# Aijaz Gaffar v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 52
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Criminal Misc. Application No.7093 of 2006
- **Bench:** Saurabh Shyam Shamshrey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aijaz-gaffar-v-state-of-u-p-anr-44819
- **Pages:** 5

## Headnote

Law-Criminal
Procedure
Code, 1973 - Complaint Case - Section
482, Cr.P.C. - Defence of accused cannot
be considered by the Court at this stage
being a disputed question of facts. No
illegality in issuing summons against the
applicant specially when the complaint
has been filed by a public servant while
discharging his official duty and there
are sufficient ground to proceed against
the applicant in the case based on
material
available
before
the
court
below. (Para 12 & 13)

B. Special Act and General Act - Both
would apply. The Magistrate can take
cognizance for the offence under Indian
Penal Code on the basis of police report
without
awaiting
the
receipt
of
complaint that can be filed by the officer
concerned
for
taking
cognizance
regarding contravention of provisions of
the Special Act.

FIR alleging offence under the Indian Penal
Code, 1860. Arising from one occurrence,
complaint lodged alleging commission of offence
under the Factories Act, 1948 - Sections 92 read
with Sections 31 & 29, read with Rules 56, 55A
and 107 (2) of the Rules of 1950-FIR lodged
alleging offence under Section 304A IPC. The
FIR is lodged under Section 304A IPC for
"causing death by negligence" by the wife of
deceased employee and the complaint has been
filed against the applicant under Factories Act for
not observing requisite safety measures at the
factory. (Para 15)
Application u/s 482 Cr.P.C rejected (E-3)

Case law relied/discussed: -

## Text

52 INDIAN LAW REPORTS ALLAHABAD SERIES

7. In the considered view of this
Court this matter falls in category no.(7)
mentioned hereinabove. This Court finds
reason to hold that the complaint in
question is inspired by malice and the
version contained therein is full of high
improbabilities and the continuation of
the proceedings on that basis is likely to
result in abuse of court's process, and
therefore,
the
entire
proceeding
of
complaint in question is liable to be
quashed.

8. In this view of the matter this
application is allowed and the entire
proceedings of complaint in question
against
the
accused-applicants
stand
quashed.

9. A copy of this order be certified
to the lower court concerned forthwith.

9. A copy of this order be certified
to the lower court concerned forthwith.
----------
(2019)11ILR A52

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHREY , J.

Criminal Misc. Application No.7093 of 2006
u/s 482 Cr.P.C.

Aijaz Gaffar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Amit Kumar Srivastava, Sri Ravi Kumar
Pandey.

Counsel for the Opposite Parties:
A.G.A.
A.
Criminal
Law-Criminal
Procedure
Code, 1973 - Complaint Case - Section
482, Cr.P.C. - Defence of accused cannot
be considered by the Court at this stage
being a disputed question of facts. No
illegality in issuing summons against the
applicant specially when the complaint
has been filed by a public servant while
discharging his official duty and there
are sufficient ground to proceed against
the applicant in the case based on
material
available
before
the
court
below. (Para 12 & 13)

B. Special Act and General Act - Both
would apply. The Magistrate can take
cognizance for the offence under Indian
Penal Code on the basis of police report
without
awaiting
the
receipt
of
complaint that can be filed by the officer
concerned
for
taking
cognizance
regarding contravention of provisions of
the Special Act.

FIR alleging offence under the Indian Penal
Code, 1860. Arising from one occurrence,
complaint lodged alleging commission of offence
under the Factories Act, 1948 - Sections 92 read
with Sections 31 & 29, read with Rules 56, 55A
and 107 (2) of the Rules of 1950-FIR lodged
alleging offence under Section 304A IPC. The
FIR is lodged under Section 304A IPC for
"causing death by negligence" by the wife of
deceased employee and the complaint has been
filed against the applicant under Factories Act for
not observing requisite safety measures at the
factory. (Para 15)
Application u/s 482 Cr.P.C rejected (E-3)

Case law relied/discussed: -

1. St. of Guj. Vs Afroz Mohammad (Crl
App.No.224/2019) dated 05.02.2019; 2019
SCC Online SC 132

2. Application u/s 482 No.16700 of 2019
(Imran and 3 ors. Vs St. of U.P. & anr.) order
dated 10.7.2019

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J. )
3 All. Aijaz Gaffar Vs. State of U.P.& Anr.
53

1. Applicant, Manager of a factory
of M/s Calcom Vision Ltd, which is
situated at Surajpur Industrial Area,
Greater Noida has approached this Court
by way of filing present application under
Section 482 Cr.P.C. for quashing the
proceedings of Complaint Case No.1942
of 2005 (State Vs. Aijaz Gaffar) filed
under Section 92 of the Factories Act,
1948, Police Station Surajpur, District
Gautam Budh Nagar, pending before
learned
Chief
Judicial
Magistrate,
Gautam Budh Nagar, UP.

2. One Smt. Geeta Yadav, wife of
Late Vijay Yadav lodged a FIR dated
11.03.2005 (Case Crime No.32/2005),
under Section 304A IPC that her husband
who was working as Engineer with M/s
Calcom Vision Ltd. died on 09.03.2005
within the premises of the factory, due to
negligence of factory management as roof
of the factory which was made of cement
fell down when deceased went to repair
the roof.

3. On 09.03.2005, inspection of the
factory was conducted under Rule 123 of
the UP factories Rules 1950, wherein
multiple defaults were noted under
various provisions of Factories Act, 1948
(hereinafter referred as to 'the Act of
1948') and Uttar Pradesh Factories Rules,
1950 (hereinafter referred as to 'the Rules
of 1950'). Accordingly, Inspection Report
was prepared, shortcomings were noted
under Rule 123, Section 31 Rule 56,
Section 29 Rule 55A, Section 7A, Section
58 Rule 110, Rule 14-D, Rule 107 (2)
Rule 303 (3), Rule 52-A etc. of the Act of
1948 and the Rules of 1950.

4. Additional Director, Factories
UP, NOIDA Region, NOIDA filed
complaint under Section 92 of the Act of
1948 against the petitioner for committing
violation of Sections 31, 29 of the Act of
1948 read with Rules 56, 55A and 107 (2)
of the Rules of 1950, before learned Chief
Judicial Magistrate, Gautam Budh Nagar.

5. The Chief Judicial Magistrate,
Gautam Budh Nagar took cognizance of
the complaint (Complaint No.1948/2005)
on 24.05.2005 and issued summons to the
applicant.
As
the
complainant
and
witnesses
were
public
servant
and
complaint was made under act in the
discharge
of
their
official
duties,
complainant and witnesses were not
examined.

6. Applicant has challenged the
entire
proceedings
arising
out
of
Complaint Case No.1943/2005 before the
Court by way of filing present application
under Section 482 Cr.PC.

7. This Court has passed the
following order on 13.07.2006.

"Heard learned counsel for the
applicant and learned A.G.A.

It is contended by the learned
counsel for the applicants that on the
same allegations which have been made
in the complaint an F.I.R. has been
lodged against the Managing Director.

Issue notice to opposite party
no. 2 returnable within a period of four
weeks

In view of the facts and
circumstances
of
the
case
and
submissions made by the learned counsel
for the applicants and learned A.G.A. the
further
proceedings
in
Criminal
Complaint Case No. 1942 of 2005
54 INDIAN LAW REPORTS ALLAHABAD SERIES
pending in the court of learned C.J.M.,
Gautam Buddh Nagar shall remain
stayed till the next date of listing.

List after 4 weeks for orders."

8. A counter affidavit has been filed
on behalf of respondent No. 2 (Assistant
Director factories UP) denying averments
made in the application as well as
submitted
that
certain
violation
of
statutory norms were found during
inspection of the factory.

9. Shri Ravi Kumar Pandey, learned
counsel appearing on behalf of appellant
submitted that since an FIR has been
lodged against the applicant, therefore, no
complaint under the Factories Act would
be maintainable and further documents
have been filed along with present
application to show that factory had
"Safety and Health Policy" and inspection
was done at the back of the management
of the factory.

10. Per contra, Shri M.P. Singh
Gaur, learned A.G.A. for the State
submitted that complaint was filed after
several irregularities were noticed during
inspection. He further submitted that
learned trial court has rightly taken
cognizance and summoned the applicant.

11. Heard learned counsel for the
parties and perused the material available
on record.

12. Law is well settled regarding the
summoning order passed under Section
204 Cr.P.C., which is reiterated in a latest
judgment passed by Hon'ble Supreme
Court in the matter of State of Gujarat vs.
Afroz
Mohammad
(Crl
Appeal
No.224/2019) dated 05.02.2019 reported
at 2019 SCC Online SC 132 that -

"24. In summoning the accused,
it is not necessary for the Magistrate to
examine the merits and demerits of the
case and whether the materials collected
is adequate for supporting the conviction.
The court is not required to evaluate the
evidence and its merits. The standard to
be adopted for summoning the accused
under Section 204 Cr.P.C. is not the same
at the time of framing the charge. For
issuance of summons under Section 204
Cr.P.C., the expression used is "there is
sufficient ground for proceeding.....";
whereas for framing the charges, the
expression used in Sections 240 and 246
IPC is " there is ground for presuming
that the accused has committed an
offence...". At the stage of taking
cognizance of the offence based upon a
police report and for issuance of
summons under Section 204 Cr.P.C.,
detailed enquiry regarding the merits and
demerits of the case is not required. The
fact that after investigation of the case,
the police has filed charge sheet along
with the materials thereon may be
considered as sufficient ground for
proceeding for issuance of summons
under Section 204 Cr.P.C."

(emphasis supplied)

13. In view of above, there is no
illegality in issuing summon against the
applicant specially when the complaint
has been filed by the public servant while
discharging of his official duties and there
are sufficient ground to proceed against
the applicant in the case based on material
available before the court below. It is also
well settled that defence, if any, cannot be
considered by the Court at this stage
being falls under disputed questions of
facts.
3 All. Aijaz Gaffar Vs. State of U.P.& Anr.
55

14. A co-ordinate Bench of this
Court in a recent judgement in the matter
of "Imran and 3 others vs. State of U.P.
and another passed in Application u/s
482 No.16700 of 2019, dated 10.7.2019"
has dealt with the issue of filing
complaint in Special Act and also lodging
FIR in Indian Penal Code on the same
occurrence, has held in para 35 that :-

"35.
After
evaluating
the
submission advanced by the learned
counsels for the respective parties in the
light of discussion made above as well as
under
the
conspectus
of
judicial
pronouncements made in this regard by
the various High Courts and the Apex
Court, the issues involved in the present
case are answered as follows:-

(i) If the act of accused makes
out a cognizable offence under IPC as
well as an offence under Section 21 of the
MMDR Act 1957, the registration of FIR
under both the enactments is not illegal ,
as there is no bar to investigate the matter
by the police when the cognizable offence
has taken place irrespective of penal
provisions whether under the special
enactment or general law. Since it is well
settled that when there is a conflict
between a special and general law,
indisputably the special enactment will
prevail over the general law , therefore
on account of categorical bar under
Section 22 of the Act 1957, the police
officer cannot submit police report under
Section 173 Cr.P.C. with regard to
offence
under
Mines
&
Minerals(Development & Regulation) Act
1957.

(ii) Despite provisions provided
under section 22 of the the Mines and
Minerals (Development and Regulation)
Act 1957, the police authorities can not
be debarred from tacking action against
the persons for committing theft of sand
and minerals in the manner provided
under the Code of Criminal Procedure.
The ingredients to constitute offence
under
the
Mines
and
Minerals
(Development and Regulation) Act 1957
as well as offence under 378/379, etc. of
Indian Penal Code are different ,
therefore doctrine of double jeopardy is
not attracted. Hence the accused can be
prosecuted simultaneously for one set of
offence under two or more Acts.

(iii) On account of specific
prohibition/bar, as contained in section
22
of
the
Mines
and
Minerals
(Development and Regulation) Act 1957,
accused cannot be prosecuted on the
basis of police report under section 173
Cr.P.C. And can be prosecuted only on
complaint made by the officer concerned
in case of contravention of section 4 of
the Mines and Minerals (Development
and
Regulation)
Act
1957,
but
prosecution of accused on the basis of
police report under section 173 Cr.P.C.
for the offence under Indian Penal Code
is not barred by Section 22 of the Mines
and
Minerals
(Development
and
Regulation) Act 1957.

(iv) As per the provisions
contained in section 22 of the Mines and
Minerals (Development and Regulation)
Act 1957, The Magistrate can not take
cognizance for the offence under the
Mines and Minerals (Development and
Regulation) Act 1957 on the police report
/charge-sheet under Section 173 of The
Criminal Procedure Code, but can taken
cognizance for the offence under Indian
Penal Code , if any on the basis of same
police report without awaiting the receipt
of complaint that can be filed by the
56 INDIAN LAW REPORTS ALLAHABAD SERIES
offcer concerned for taking cognizance
regarding contravention of provisions of
the Mines and Minerals (Development
and Regulation) Act 1957."

(emphasis supplied)

15. In view of above, this
application is also liable to be dismissed
as 'FIR is also lodged against the incident
against the petitioner' is no ground for
quashing of summoning order. The FIR is
lodged under Section 304A IPC which
states that "causing death by negligence"
by the wife of deceased employee and the
complaint has been filed against the
applicant under Factories Act for not
observing requisite safety measures at the
factory.
There
is
no
illegality
in
summoning
order,
therefore,
the
application fails being sans merit.

16. Accordingly, the application u/s
482 Cr.P.C. is dismissed.

17. Interim order stands vacated.
----------
(2019)11ILR A56

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR
 SRIVASTAVA , J.

U/S 482/378/407 No. 7255 of 2019

Smt. Meera Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Satyendra Kumar Maurya

Counsel for the Opposite Parties:
G. A.

A. Criminal Law-Indian Penal Code, 1860 -
Section 406 and 506 IPC- Criminal Breach
of trust- Entrustment- of the amount -
Agreement
to
sell
admitted
and
acknowledged by the applicant - The
moment accused denied to repay the said
amount on his failure to execute the sale
deed, he had misappropriated the amount
in his benefit and the basic ingredients of
offence under Section 406 I.P.C. stood
constituted- (Para 7,8,11).

B.
Criminal
Law-Criminal
Procedure
Code, 1973 - section 482 - Scope- The
charge-sheet along with the material
collected by the police, prima facie
support the allegation contained in the
FIR. No abuse of process of court or any
illegality
made
out
warranting
interference by the Court to quash the
proceedings.

Non-execution of sale deed despite admitted
agreement to sell. Section 406 - Dispute being
criminal and not of civil nature - Intention was
not to execute the sale deed but to obtain
money by inducing the informant to believe
the proposal of execution of sale deed. (Para
12,15,18)
Application u/s 482 Cr.P.C. rejected. (E-3)

List of cases cited :-

1. R. Kalyani Vs Janak C. Mehta & ors.(2009) 1
SCC 516,

2. Mahesh Chaudhary Vs St. of Raj. & anr.
(2009) 4 SCC 439

3. Inder Mohan Goswami Vs St. of U.P. (2012)
SCC 1

4. St. of Haryana & ors. Vs Bhajan Lal &
ors.(1992) Supp (1) SCC 335

(Delivered by Hon'ble Vikas Kuvar Srivastava, J. )

1. The application in hand is moved
under section 482 of Criminal procedure