# Mohd. Deen v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 963
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** J. Application U/S 482. No. 3923 of 2005
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-deen-v-state-of-u-p-anr-50956
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 311 & 482 - Indian Penal
Code, 1860 - Sections 302 & 307 - Indian
Evidence Act, 1872 - Sections 40, 41, 42 &
44 - Application U/s 482 Cr.P.C. - for quashing
the charge-sheet as well as the entire criminal
proceedings - FIR - offence of murder - writ
petition filed challenging the FIR - court issued
964 INDIAN LAW REPORTS ALLAHABAD SERIES
notices and granted order of arrest stay till
conclusion of investigation - Investigation -
during
investigation
applicant
was
never
arrested - however co-accused were arrested
and they were enlarged on Bail - charge-sheet
was filed against them - order of cognizance
against them - Session Trial initiated against coaccused persons - in their trial witnesses were
declared hostile - resulted co-accused persons
were acquitted - thereafter, a charge-sheet was
filed against the applicant - cognizance was
taken - applicant pleaded that with regards to
the FIR and incident there is no difference,
whatsoever, in the chares, evidence and
witnesses were cited in support of prosecution
case in session trial against co-accused persons
are same in applicant case due to which police
is trying to arrest the applicant - court
emphasized that the provisions of the Evidence
Act and precedents including Moosa Vs Sub
Inspector of Police and CBI Vs Ravi Shankar
Srivastava, the Court must be exercised power
under section 482 of Cr.P.C. sparingly and not
to pre-empt trial proceedings - held - the
acquittal of co-accused due to hostile witnesses
does not automatically entitle the applicant to
similar relief - and the trial judge retains the
authority to summon witnesses under Section
311 CrPC - further, previous judgments do not
operate as res judicata in such cases - hence,
grounds which are taken by the applicant are
imaginary and trivial in nature and are not
sustainable in the eyes of law - consequently,
applicant is liable to be dismissed - direction
issued to proceed the trial and conclude
expeditiously within a period of one year.

(Para - 19, 22, 23, 25)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

3 All. Mohd. Deen Vs. State of U.P. & Anr.
963
that the District Magistrate shall be the
Appropriate Authority under Section
17(3)(a) read with 17(3)(b) of the act of
1994. The submission of the learned
counsel for the applicant is that as the
Additional Chief Medical Officer is not the
appropriate authority, he could not have
filed a complaint for any alleged violation
of the provisions of the aforesaid Act and
the trial court could not have taken
cognizance of the complaint which had not
been filed by the appropriate authority.

7. Opposing the submissions, the
learned AGA-I has submitted that the
applicant has the opportunity to defend him
before the trial court and since the
complaint makes out commission of
offences under the Act by the applicant, it
is not a fit case where this Court should
exercise its inherent powers for quashing
the proceedings of the complaint.

8. I have heard the aforesaid facts and
circumstances
of
the
case
and
the
submissions advanced by the learned
counsel for the parties.

9. When the Act of 1994 clearly
provides
that
no
Court
shall
take
cognizance of any offence under the Act
except on a complaint made by the
appropriate authority, the court has no
jurisdiction to take cognizance of any
offence except on a complaint made by the
appropriate authority. There can be no
dispute against the fact that the Additional
Chief Medical Officer is not an appropriate
authority and he has no authority to file a
complaint
for
any
alleged
offence
committed under the provisions of the
aforesaid Act and the Government Order.
Therefore, as the complaint itself was
incompetent, the trial court had no
jurisdiction to take cognizance of the
offences alleged in the complaint and to
summon the applicant for being tried for
the alleged offences.

10. Accordingly, the application is
allowed.

11. The order dated 03.06.2014 as
well as entire proceeding of Case No. 4495
of
2011,
under
Sections
3/23
PreConception
&
Pre-Natal
Diagnostic
Techniques (Prohibition of Sex Selection )
Act, 1994, Police Station Sandila, District
Hardoi, pending in the court of learned
Additional Chief Judicial Magistrate, Court
No. 3, Hardoi, are hereby quashed.
----------
(2024) 3 ILRA 963
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Application U/S 482. No. 3923 of 2005

Mohd. Deen ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Kumar Dhananjay

Counsel for the Respondents:
G.A., Sri Shivesh Mishra

Criminal Law - Criminal Procedure Code,
1973 - Sections 311 & 482 - Indian Penal
Code, 1860 - Sections 302 & 307 - Indian
Evidence Act, 1872 - Sections 40, 41, 42 &
44 - Application U/s 482 Cr.P.C. - for quashing
the charge-sheet as well as the entire criminal
proceedings - FIR - offence of murder - writ
petition filed challenging the FIR - court issued
964 INDIAN LAW REPORTS ALLAHABAD SERIES
notices and granted order of arrest stay till
conclusion of investigation - Investigation -
during
investigation
applicant
was
never
arrested - however co-accused were arrested
and they were enlarged on Bail - charge-sheet
was filed against them - order of cognizance
against them - Session Trial initiated against coaccused persons - in their trial witnesses were
declared hostile - resulted co-accused persons
were acquitted - thereafter, a charge-sheet was
filed against the applicant - cognizance was
taken - applicant pleaded that with regards to
the FIR and incident there is no difference,
whatsoever, in the chares, evidence and
witnesses were cited in support of prosecution
case in session trial against co-accused persons
are same in applicant case due to which police
is trying to arrest the applicant - court
emphasized that the provisions of the Evidence
Act and precedents including Moosa Vs Sub
Inspector of Police and CBI Vs Ravi Shankar
Srivastava, the Court must be exercised power
under section 482 of Cr.P.C. sparingly and not
to pre-empt trial proceedings - held - the
acquittal of co-accused due to hostile witnesses
does not automatically entitle the applicant to
similar relief - and the trial judge retains the
authority to summon witnesses under Section
311 CrPC - further, previous judgments do not
operate as res judicata in such cases - hence,
grounds which are taken by the applicant are
imaginary and trivial in nature and are not
sustainable in the eyes of law - consequently,
applicant is liable to be dismissed - direction
issued to proceed the trial and conclude
expeditiously within a period of one year.

(Para - 19, 22, 23, 25)

Application Dismissed. (E-11)

List of referred Cases: -

1. Moosa Vs Sub Inspector of Police, 2006 CrLJ
1922 (Kerala),

2. Central Bureau of investigation Vs Ravi
Shankar Srivastava, IAS & anr.AIR 2006 SC
2872,

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Kumar Dhananjay,
learned counsel for the applicant, Sri
Shivesh Mishra, learned counsel for the
informant, learned AGA for the State and
perused the record.

2. The instant application has been
moved to quash the charge-sheet arising
out of Case Crime No.629 of 1995 under
Section 307/302 IPC, Police Station
Kotwali, District Ghaziabad and the
proceedings of Criminal Case No.1466 of
1997 (State Vs. Mohd. Deen).

Grounds of appeal-

3. The applicant has taken ground that
an FIR was lodged by opposite party no.2
namely Mohd. Idris on 12.12.1995 with the
allegations
that
on
12.12.1995,
the
informant, Mohd. Idris along with his
nephew Naeem and Shahnawaz @ Ballu
were proceeding to a relatives place located
at Kaila Bhatta. When they reached near
Bokhari Clinic at about 12.15 in the noon,
the applicant allegedly accompanied by his
sons Salim and Sharif accosted the
informant and exhorted his sons to shoot
down Shah Nawaz on account of certain
election rivalry. It was alleged in the first
information report that upon exhortation by
the applicant, his sons Salim and Sharif
shot Shah Nawaz, as a result of which, he
was badly injured. Later on, Shah Nawaz
succumbed to his injuries. True copy of the
FIR has been annexed as annexure-1.

4. The entire story in the first
information report was baseless and the
allegation against the applicant was only of
exhortation.
The
impugned
first
information report contains allegation of
shooting against the applicant's sons but
there was no material, whatsoever, against
the applicant. The applicant filed a petition
3 All. Mohd. Deen Vs. State of U.P. & Anr.
965
being
Criminal
Misc.
Writ
Petition
No.15006 of 1996 before this Court,
challenging the first information report
dated 12.12.1995, whereupon this Court,
issued notice and by an interim order,
stayed
arrest
of
the applicant until
conclusion of investigation. A true copy of
the interim order dated 23.04.1996 has
been annexed as annexure-2 to the petition.

5. Consequently, the applicant was
never arrested pending investigation. The
applicant's sons, co-accused, Sharif and
Salim were, however, arrested and were
enlarged on bail by this Court. However, a
charge-sheet was filed against them on
15.01.1996, whereupon, the cognizance
was taken on 13.03.1996. A photo copy of
the charge-sheet filed against the coaccused, Salim and Sharif has been filed as
annexure-3 to the petition.

6. The case with regard to the coaccused, Salim and Sharif was committed
to the sessions which was registered as ST
No.394 of 1996 (State Vs. Salim and
another) under Section 302 IPC, Police
Station Kotwali, District Ghaziabad.

7. During course of the trial, the
witnesses of fact did not support the
prosecution version. Each has stated that he
had not seen the accused committing the
offence in question. The prosecution
witnesses were declared hostile and were
subjected to cross- examination. However,
the cross-examination did not yield any
benefit to the prosecution. A true copy of
the statements of PW-1, Mohd. Kasim,
PW-2, Mohd. Ashraf and PW-3, Mohd.
Idris have been annexed as annexure nos.3,
4 and 5 to the petition.

8. The learned Additional Sessions
Judge, after examination of evidence on
record, vide his judgment and order dated
14.03.2001, held that the prosecution was
totally unsuccessful in proving its case
against the co-accused Salim and Sharif
and, accordingly, entered a judgment of
clean acquittal in ST No.394 of 1996. A
true copy of judgment of acquittal of coaccused Salim and Sharif dated 14.03.2001
has been annexed as annexure-6 to the
petition.

9. However, a charge-sheet was filed
before the Chief Judicial Magistrate on
02.07.1996 also against the applicant and
cognizance whereof was taken by the Chief
Judicial Magistrate on 13.06.1997. A true
along with certified copy of the impugned
charge-sheet dated 13.06.1997 has been
annexed as annexure-7 to the petition.

10. That a perusal of the impugned
charge sheet would indicate that witnesses
of fact cited by the prosecution in the
impugned charge sheet are one and the
same as were cited in the charge sheet
against co-accused Salim and Sharif. The
charge sheet has been filed about the same
incident dated 12.12.1995 and arising out
of the same first information report. There
is no difference, whatsoever, in the
evidence which was cited in support of the
prosecution case in ST No.394 of 1996.
The same witnesses are also the witness in
the impugned charge-sheet and no other
witness has been shown.

11.

In
view
of
the
above
circumstances, the proceedings against the
applicant on the basis of impugned chargesheet, on the face of record, absolutely
futile as there is no possibility of a
conviction being recorded on the same
evidence on the basis of which co-accused
have already been acquitted. Thus, the
impugned charge-sheet is a patent abuse of
966 INDIAN LAW REPORTS ALLAHABAD SERIES
process of court and deserves to be
quashed.

12. A charge-sheet before the CJM
that is criminal case no.1466 of 1997, nonbailable warrant of arrest has been issued
against the applicant. The last non-bailable
warrant had been issued on 08.03.2005 due
to which the police is trying to arrest the
applicant and going by the old age and
health of the applicant, in case the applicant
is arrested, he will suffer irreparable loss
and
injury.
Under
the
aforesaid
circumstances, the charge-sheet arising out
of case crime no.629 of 1995, under
Section 307 /302 IPC and criminal case
no.1466 of 1997 - State Vs. Mohd. Deen,
pending in the Court of CJM, Ghaziabad be
quashed.

13. All the annexures referred in the
petition, have been annexed by the
applicant.

14. A counter affidavit bearing
no.173098 has been filed on behalf of
opposite party no.2. In the counter affidavit
it is admitted that the arrest of the applicant
was stayed by the High Court vide order
dated 23.04.1996 and it is further averred
that the IO had illegally submitted the
charge-sheet against only two accused. The
police has submitted charge-sheet against
the applicant and the learned Magistrate
has taken cognizance on 13.06.1997 and it
is submitted that the evidence is not the
same and the evidence has not yet come
and the trial has not yet started. It is further
averred that it is well settled law that
charge-sheet under Section 302 IPC may
not be quashed and the matter should be
tried by the trial Court.

15. No rejoinder affidavit has been
filed by the applicant against the aforesaid
counter affidavit.

Conclusion-

16. The only ground taken by the
applicant is that since the previously
charge-sheeted main accused persons Salim
and Sharif have been acquitted on account
of hostile evidence of the witnesses of fact
and he was only assigned the role of
exhortation, it would not be feasible to
conduct the trial in respect of the applicant
and therefore, no trial should be conducted
against the applicant and the charge-sheet
and the aforesaid criminal case must be
quashed.

17. In the charge-sheet filed against
the applicant, Mohd. Idrish, Naeem, Ashraf
have been shown to be witnesses of fact.
Out of them, Mohd. Naeen was discharged
in the main trial and was not testified by the
prosecution.
Similarly
witness
Mohd.
Kasim, a witness of inquest, Zaheer Ali,
Sheru, Nawabuddin, Siraj, Salim have been
shown to be witnesses of fard and inquest
and they were not examined in the previous
trial. There is another aspect that in a
criminal trial, a judge can not be a silent
spectator and for the ends of justice, he
may summon any of the person as witness
under Section 311 CrPC. Therefore, it can
not be said that since the witnesses of fact
had been turned hostile, therefore, the
impugned trial should not proceed against
the applicant. There is no law that if the coaccused have been tried and acquitted
separately, rest of the accused persons
would not be tried and would be discharged
and the proceeding of the criminal case
against the rest of the accused would be
liable to be quashed under Section 482
CrPC.

18. The relevancy and the evidentiary
value of the previous judgement has been
defined and enumerated under Section 40
3 All. Mohd. Deen Vs. State of U.P. & Anr.
967
to 44 of the Evidence Act are relevant
which are as follows:

"40.
Previous
judgments
relevant to bar a second suit or trial.-The
existence of any judgment, order or decree
which by law prevents any Courts from
taking cognizance of a suit or holding a
trial, is a relevant fact when the question is
whether
such
Court
ought
to
take
cognizance of such suit, or to hold such
trial.

41.
Relevancy
of
certain
judgments in probate, etc. jurisdiction.-A
final judgment, order or decree of a
competent Court, in the exercise of
probate,
matrimonial,
admiralty
or
insolvency jurisdiction, which confers upon
or takes away from any person any legal
character, or which declares any person to
be entitled to any such character, or to be
entitled to an specific thing, not as against
any specified person but absolutely, is
relevant when the existence of any such
legal character, or the title of any such
person to any such thing, is relevant.

Such judgment, order pr decree is
conclusive proof-

that any legal character which it
confers accrued at the time when such
judgment, order or decree came into
operation;

that any legal character, to which
it declares any such person to be entitled,
accrued, to that person to be entitled,
accrued, to that person at the time when
such judgment, order or decree declares it
to have accrued to that person;

that any legal character which it
takes away from any person ceased at the
time from which judgment, order or decree
declared that it had ceased or should
cease;

and that anything to which it
declares any person to be so entitled was
the property of that person at the time from
which such judgment, order or decree]
declares that it had been or should be his
property.

42. Relevancy and effect of
judgments, orders or decrees, other than
those
mentioned
in
section
41.-
Judgments, orders or decrees other than
those mentioned in section 41, are relevant
if they relate to matters of a public nature
relevant
to
the
enquiry;
but
such
judgments, orders or decrees are not
conclusive proof of that which they state.

Illustration

A Sues B for trespass on his land.
B alleges the existence of a public right of
way over the land, which A denies.

The existence of a decree in favor
of the defendant, in a suit by A against C
for a trespass on the same land, in which C
alleged the existence of the same right of
way, is relevant, but it is not conclusive
proof that the right of way exists.

43. Judgment, etc. other than
those mentioned in sections 40 to 42,
when relevant.-Judgments, orders or
decrees, other than those mentioned in
sections 40, 41 and 42, are irrelevant,
unless the existence of such judgment,
order or decree, is a fact in issue, or is
relevant under some other provision of this
Act.

Illustrations

(a) A and B separately sue C for
a libel which reflects upon each of them. C
in each case says, that the matter alleged to
be libellous is true, and the circumstances
are such that it is probably true in each
case, or in neither.

A obtains a decree against C for
damages on the ground that C failed to
make out his justification. The fact is
irrelevant as between B and C.

(b) A prosecutes B for adultery
with C, A's wife.
968 INDIAN LAW REPORTS ALLAHABAD SERIES

B denies that C is A's wife, but
the
Court
convicts
B
of
adultery.
Afterwards, C is prosecuted for bigamy in
marrying B during A's lifetime. C says that
she never was A's wife.

The
judgment against
B
is
irrelevant as against C.

(c) A prosecutes B for stealing a
cow from him, B is convicted.

A afterwards sues C for the cow,
which B had sold to him before his
conviction. As between A and C, the
judgment against B is irrelevant.

(d) A has obtained a decree for
the possession of land against B, C, B's
son, murders A is consequence.

The existence of the judgment is
relevant, as showing motive for a crime.

(e) A is charged with theft and
with having been previously convicted of
theft. The previous conviction is relevant as
a fact in issue.

(f) A is tried for the murder of B.
The fact that B prosecuted A for libel and
that A was convicted and sentenced is
relevant under section 8 as showing the
motive for the fact in issue.

44.
Fraud
or
collusion
in
obtaining judgment, or incompetency of
Court, may be proved.-Any party to a suit
or other proceeding may show that any
judgment, order or decree which is relevant
under section 40, 41 or 42 and which has
been proved by the adverse party, was
delivered by a Court not competent to
deliver it, or was obtained by fraud or
collusion."

19. From the combined reading of the
aforesaid provisions and the case in hand, it
is crystal clear that the judgment and order
passed in respect of Salim and Sharif does
not apply as res judicata. At most it can be
said to be relevant which may be
considered by the trial court but there is no
law that if separately tried co-accused
persons have been acquitted, the applicant
co-accused will also be liable to be
acquitted and the charge-sheet and the
criminal trial would be liable to be quashed
under the inherent powers of the Court.

20. In Moosa Vs. Sub Inspector of
Police, 2006 CrLJ 1922 (Kerala) the facts
of the case was that the co-accused were
acquitted in the trial against them in the
absence of absconding co-accused. Later
on, the absconding co-accused moved an
application to reckon the jurisdiction under
Section 482 CrPC to quash the proceeding
of the criminal case pending against him. It
was held that a judgement which is not
inter parties cannot justify the invocation of
the Doctrine of Estoppel under the law at
present.

21.

In
Central
Bureau
of
investigation Vs. Ravi Shankar Srivastava,
IAS and Another AIR 2006 SC 2872 it has
been held that while exercising jurisdiction
under Section 482 CrPC, the High Court
would not ordinarily embark upon an
enquiry whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it accusation would not be
sustained. That is the function of trial
Judge.

22. It has been held in several
judgements by the Apex Court that powers
under Section 482 CrPC cannot be liberally
exercised and it has to be sparingly
exercised, in cases where there is a dire
need of exercise of this power.

23. Thus, from the above discussion,
this Court is of the considered view that the
previous judgment passed in favour of the
co-accused persons is no ground to allow
the petition under Section 482 CrPC and to
3 All. Sirajuddin Vs. State of U.P. & Anr.
969
quash the impugned charge-sheet and the
proceedings of the criminal case pending
against the applicant. The grounds taken by
the applicant are imaginary and trivial in
nature and are not sustainable in the eyes of
law. Therefore, the petition lacks merit and
is liable to be dismissed.

24. Accordingly, this petition under
Section 482 CrPC is dismissed. Interim
order, if any, stands vacated.

25. Let a copy of this order be sent to
the
CJM,
Ghaziabad
for
necessary
compliance and for committal of the case if
the same has not been committed to the
Court of Sessions. In case the trial is not
conducted, the same shall be conducted and
concluded as early as possible preferably
within a period of one year from the date
of receipt of a copy of this order by the
court concerned as the matter has become
very old.
----------
(2024) 3 ILRA 969
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Application U/S 482. No. 5372 of 2005

Sirajuddin ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vinod Prasad, Sri Dhirendra Kumar
Srivastava, Sri Dinesh Kumar Singh, Sri
Mohd. N. Siddiqui, Sri Pushkar Srivastava,
Sri Vinod Sharma

Counsel for the Opposite Parties:
G.A., Sri R.P. Srivastava
Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 311, 313 & 482
- Indian Penal Code, 1860 - Sections 363,
366, 366-A, 376 & 506 - Indian Evidence
Act, 1872 - Sections 80, 145 & 157 -
Application U/s 482 Cr.P.C. - for quashing of
trial court's order allowing prosecution's request
under Section 311 CrPC to recall and re-examine
victim (PW-3) - FIR - charge-sheet - offence
under Sections 363, 366, and 376 IPC -
Prosecution argued victim was frightened during
initial deposition and her Section 164 CrPC
St.ment remained unproved - Defence opposed
recall, alleging attempt to plug evidentiary gaps
and citing admissibility under Section 80 of
Evidence Act - Trial court permitted reexamination
despite
objections
-
instant
application, alleging judicial impropriety and
procedural unfairness - Court observed that,
PW-3 had already been declared hostile, crossexamined, denied allegations of rape and
abduction, disowned St.ments under Sections
161 and 164 CrPC, and affirmed her court
testimony as truthful - and the St. of UP or the
opposite party no. 2 had not questioned the
proceedings of the trial court - Held - recalling
PW-3 would prejudice the accused and serve no
legal purpose - and the testimony on oath in
the court during the course of trial has
overriding effect - therefore, to prevent abuse
of process and secure justice, application is
allowed - and the impugned order is hereby
quashed.
(Para -14, 17, 18, 19, 20, 22)
 Application Allowed. (E-11)

List of referred Cases: -

1. Raja Ram Prasad Yadav Vs St. of Bihar &
anr., AIR 2013 SC 3081,

2. VN Patil Vs Niranjan Kumar & ors., (2021) 3
SCC 661,

3. Utpal Das Vs St. of W.B., AIR 2010 SC 1894,

4. Baijnath Singh Vs St. of Bihar, 2010 (70) ACC
11 (SC),

5. Asian Resurfacing of Road Agency Pvt. Ltd.
Vs Central Bureau of Investigation, (2018) 16
SCC 299.