# Mohammad Talha & Ors v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-29
- **Case number:** Criminal Misc. Application U/S 482 No. 10522 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-talha-ors-v-state-of-u-p-anr-50005
- **Pages:** 5

## Headnote

G.A., Sri Abhijeet Mukherji (State Law
Officer)

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 323, 332, 336, 352, 395, 427,
435, 504, 506 & 120B - Criminal Law
(Amendment) Act, 1932 - Section 7 - The
Prevention of Damage to Public Property
Act, 1984 - Section 3/4 - Constitution
guarantees to every citizen is the right to
protest peaceably and without arms - no
sanction to unlawful assemblies that
indulge in rioting and violence as a means
to vindicate their rights, or to convey their
point of view - democratic rights have to
be exercised in a lawful manner, so that
order in society, which sovereignty has to
uphold at all costs, is not lost.(Para -7)

Widespread protest in the country relating to
the Citizenship (Amendment) Act, 2019, the
National Register of Citizens3 and Citizenship
(Amendment) Bill, 20194 - Rampant rioting -
assault on public officials - both uniformed and
of civil administration - besides members of the
public - destruction of property - both of
government and public - continued over a
stretch of about four hours - efforts were made
at different points of time to restore order and
peace - enough opportunity for a locus
poenitentiae was given - rioters persisted in
their violent course - did not relent, until much
damage had been done to public property -
injury inflicted to different sections of the
society. (Para -2,7)

HELD:-Case relates to widespread incidents
of violation of public order in the name of
protest against a particular or more than one
Bills introduced in Parliament. Charge against
applicants may be true, but the case diary's
material is subject to trial testing, and the
Court cannot test it under Section 482 of the
Code. Court cannot exercise jurisdiction under
Section 482 of the Code to quash proceedings
and nip this prosecution in the bud. (Para -
7,8,9)

Application u/s 482 Cr.P.C. rejected. (E-7)

## Text

70 INDIAN LAW REPORTS ALLAHABAD SERIES
submission may not hold good for the
reason that the power to be exercised by the
authority in deciding complaints Under
Section 31 of the Act is quasi- judicial in
nature which is delegable provided there is
a provision in the statute. As already
observed, Section 81 of the Act empowers
the authority to delegate its power and
functions to any of its member, by general
or special order."

12. The authority as indicated in the
judgment has reference to Section 31 of
the
Real
Estate
(Regulation
and
Development) Act, 2016 regarding filing
of complaints with the authority or the
adjudication officer. The term 'authority'
has been defined under section 2(i) to
mean the Real Estate Regulatory Authority
Established under section 20(1) of the Act.

13. In view of aforesaid judgments,
particularly Newtech Promoters (supra) it
is evident that the authority therefore
exercises quasi-judicial powers and would
thus come within the term of tribunal as
envisaged under Article 227 of the
Constitution of India due to which petition
against the said authority would be
maintainable under Article 227 of the
Constitution of India.

14. In view of aforesaid fact,
preliminary objection raised is rejected.

15. Learned counsel for petitioner has
submitted that the petitioner had filed the
aforesaid complaint case which has been
decided
on
22.03.2022
whereafter
execution of the sale has been required by
filing of an application. It is submitted that
in the meantime the authority itself has
framed standard operating procedure on
02.09.2020 which is not being adhered to.
As such, it is submitted that execution
order is required to be made in terms
thereof.

16.
Upon
consideration
of
submissions
advanced
by
learned
counsel for petitioner, opposite party
no.1
i.e.
Real
Estate
Regulatory
Authority,
Rajya
Niyojan
Sansthan,
Naveen
Bhavan,
Kalakankar
House
Road, Old Hyderabad, Lucknow Uttar
Pradesh is directed to ensure execution
of order dated 22.03.2022 filed in
Complaint No.LKO162/08/57523/2020,
Anupma
Sinha
Versus
M/s
Ansal
Properties and Infrastructure Limited
passed
by
Real
Estate
Regulatory
Authority, Rajya Niyojan Sansthan in
terms of its standard operating procedure
dated 02.09.2020 in case there is no
other legal impediment.

17. Benefit of this order shall be
available
only
in
case
petitioner
cooperates in early conclusion of the
application/trial.

18. With the aforesaid direction, the
petition stands disposed of.
----------
(2023) 4 ILRA 70
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Misc. Application U/S 482 No. 10522 of
2023

Mohammad Talha & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Vijay Kumar Mishra
4 All. Mohammad Talha & Ors. Vs. State of U.P.& Anr.
71
Counsel for the Opposite Parties:
G.A., Sri Abhijeet Mukherji (State Law
Officer)

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 323, 332, 336, 352, 395, 427,
435, 504, 506 & 120B - Criminal Law
(Amendment) Act, 1932 - Section 7 - The
Prevention of Damage to Public Property
Act, 1984 - Section 3/4 - Constitution
guarantees to every citizen is the right to
protest peaceably and without arms - no
sanction to unlawful assemblies that
indulge in rioting and violence as a means
to vindicate their rights, or to convey their
point of view - democratic rights have to
be exercised in a lawful manner, so that
order in society, which sovereignty has to
uphold at all costs, is not lost.(Para -7)

Widespread protest in the country relating to
the Citizenship (Amendment) Act, 2019, the
National Register of Citizens3 and Citizenship
(Amendment) Bill, 20194 - Rampant rioting -
assault on public officials - both uniformed and
of civil administration - besides members of the
public - destruction of property - both of
government and public - continued over a
stretch of about four hours - efforts were made
at different points of time to restore order and
peace - enough opportunity for a locus
poenitentiae was given - rioters persisted in
their violent course - did not relent, until much
damage had been done to public property -
injury inflicted to different sections of the
society. (Para -2,7)

HELD:-Case relates to widespread incidents
of violation of public order in the name of
protest against a particular or more than one
Bills introduced in Parliament. Charge against
applicants may be true, but the case diary's
material is subject to trial testing, and the
Court cannot test it under Section 482 of the
Code. Court cannot exercise jurisdiction under
Section 482 of the Code to quash proceedings
and nip this prosecution in the bud. (Para -
7,8,9)

Application u/s 482 Cr.P.C. rejected. (E-7)
(Delivered by Hon'ble J.J. Munir, J.)

This is an application under
Section 482 of the Code of Criminal
Procedure, 19731, seeking to quash the
entire proceedings of Criminal Case No.
(R) 6205 of 2020 (Computerized Criminal
Case No. (C) 605/2020), State v. Aasif
Chandan and others (arising out of Case
Crime No. 246 of 2019), under Sections
323, 332, 336, 352, 395, 427, 435, 504, 506
and 120B of the Indian Penal Code, 1860,
Section
7
of
the
Criminal
Law
(Amendment) Act, 1932 and Section 3/4 of
the Prevention of Damage to Public
Property Act, 1984, Police Station Dakshin
Tola, District Mau, pending the Court of
the Chief Judicial Magistrate, Mau.

2. Heard Mr. Vijay Kumar Mishra,
learned Counsel for the applicants and Mr.
Shashi Shekhar Tiwari, learned Additional
Government Advocate along with by Mr.
Abhijeet Mukherji, learned State Law
Officer appearing on behalf of the State of
Uttar Pradesh

3. A First Information Report2 was
lodged by Nihar Nandan Kumar, Station
House Officer, Police Station Dakshin Tola,
District Mau, regarding an incident dated
16.12.2019
in
the
aftermath
of
the
widespread protest in the country relating
to the Citizenship (Amendment) Act, 2019,
the National Register of Citizens3 and
Citizenship (Amendment) Bill, 20194. The
FIR reported that on 16.12.2019, at half
past two in the afternoon, a large multitude
of people, who were 900-1000 strong,
congregated at a certain Mirzahadipura.
They were protesting against the NRC and
the CAB They were shouting slogans and
proceeded to the Mirzahadipura crossing.
They shouted slogans there and obstructed
public streets. Some of them proceeded
72 INDIAN LAW REPORTS ALLAHABAD SERIES
again to the crossroads, where some others
joined. The congregation of these protestors
was addressed by the District Magistrate,
the Superintendent of Police, the Additional
Superintendent
of
Police,
the
City
Magistrate and other administrative officers
present, but the mob, which has been
described as those of rioters, were not
prepared to heed counsel. There were also
efforts made by other respectable citizens
of District Mau, including Imams of
mosques and other police officers, but to no
avail. The aggressive members of this
unlawful assembly, according to the FIR,
abused the Chief Minister, the Prime
Minister, the Superintendent of Police and
the other administrative officers. They
exhorted
members
of
the
unlawful
assembly to do the police and the
administrative officers to death. At this
juncture, the members of the unlawful
assembly turned violent and assaulted the
Police, the administrative officials and
other members of the public with an intent
to kill. They hurled brickbats and opened
fire with illicit weapons on the Police and
the administrative officers with an intent to
kill. They also hurled petrol bombs. It is
reported that during this period of time,
some sniping was also done, employing
illicit weapons from rooftops and brickbats
were also hurled. All these acts of violence
led to public order being torn asunder. The
shopkeepers in the neighbourhood pulled
down their shutters and the passers-by,
including the journalists et cetera made
good
their
escape,
abandoning
their
motorcycles and vehicles. The rioters, who
are said to be about 600-700 strong, at this
juncture, could not be controlled by any
means. On the orders of the District
Magistrate, the members of the unlawful
assembly were warned for 10-15 minutes
on loud-hailers. However, when nothing
worked to restore order, the Police resorted
to a light lathi-charge. At this stage, the
rioters hurling bombs, brickbats and also
taking potshots from their illicit weapons,
escaped through different routes. They set
afire dozens of motorcycles belonging to
members of the public and the police force,
besides government vehicles, that were
four-wheelers. These were badly damaged.
Finally, under the orders of the District
Magistrate, in order to control the still
ongoing rioting, tear gas shells, numbering
about 50, were lobbed, besides chilly
bombs. Thereupon, all the rioters escaped
towards Rampur Chakiya. This violence
had continued up to 06:30 in the evening.
The FIR mentions that the rioters who were
attacking the police force and indulging in
acts of incendiarism were identified by
police personnel present. Those identified
have been named in the F.I.R.

4. The Police, after investigation,
submitted a charge-sheet against 44 of the
named accused, whereas another 55 are
said to be absconding. The applicants, who
have been charge-sheeted, are named in the
FIR.

5. Learned Counsel for the applicants
has argued that the first informant in this
case is the Station House Officer of Police
Station Dakshin Tola, whereas a number of
his subordinates are involved in the teams
subsequently set up to investigate, which
vitiates the resultant charge-sheet. It is next
submitted that none of the witnesses who
have seen the various video-clips of rioting
that were captured as the violence was on
have
identified
the
applicants.
The
applicants are students, who ought to be
shown some leniency instead of being
involved in a case of mob violence, giving
rise to heinous offences that would be
charged
in
consequence.
It
is
also
submitted that the applicants have already
4 All. Mohammad Talha & Ors. Vs. State of U.P.& Anr.
73
been granted the indulgence of bail, which
shows their doubtful complicity.

6. It is argued by Mr. Shashi Shekhar
Tiwari, learned A.G.A. that the prosecution
case that has been reported in the F.I.R.
carries a very natural description of the
offence, where, initially, 900-1000 people
are said to be part of the unlawful
assembly, who perpetrated all this violence
and later on, they have been reported to
have thinned down to a figure of 600-700.
After a thorough inquiry, out of this
multitude, 85 named accused have been
reported in the FIR that was lodged on the
day following the incident, with 600
unnamed offenders. It is submitted by Mr.
Tiwari that the applicants being amongst
the 85 named accused out of a mob of 600700 persons, cannot be said to be
implicated without identification. It is next
submitted that it is not just that the
applicants have been identified by the
Police, but they have been identified by
independent witnesses as well, who number
more than 20. There is, thus, no reason to
doubt the applicants' complicity, in the
submission of Mr. Tiwari. In addition, it is
submitted that there are video-clips that are
part of the case diary, where the entire
events of the fateful day have been
captured, which would render anything of a
doubt about the identity of the applicants
beyond pale of controversy.

7. Upon hearing learned Counsel for
the applicant and learned A.G.A. for the
State, this Court is of opinion that the
present case relates to widespread incidents
of violation of public order in the name of
protest against a particular or more than
one Bills introduced in Parliament. What
the Constitution guarantees to every citizen
is the right to protest peaceably and without
arms. There is no sanction to unlawful
assemblies that indulge in rioting and
violence as a means to vindicate their
rights, or to convey their point of view. It is
not that democracy and sovereignty are at
crossroads. It is only that democratic rights
have to be exercised in a lawful manner, so
that order in society, which sovereignty has
to uphold at all costs, is not lost. Here, what
appears from the materials collected in the
case diary is that there was rampant rioting,
where there was assault on public officials,
both
uniformed
and
of
the
civil
administration, besides members of the
public. There was also destruction of the
property, both of the government and the
public. The episode in which all that
happened was not a momentary one. It
continued over a stretch of about four
hours, during which, efforts were made at
different points of time to restore order and
peace, if the FIR version were to be
accepted. To persuade the rioters to change
course, enough opportunity for a locus
poenitentiae
was
given.
The
rioters
persisted in their violent course and did not
relent, until much damage had been done to
public property and injury inflicted to
different sections of the society.

8. This Court does not mean to say
that the charge against the applicants are
true. There are materials in the case diary,
which indicate that these could be true. All
this is a subject matter to be tested at the
trial. The kind of material that there is in
the case diary is not such which this Court,
in exercise of jurisdiction under Section
482 of the Code, can test.

9. In the circumstances, this Court
does not find the present case to be one
where we ought to exercise our jurisdiction
under Section 482 of the Code to quash
proceedings and nip this prosecution in the
bud.
74 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In the result, this application fails
and consequently, stands rejected.
----------
(2023) 4 ILRA 74
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2023
BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Misc. Application U/S 482 No. 11914 of
2022

Man Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shiv Sagar Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - The Negotiable instruments Act,
1981 - Section 138 , Proviso (c) of Section
138 N.I. Act - pre-condition for invoking
Section 138 by giving a notice to the
drawer of the cheque - before filing a
complaint under Section 138 of the Act
which is a mandatory requirement - Once
it is stated in the complaint that notice
has been sent by the registered post to
the address of the drawer, the due service
has to be presumed in view of Section 27
of the General Clauses Act read with
Section 114 of the Evidence Act - at the
time of taking cognizance of the complaint
under Section 138 of the Act, the Court is
to only prima facie satisfy that a case
under said section is made out and the
mandatory
requirement
have
been
complied with.(Para 10,11)

(B) The general clauses act, 1897 -
Section 27 - meaning of service by post -
service of notice has been effected when it
is
sent
to
the
correct
address
by
registered post. (Para 10)
(C) Indian Evidence Act, 1872 - Section
114 - when a notice is sent by registered
post and is returned with a postal
endorsement refused or not available in
the house or house locked or shop closed
or addressee not in station, due service
has to be presumed .(Para 10)

Cheque issued by accused - to discharge a legal
debt - returned unpaid - dishonoured - evaded
legal notice send through registered post -
complainant filed a complaint - held by trial
court - while passing impugned order - notice
dated 07.07.2018 and 27.07.2018 will be
deemed to have been issued within 30 days of
dishonour of cheque in dispute. (Para -3,12)

HELD:-No infirmity in the impugned order
passed by trial court.(Para - 13)

Petition dismissed. (E-7)

List of Cases cited:

C.C. Alavi Haji Vs Palapetty Muhammed &
anr.,(2007) 6 SCC 555

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Shri Shiv Sagar Singh
learned counsel for the petitioner as well as
learned A.G.A. for the State.

2. Notices to respondent no. 2 are
dispensed with.

3. Through this petition, the petitioner
has challenged the impugned order dated
11.10.2021 passed by the Presiding Officer,
Additional Court, Saharanpur in complaint
case No. 877 of 2018 (Praveen Singh Vs.
Man Singh), under Section 138 of N.I. Act,
P.S. Sadar Bazar, District Saharanpur
whereby the petitioner has been summoned
for facing trail for an offence under Section
138 N.I. Act with regard to dishonor of
alleged cheque dated 28.03.2018.