# Gulzar Ahmed and others v. State of U.P. & another

- **Citation:** (2006) 3 ILRA 1289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-19
- **Case number:** Criminal Misc. Application No. 5169 of 2006
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulzar-ahmed-and-others-v-state-of-u-p-another-40707
- **Pages:** 3

## Headnote

Code
of
Criminal
Procedure-S.482Quashing of charge sheet-offence under
section 147/148/149/307 IPC-On the
ground-the matter has been referred to
CBCID
who
had
completed
the
investigation- but the submission of final
report has been stayed by High courtcognizance taken by the C.J.M.-held
proper-entrusting the matter for further
investigation by CBCID-its report cannot
be ground for Quashing the criminal
proceeding.

Held- Para 5

Therefore, on the basis of entrusting the
matter to further investigation or its
report shall not be any ground for setting
the order of cognizance or quashing the
criminal
proceedings.
Therefore,
the
prayer
for
quashing
the
criminal
proceedings and the impugned orders
dated 14.9.05 and 28.2.06 is refused.

## Text

1288 INDIAN LAW REPORT ALLAHABAD SERIES [2006
under Rule 285-H as also the order
confirming the auction in favour of the
respondent no.6 dated 4.1.99 is quashed.

38. The writ petition succeeds and is
allowed. Since we have found the auction
proceedings to be in violation of law,
therefore, the same also stands set aside.
The respondent no.6 dated 4.1.99 is
quashed.
39. However, before parting with the
case we would observe that the petitioner
should
immediately
approach
the
respondent bank and negotiate to clear all
the entire dues out standing against the
petitioner so that the petitioner's property
may again not receive the same fate at the
hands of the respondents as has happened
in the past. However, in the event the
petitioner fails to clear all the dues then it
shall be open to the respondent bank to
recover the amount keeping in view of the
law referred to herein above in the case of
Ekbal Nasir Usmani Vs C.B.I.(supra) and
the other decisions in this respect
pronounced by the Apex Court.

Writ Petition is allowed. No orders
as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.5.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Application No. 5169 of
2006

Gulzar Ahmed and others
...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri V. P. Srivastava
Alpana Dwivedi

Counsel for the Opposite Parties:
A.G.A

Code
of
Criminal
Procedure-S.482Quashing of charge sheet-offence under
section 147/148/149/307 IPC-On the
ground-the matter has been referred to
CBCID
who
had
completed
the
investigation- but the submission of final
report has been stayed by High courtcognizance taken by the C.J.M.-held
proper-entrusting the matter for further
investigation by CBCID-its report cannot
be ground for Quashing the criminal
proceeding.

Held- Para 5

Therefore, on the basis of entrusting the
matter to further investigation or its
report shall not be any ground for setting
the order of cognizance or quashing the
criminal
proceedings.
Therefore,
the
prayer
for
quashing
the
criminal
proceedings and the impugned orders
dated 14.9.05 and 28.2.06 is refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri V.P. Srivastava, Senior
Advocate assisted by Alpana Dwivedi,
learned counsel for the applicants and the
learned A.G.A.

2. This application has been filed by
the applicants Gulzar, Ikrar, Arif Ali,
Ahmad Ali, Hazi Mustaq Ali Khan,
Mohd. Yaseen alias Jaggu, Mihd. Shakeel
Khan alieas Phool Miyan with a prayer
that the proceedings of case no. 2069 of
2005 State Vs. Gulzar and others arising
out of the charge sheet submitted in case
Crime No. 343 of 2005 under sections
147, 148,149,307 and 302 I.P.C. P.S.
Bhongaon district Mainpuri, pending in
the court of learned C.J.M. Mainpuri and
3All] Gulzar Ahmad V. State of U.P. and another 1289
the order dated 14.9.2005 and 28.2.2006
passed by the learned C.J.M. Mainpuri
may be quashed.

3. It is contended by the learned
counsel for the applicants that in the
present case local police has submitted
charge sheet but the State Government
has referred the matter to the CBCID for
doing further investigation which is
pending.
But
the
order
of
the
Government referring the matter to the
CBCID
for
investigation
is
under
challenge before this court, in Criminal
Misc. in writ petition No. 12719 of 2005,
in which it has been ordered that "till
further orders inquiry by the CBCID may
go on but they will not file any report in
the court." In such a situation no report
has been filed by the CBCID in the court
concerned.
Therefore,
the
aforesaid
criminal proceedings may be quashed.

4. It is opposed by the learned
A.G.A. by submitting that even the report
of the CBCID is submitted in favour of
the applicants, they will have to face the
trial because the learned magistrate
concerned has already taken cognizance
on the police report submitted under
section 173 (2) Cr.P.C.

5. Considering the facts and
circumstanced of this case and the
submissions made by the learned counsel
for the applicants and the learned A.G.A.
and from the perusal of the record, it
appears that in the present case FIR was
lodged by Mohd. Muqeem Khan on
9.6.05 at abourt 11.15 pm. In respect of
the incident which had occurred on 9.6.05
at about 10.30 pm, the FIR was lodged
against the applicants under sections
147,148,149,307 and 302 IPC in case
crime no 343 of 2005 P.S. Bhongaon
district Mainpuri, in the present case one
Shagir Ahmad, Advocate, has been shot
dead by the applicants, the matter was
investigated by the local police and after
collection the material submitted the
charge sheet against the applicants, on the
basis of that charge sheet the learned
C.J.M. Mainpuri has taken cognizance on
14.9.05 and summoned the applicants to
face the trial. Thereafter, at the instance of
the applicants the State of U.P. has
decided
to
entrust
the
matter
for
investigation to CBCID. And the decision
has been communicated to the Director
General of CBCID. vide letter dated
16.11.05. Thereafter on behalf of the
applicants an application dated 27.2.2006
has been moved in the court of the learned
C.J.M. Mainpuri with a prayer that
cognizance order dated 14.9.05 may6 be
recalled or set aside because the matter
has been entrusted to the CBCID for
doing the investigation which is still
pending and N.B.W. issued against the
applicants may also be recalled, but the
same was rejected by the learned C.J.M.
on 28.2.06 the order of the State
Government entrusting the investigation
to the CBCID has been challenged by the
complainant Sri Mohd. Muqeem Khan by
way of filing Criminal Misc. Writ Petition
No. 12719 of 2006 which is still pending.
From the perusal of the orders dated
14.9.05 and 28.2.06 passed by the learned
C.J.M., it appears that the impugned
orders are not suffering from any
illegality or irregularity, "because in any
criminal matter if the cognizance has
been taken by the magist5rate on the
basis of the police report submitted under
section 173(2) Cr.P.C., thereafter the
matter is referred to further investigation
it will not effect the order of cognizance
but the report submitted under section
173(8) Cr.P.C. may be used only for
1290 INDIAN LAW REPORT ALLAHABAD SERIES [2006
corroboration
and
contradiction
purposes, even the report of further
investigation shows that the accused has
not committed alleged offence even then it
will not effect the order of cognizance in
any manner. Therefore, on the basis of
entrusting
the
matter
to
further
investigation or its report shall not be any
ground for setting the order of cognizance
or quashing the criminal proceedings.
Therefore, the prayer for quashing the
criminal proceedings and the impugned
orders dated 14.9.05 and 28.2.06 is
refused.

6. It is further contended by the
learned counsel for the applicant that the
applicants have moved stay vacation
application before this court in writ
petition No. 2719 of 2005. The applicants
are peace loving persons they want to
appear before the court concerned and
they undertake that they shall appear
before the court concerned on or before
10th July, 2006. till then the N.B.W issued
against them maybe kept in abeyance.

7.

However,
is
directed
the
applicants shall appear before the court
concerned on or before 10th July, 2006.
till then the N.B.W. issued against them
shall be kept in abeyance.
---------