8. Though, only the applicant is before this Court, keeping in mind the fact that the proceedings are yet to commence, at present, the cognizance order dated 01.10.2018 is set aside in entirety with a direction to the learned court below to pass a fresh order as expeditiously as possible, preferably within a period of six weeks from the date of production of a certified copy of this order.
9. The present application stands disposed of accordingly.
Order Date :- 30.4.2019 Abhilash