Court No. - 49
Case :- APPLICATION U/S 482 No. - 17433 of 2020
Applicant :- Saud Abbasi
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ramesh Chandra Agrahari,Anoop Trivedi (Senior Adv.)
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ramesh Chandra Agrahari, learned counsel for the applicant and Sri Janardan Prakash, learned AGA for the State.
2. This Application U/S 482 Cr.P.C. has been filed on behalf of one Saud Abbasi seeking quashing of the impugned charge- sheet dated 22.02.2020 as well as impugned summoning order dated 09.06.2020 passed in Criminal Case No.3983 of 2020 arising out of Case Crime No.265 of 2019 under Sections 384, 420, 120-B IPC at Police Station-Kotwali, District-Mau pending before the learned court of Chief Judicial Magistrate, Mau.
3. Learned counsel for the applicant submits that a notice was published by the Nagar Palika Parishad, Maunath Bhanjan, Mau for the year 2019-20 (01.04.2019-31.03.2020), and contract was awarded for collection of revenue. It is submitted that three FIRs were lodged on the same date i.e. 27.06.2019, namely, (1) Case Crime No.106 of 2019 at Police Station-Dakshintola, Mau, under Sections 384, 420 IPC against one Mahendra Chauhan and Harinath Yadav, (2) Case Crime No.0235 of 2019 at Police Station-Sarailakhanshi, District-Mau, under Sections 384, 420 IPC against Shivendra Kumar Singh, Samar Bahadur, Ashwani Kumar Singh, Jhinku Singh and third FIR registering Case Crime No.0265 of 2019 at Police Station-Kotwali, Mau under Sections 384, 420 IPC against Padamnath Singh, Makhanchu Yadav and Santosh Kumar.
4. Learned counsel for the applicant submits that admittedly all the named accused persons are employees of the present applicant.
5. It is submitted that on 27.06.2019, Annexure-10, applicant had sent a communication to the Adhyaksh/Executive Officer, Nagar Palika Parishad, Mau, pointing out that he has been granted contract for recovery and he was the highest bidder and was as per the rules helping the Nagar Palika Parishad in recovery, but Superintendent of Police (S.P.) and C.O. (Circle Officer) have lodged FIR by lodging his employees in the custody on the basis of his employees conducting recovery at places other than once marked in the advertisement. It is submitted that copy of this complaint was sent to other officials like Director General of Police etc., but when no action was taken, then he had made another communication with the President/Executive Officer of the Nagar Palika Parishad, Mau on 01.11.2019 (Annexure-12).
6. It is submitted that final report was submitted by the police authorities against the named accused on 07.07.2019, on which cognizance was taken by the concerned C.J.M. on 09.06.2020, as is evident from Annexure-13.
7. Learned counsel for the applicant submits that without there being any reason Superintendent of Police, Mau vide order dated 29.11.2019 directed for re-investigation of the matter and deputed the matter for further investigation to other I.O. than the one, who had investigated the matter earlier, and accordingly, an Application was moved by the concerned designated I.O. to the Chief Judicial Magistrate, District-Mau, which had admittedly granted permission for further investigation and upon further investigation, applicant has been falsely implicated.
8. Learned counsel for the applicant has drawn attention of this Court to a order passed by a co-ordinate Bench of this Court in Application U/S 482 No.14772 of 2020, which has stayed the proceedings pending in the Court of Chief Judicial Magistrate, Mau. Copy of this order dated 07.10.2020 is available on record as Anenxure-23. Placing reliance on such order of a co-ordinate Bench, it is submitted that applicant's case in the present matter is identical and, therefore, it be given same treatment and proceedings before the court of learned Chief Judicial Magistrate, Mau be stayed.
9. Sri Janardan Prakash, learned AGA in his turn submits that there is sufficient material to take cognizance, inasmuch as, witnesses have categorically deposed against the present applicant and his employees that, they were indulging in recovery from places other than designated in the advertisement and which has been specifically allotted to the applicant vide order dated 23.05.2018, Annexure-5.
10. A perusal of the documents annexed by the applicant reveals that there is admission of the applicant himself as is contained in Annexure-12, a communication made by the applicant on 01.11.2019 with the President/Executive Officer, Nagar Palika Parishad, Mau, that contract was awarded for the financial year 2019-20 for collection of parking fees at Taxi Stand. The document on which, lot of reliance has been placed by the applicant i.e. Annexure-5 is in regard to Taxi Stand contract for the year 2018-19. There is a auction notice dated 11.02.2019 enclosed as Annexure-1 with the Application, in which it is mentioned that contract was to be given for collection of parking fees at the temporary Taxi Stands. Even if, it is presumed that the place of the temporary taxi stands remains same as is mentioned in Annexure-5., then also narration in the FIR reveals that collection was not made by the employees of the applicant from the designated temporary taxi stands, which were subject matter of the auction notice, but from places other than the temporary taxi stand.
11. In the first FIR registered at Police Station-Dakshintola, it is clearly mentioned that recovery was made in front of house of Dulare Yadav of Matlupur, where fees was recovered on the Azamgarh-Mau main road. Similarly, in FIR registered at Police Station-Sarai Lakhanshi, it is mentioned that recovery was made at Ghazipur, Mau main road, where four persons were making recovery, showing themselves to be employees of Nagar Nigam. In the third FIR registered at Police Station- Kotwali, Mau, it is mentioned that recovery was made at 'Bhiti Nadi Pool ke pas', when such persons, who were making forceful extortion were intercepted by a team of police personnel. None of the places from where accused were apprehended are mentioned in Annexure-5 to be the designated places, where temporary stands were created by the Nagar Palika Parishad.
12. In communication dated 23.05.2018, places mentioned as temporary taxi stand/vehicle stand have been mentioned, where passengers vehicle's stop for the purposes of boarding and de- boarding of passengers authorizing the agent to recover parking charges. The relevant portion reads as under:-
"(1) ब्रम्हस्थथान टटकसस स्टटणड (स्थथायस) (2) अस्थथायस वथाहन स्टटणड भसटस, (3) ससनधस कक टस बहरसपकर (4) बहथादरगगज ररड, (5) सहथादतपकरथा-आजमगढ मरड (6) सलथाहथाबथाद मरड, (7) ममजथारहथादसपकरथा, (8) मतललपकर मरड (9) ससकमटयथा मरड मनकट हनकमथान मननदर, (10) मणडस ससमममत कक पथास उपररक अस्थथायस वथाहन स्टटणड कक सम्बनध मम ठसकक दथार कर स्पष मनदरमशत मकयथा गयथा हट मक यमद उक स्थथान पर गथामडयथाग रकतस हट तथथा सवथारस चढथातक उतथारतक हह तर पथामकर ग शकलक बसलल करगक,करई बकररयर नहह लगथायकगक। ठसकक दथार कक दथारथा उपररक स्थथानन पर अपनक वसललसकतथारओ सक पथामकर ग कक वसललस कक जथातस हट। वसललसकतथारओग कथा फरटर पहचथान व पतथा भस मदयथा गयथा हट,जर सकलभ सगदभर हकतक पकमषित हट।"
13. Thus, it is evident that onus was on the applicant to demonstrate that the places from where employees of the petitioners were apprehended, thus, making applicant liable to be impleaded as an accused by invoking provisions contained in Section 120-B IPC or the designated places, which can only be determined during the evidence in a trial and not otherwise as mentioned above.This aspect has not been presented before a co-ordinate Bench of this Court, when the matter was placed before that Court.
14. However, a perusal of the material available on record reveals that, there is material on record to corroborate the contents of the charge-sheet and when this material was not placed before the court concerned, then no parity can be sought in the matter of grant of similar relief.
15. In case of International Advanced Research Centre For Powder Metallurgy and New Materials (ARCI) and others Vs. Nimra Cerglass Technic Private Limited and another, (2016) 1 SCC 348, it is held that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State, should refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under section 482 Cr.P.C., should not be exercised to stifle a legitimate prosecution. The power under Section 482 Cr.P.C. to be used sparingly only in rare cases. It is further held by exercising inherent jurisdiction under section 482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court.
16. In view of such facts, when parameters for quashing of a charge-sheet or the proceedings are already well established as per the law laid down in case of State of Haryana and others Vs. Bhajan Lal and others; 1992 SCC (Cri) 426. and International Advanced Research Centre for Powder Matallurgy and New Materials (ARCI) and others Vs. Nimra Cerglass Technics Private Ltd. and another; (2016) 1 SCC 348, I do not find any ground to quash the charge-sheet as has been sought by the applicant so also the consequential summoning order. Application fails and is dismissed.
Order Date :- 29.7.2021 Ashutosh