Court No. - 49
Case :- APPLICATION U/S 482 No. - 9556 of 2018 Applicant :- Naushad Ali Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kumar Anish Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant, Sri N.K. Pandey, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the impugned order dated 07.03.2018 passed by the Chief Judicial Magistrate, Saharanpur in Case No. 377 of 2018 (State Vs. Naushad Ali and another), arising out of Case Crime No. 356 of 2004, under Sections- 419, 420, 467, 468, 471 I.P.C., Police Station- Deoband, District- Saharanpur.
Learned counsel for the parties submits that in the case of co- accused namely Ziauddin Ansari Application U/S 482 No. 8443 of 2018 has been disposed of by this Court on 15.03.2018 by the following order:
"Supplementary affidavit filed today, is taken on record. Heard learned counsel for the parties and perused the record.
The present application has been filed against the order dated 07.03.2018 passed by the Chief Judicial Magistrate, Saharanpur in Case No. 377 of 2018 (Stat Vs. Naushad Ali and another), arising out of Case Crime No.
356 of 2004, under Sections- 419, 420, 467, 468, 471 I.P.C., Police Station- Deoband, District- Saharanpur by which the discharge application filed by the present applicant has been rejected.
The short submission raised by learned counsel for the applicant is that while deciding the discharge application, amongst others, the learned Magistrate had first held that the applicant is a public servant. The Magistrate has however, refused to examine whether the mandatory sanction under Section 197 Cr.P.C. had been obtained against the applicant before institution of the criminal prosecution, in view of the seriousness of the offence alleged against the applicant.
Learned counsel for the applicant submits that on one hand, civil proceedings initiated against the applicant on the same allegations have culminated in the exoneration of the applicant from the charges of embezzlement, on the other hand, in view of the finding of the learned Magistrate that the applicant is a public servant, the prior sanction under Section 197 Cr.P.C. was mandatory.
Learned counsel appearing of the opposite party no. 2 states that the applicant is not a public servant inasmuch as he is an elected Chairman of the Nagar Palika Parishad. Reference has also been made to certain judgments in support of objection raised by the learned counsel for the applicant.
It has also been contended by learned counsel for the parties that there are other aspects of the matter which have been decided by the learned Magistrate.
In view of the findings recorded by the learned Magistrate that the applicant is a public servant, the further observation made by the learned Magistrate that the bar of Section 197 Cr.P.C. does not apply, is not a correct reasoning. The provisions of Section 197 Cr.P.C. are mandatory. Once it was held that the applicant is a public servant, prosecution could not have been lodged or allowed to proceed with except with a prior sanction as contemplated under Section 197 Cr.P.C.
To that extent, the order passed by the learned Magistrate cannot be sustained. It is set aside. It is also noticed that earlier this Court had vide its order dated 28.11.2017 passed in Application U/S 482 No. 39860 of 2017, disposed of the same with the following observations:
"From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the proceedings of the aforementioned case and the chargesheet is refused.
However, it is directed that if the applicant appears and surrenders before the court below within 45 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and Another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. Lal Kamlendra.
For a period of 45 days from today or till the applicant surrenders and applies for bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
It is directed that the trial of the case may be expedited within a period of one year. With the aforesaid directions, this application is finally disposed of."
In view of the above, learned counsel for the applicant submits that the applicant had rightly filed the discharge application through counsel as the applicant had been permitted by this Court.
However, Sri Pandey, learned counsel for the opposite party points out that the applicant has yet not surrendered before the trial court.
Accordingly, while setting aside the order dated 07.03.2018, the matter is remitted to the Chief Judicial Magistrate, Saharanpur that in the event the applicant surrenders before the court below within a period of ten days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. Also, at that stage the applicant may press his discharge application afresh on such grounds or pleadings as he may be advised. The opposite party shall have a right to object to such discharge application on such ground as may be available to them including the ground that the applicant is not a public servant.
Upon such application being pressed by the applicant, the same may be decided de novo/afresh without being prejudiced by the observations made in the impugned order. For a period of thirty days, no coercive measure shall be taken against the applicant.
The present application is allowed with the aforesaid observation."
In view of the facts of the present case being similar to that in the case of co-accused Ziauddin Ansari, the present 482 Cr.P.C. application is disposed of on the same terms and conditions.
However, the present applicant will have 15 days time from today to surrender and apply for bail.
Order Date :- 23.3.2018 A. Singh