# Parashu Ram Dohre v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-08
- **Case number:** Application U/S 482. No. 4653 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parashu-ram-dohre-v-state-of-u-p-ors-49382
- **Pages:** 9

## Headnote

A. Criminal Law - Criminal Procedure Code,
1973-Section 482 - Indian Penal Code, 1860Sections 342, 379, 427, 468, 471 & 120 (B) -
11 All. Parashu Ram Dohre Vs. State of U.P. & Ors.
633
N.D.P.S. Act, 1985 - Section 8/20/29 . As far as
the first issue is concerned, it is clear from the
fact of this case that after the applicant
proceeded against the accused persons and
recovered the contraband substance against
them, thereby collecting the evidence, the
investigating
agency,
i.e.,
CBCID
without
recording any reason that the act of the
applicant is not in a good faith, proceeded in the
matter and filed the charge-sheet for the other
offences than provided in Section 58 of the Act,
1985, which in the opinion of this Court is
against the mandate of Section 69 of the Act,

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES
Promotion
Employees
(Conditions
of
Service) Act, 1976 which provides that the
provisions of the Industrial Disputes Act,
1947, as in force for the time being, shall
apply to, or in relation to, sales promotion
employees as they apply to, or in relation
to, workmen within the meaning of the Act
and for the purposes of any proceeding
under that Act in relation to an industrial
dispute. From this deeming provision, it is
apparent that the Parliament recognised
that the class for the benefit of which the
legislation was being undertaken, was not
covered by the definition of "workman"
under section 2(s) of the Industrial
Disputes Act and that was the reason to
include that category by the deeming
provision which was incorporated. To say,
therefore, that a person who did the job of
sales promotion did not belong to an
identifiable category which would not be
correct."

31. We are in agreement with the
view taken by the Bombay High Court in
the case of S.G. Pharmaceuticals (supra)
and it is thus clear that as per section 6(2)
of Sales Promotion Employees (Conditions
of Service) Act, 1976, the medical
representatives are "workman" under the
Industrial disputes Act, 1947. Further in the
case of H.R. Adyanthaya v. Sandoz
(India) Ltd, 1994 SCC (5) 737 it was
further made clear that the 1976 Act after
its amendment in the year 1986 by the
Amending Act No. 48 of 1986 which came
into effect w.e.f. 06.05.1987 expanded the
definition of sales promotion employee to
include all sales promotion employees
without any ceiling on their wages, except
those employed in supervisory capacity
drawing wages exceeding Rs 1600 per
mensem and those employed or engaged
mainly in managerial or administrative
capacity.

32. Thus, after 06.05.1987 all the
medical representatives were declared to be
workmen without limitation on their wages
thereafter and upon the capacity in which
they were employed or engaged.

33. In light of the aforesaid discussion
this Court is of the considered view that
after coming into force of Sales Promotion
Employees (conditions of service) Act, 1976
the medical representatives would be
deemed to be workmen as per the
provisions of Industrial Disputes act and
accordingly the argument of the petitioner
is rejected in this regard.

34. In light of the aforesaid discussion
this Court does not find any infirmity in the
impugned order dated 24.01.2007. The writ
petition is accordingly dismissed.
----------
(2023) 11 ILRA 632
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 4653 of 2023

Parashu Ram Dohre ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Dharm Raj Mishra

Counsel for the Opposite Parties:
G.A., Shambhunath Mishra, Shambhoo
Nath Misra, Umesh Chandra Tripathi, Quazi
Vakil Ahmad

A. Criminal Law - Criminal Procedure Code,
1973-Section 482 - Indian Penal Code, 1860Sections 342, 379, 427, 468, 471 & 120 (B) -
11 All. Parashu Ram Dohre Vs. State of U.P. & Ors.
633
N.D.P.S. Act, 1985 - Section 8/20/29 . As far as
the first issue is concerned, it is clear from the
fact of this case that after the applicant
proceeded against the accused persons and
recovered the contraband substance against
them, thereby collecting the evidence, the
investigating
agency,
i.e.,
CBCID
without
recording any reason that the act of the
applicant is not in a good faith, proceeded in the
matter and filed the charge-sheet for the other
offences than provided in Section 58 of the Act,
1985, which in the opinion of this Court is
against the mandate of Section 69 of the Act,
1985. If the provision of Section 58 of the Act,
1985 is given in the act so as to protect the
accused from the stringent action, then on the
other hand, the officer who acts under Section
42, 43, 44 of the Act, 1985, has also been given
protection under Section 69 of the Act, 1985. No
doubt that a proceeding under Section 58 of the
Act, 1985 can be invoked, but what would be
the stage, is the foremost question. While
searching out the answer, it is overt from the
bare reading of the provision that the Court
before whom the criminal proceeding against an
accused is running, comes to the conclusion
that entry, search, seizure or arrest was either
vexatious
or
unnecessary
or
a
case
of
unnecessary detention, he shall be prosecuted
with the punishment provided under Section 58
of the Act, 1985- In the instant matter, the First
Information Report has been lodged under
Section 342, 379, 427, 468, 471, 120(B) of IPC
and under Sections 8/20/29 of the NDPS Act,
against the applicant but the allegation against
the applicant is that he has falsely implicated
the opposite party no. 3 by showing false
seizure of the contraband substance, from his
possession. For the aforesaid allegations, the
punishment is provided under Section 58 of the
Act, 1985 and being an Special Act, the
prosecution of such an officer can be done by
following the procedure of law but so far as the
criminal
proceeding
initiated
against
the
applicant is concerned, it was done ignoring the
provision of Section 69 of the Act, 1985 and
therefore, the criminal proceeding arising out of
Case Crime No. 67 of 2005 is erroneous.(Para 1
to 31)

The application is allowed. (E-6)

List of Cases cited:
1. UOI thru Narcotic Control Bureau, Lko.Vs
M.D. Nawaz Khan(2021) AIR SC 4476;

2. Ravindra B. Dixit Vs St. of M.P. (2000) 10
SCC 92

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Dharm Raj Mishra,
learned counsel for the applicant, Sri Rajan
Mishra, Advocate holding brief of Sri
Quazi Vakil Ahmad, learned counsel for
the opposite party no.2, Sri Aniruddh
Kumar Singh, learned A.G.A.-I and Sri
Sanjay Kumar Yadav, learned AGA for the
State.

2. By means of the instant petition,
the applicant has sought following:-

(I) issue an order or direction in
appropriate nature for setting aside the
impugned order dated 26.04.2023 passed
by the learned Additional Session Judge,
F.T.C. -II, Bahraich contained as annexure
No.1 to the petition and further may
pleased to set aside the charge sheet No.7
of 2022 contained as annexure No.5 to the
petition.

(II) Issue an order or direction in
appropriate
nature
to
set-aside
the
proceeding of case crime No.67/2005 under
Section- 342, 379, 427, 468, 471, 120 (B)
I.P.C. and under Section 8/20/29 of the
N.D.P.S. Act pending before learned
Additional Session Judge, F.T.C. -II,
Bahraich and direct the opposite party No.1
to investigate the matter in fair and
impartial manner.

3. Factual matrix of the case is that
the petitioner with other members of the
Police team, on an information, raided and
arrested Sarfaraz on 18 June 2003 from
634 INDIAN LAW REPORTS ALLAHABAD SERIES
Nepal border and 1 KG of Charas, i.e.,
contraband substance was recovered from
his possession and a First Information
Report was lodged as Case Crime No. 202
of 2003 under Section 8/20 of the Narcotic
Drugs and Psychotropic Substances Act,
1985 (hereinafter referred as 'the Act
1985'). Thereafter, Shrinath Yadav was
appointed as Investigating Officer who
recorded the statement of the witnesses and
prepared the site plan and submitted the
chargesheet on 6 July 2003 but in the
meanwhile, the father of the accused wrote
a letter to the Human Rights Commission,
that his son is being falsely implicated and
thereafter the Special Secretary Home
wrote a letter to the Superintendent of
Police, Bahraich to conduct an enquiry
regarding allegations levelled by the father
of the opposite party no. 3 and Circle
Officer, Nanpara, Bahraich was appointed
to enquire the matter. Thereafter recording
the statement of opposite party no. 2 and
the witnesses, submitted his report that the
allegations made by the opposite party no.
2, are not correct and ignoring the report of
the Circle Officer dated 17.11.2003, the
Under Secretary, Government of Uttar
Pradesh, directed to the Director General of
Police to transfer the investigation of Case
Crime No. 202 of 2003 to CBCID, with
immediate effect. In the meantime, the trial
Court took cognizance on the chargesheet
dated 28 July 2003 submitted by the
Investigating Officer and charges were also
framed against the opposite party no. 3 vide
order dated 24 January 2004.

4. In compliance of the order of the
Under Secretary, Government of UP, Nihal
Prasad was appointed as Investigating
Officer who submitted the final report
before the trial Court. A First Information
Report was lodged against the applicant
under Section 8/20 of the Act, 1985, which
was registered as Case Crime No. 67 of
2005. Being aggrieved, the applicant filed a
writ petition, namely, 1306 (MB) of 2005
before this Court wherein the arrest of the
applicant was stayed vide order dated 2
March 2005. Thereafter, Sarfaraz filed a
petition under Section 482 No. 1316 of
2006, challenging the chargesheet dated 6
July 2003 filed against him which was
dismissed vide order dated 18 September
2012. Further, the final report which was
submitted by the Investigating Officer was
rejected by the trial Court on 4 January
2006 on the protest application of the
applicant and against the aforesaid order,
no appeal or revision has been filed and
that has attained finality.

5. Father of accused filed Writ
Petition No. 25227 of 2020 before this
Court for conducting proper and fair
investigation in Case Crime No. 67 of
2005, which was finally disposed of vide
order dated 9 July 2021, and a recall
application of the order dated 9 July 2021
was moved by the applicant which is still
pending. Thereafter, the father of the
accused, Sarfaraz filed contempt petition
bearing No. 1636 (C) of 2021. Later on, the
Writ Petition No. 1306 of 2005 filed by the
applicant was dismissed and a special leave
petition was instituted which too was
dismissed.

6. On 19.12.2022, chargesheet was
filed in Case Crime No. 67 of 2005 under
Sections 342, 379, 427, 467, 468, 471, 120B of IPC and 8/20/29 of the Act, 1985. On
26 April 2023, the trial Court took
cognizance against the applicant and issued
summons.

7. So far as, the prosecution sanction
was granted in Case Crime No. 67 of 2005,
11 All. Parashu Ram Dohre Vs. State of U.P. & Ors.
635
the same is under challenge before this
Hon. Court and is pending consideration.

8. Contention of the learned counsel
for the applicant is that, the Act, 1985 is a
special Act and the intent of the legislature
is clear by expressly providing punishment
under Section 58 for vexatious entry
and unlawful search, seizure or arrest.
He added that the case in hand is that it
is malicious prosecution, as the present
applicant has not made vexatious entry
and unlawfully arrested the opposite
party no. 3. He added that the applicant
acted in a good faith and there was no
intention to falsely implicate opposite
party no. 3 and the evidence which was
collected by the Investigating Officer
do not disclose that how the entry is
vexatious and the search, seizure or
arrest are unlawful or without any
reasonable ground of suspicion.

9. Section 58 of the Act, 1985 is
reproduced hereinunder :-

"58. Punishrnent for vexatious
entry, search, seizure or arrest.-(1) Any
person empowered under section 42 or
section 43 or section 44 who-

(a) without reasonable ground of
suspicion enters or searches, or causes to
be entered or searched, any building,
conveyance or place;

(b) vexatiously and unnecessarily
seizes the property of any person on the
pretence of seizing or searching for any
narcotic
drug
or
psychotropic
substance or other article liable to be
confiscated under this Act, or of seizing
any document or other article liable to
be seized under section 42, section 43
or section 44; or

(c) vexatiously and unnecessarily
detains, searches or arrests any person,

shall
be
punishable
with
imprisonment for a term which may extend
to six months or with fine which may extend
to one thousand rupees, or with both.

(2) Any person wilfully and
maliciously giving false information and so
causing an arrest or a search being made
under this Act shall be punishable with
imprisonment for a term which may extend
to two years or with fine or with both. "

10. Referring the aforesaid he submits
that under Section 58 of the Act, 1985,
there is a provision for prosecution of an
Officer empowered under Section 42, 43
and 44 of the Act, 1985 for false or
malicious or vexatious entry, search,
seizure or arrest but the fact remains that
the opposite party no. 3 who is the accused
person and was arrested by the present
applicant and the contraband, 1 KG Charas
was seized from his possession, the
chargesheet was filed against him and his
discharge application was rejected and
charges has been framed, meaning thereby
the trial Court at first hand applied its mind
and there was substantial material against
the opposite party no. 3 for framing of
charges and therefore, this could not be
said that arrest of the opposite party no. 3
was unlawful or there is any vexatious
entry or unlawful search and seizure.

11. He further argued that under
Section 54 of the Act, 1985, there is a
provision of presumption regarding the
possession
of
contraband
substance
recovered and seized by the empowered
officer, until proved otherwise. Since, the
substance was admittedly recovered and
seized from the possession of Sarfaraz and
636 INDIAN LAW REPORTS ALLAHABAD SERIES
trial against Sarfaraz is at final stage,
therefore, on the basis of presumption that
such contraband was in possession of the
applicant, is wholly unbelievable and
baseless. Further contention of the learned
counsel for the applicant is that the
impugned order and the chargesheet are
against the provision of section 69 of the
Act, 1985.

12. Section 69 of the Act, 1985 is
reproduced here in under :-

"69. Protection of action taken in
good faith.

No suit, prosecution or other
legal proceeding shall lie against the
Central Government or a State Government
or any officer of the Central Government or
of the State Government or any other
person
exercising
any
powers
or
discharging any functions or performing
any duties under this Act, for anything in
good faith done or intended to be done
under this Act or any rule or order made
thereunder."

13. Referring the aforesaid he submits
that looking into the provision of Section
58 and for giving a safeguard to the
authority under this Act, it has cautiously
been provided by the legislature that no
suit, prosecution or other legal proceeding
shall lie against any officer of the Central
Government or State Government or any
person exercising any power or discharging
any function under this Act which has been
done in a good faith. This provision clearly
shows that while promulgating the stringent
punishment for offences in the Act, 1985,
the legislature was aware of the misuse of
the provision, and therefore provided
protection, thereby inserting the provision
of Section 69.

14. While adding his argument, he
submits that the provision of Section 58 of
the Act, 1985 provides the procedure with
respect to punishment and being the special
Act, if an offence is been committed by any
person, which is provided in the Act itself,
unless otherwise provided under law, such
person or authority shall be dealt in
accordance with the provision of this Act,
not otherwise. He submits that chargesheet
has been filed under Section 8/20/29 of the
Act, 1985 along with several Sections of
Indian
Penal
Code,
which
is
not
permissible under the law.

15. Further initiation of criminal
prosecution against the present applicant is
of no avail and this could only be done in
the exigencies, if the final report is filed
and accepted by the trial Court against the
accused who has been arrested by such a
person, liable to be prosecuted under
Section 58 of the Act, 1985 or the criminal
proceeding are concluded and such accused
person is acquitted. He submits that so far
as, the case in hand is concerned, the
chargesheet has been filed against the
opposite party no. 3 and the discharge
application has been rejected and charges
have been framed and that has not been
challenged at any Court of law and has
attained finality. He added that this, prima
facie, shows that the entry is not vexatious
and there is no maliciousness apparent so
far as the allegation of false implication
against the applicant is concerned.

16. In support of his contention, he
has placed reliance on the following
judgements :-

1) (2000) 10 SCC 92; Ravindra
B. Dixit Vs. State of M.P. and has referred
paragraph 4 and 5 which is quoted
hereinunder :-
11 All. Parashu Ram Dohre Vs. State of U.P. & Ors.
637

"4. A bare reading of the
aforesaid section would indicate that
recourse can be taken to the said provision
only when the court comes to the
conclusion that the entry, search, seizure or
arrest was either vexatious or unnecessary
as is apparent from sub-section (1)(b) of
Section 58.

5. From the mere fact that there
has been an infraction of Sections 42 and
50 of the Act, the Court cannot jump to the
conclusion that the arrest or seizure in
question
was
either
vexatious
or
unnecessary. In that view of the matter, the
impugned direction of the High Court must
be held to be without jurisdiction as the
condition precedent for application of
Section 58 has been found to be lacking. In
these circumstances, we set aside the
impugned
direction
and
allow
these
appeals accordingly."

2) (2021) AIR SC 4476; Union of
India through Narcotic Control Bureau,
Lucknow Vs. M.D. Nawaz Khan and has
referred paragraph 9 (iv), which is quoted
hereinunder :-

"9 (iv) A presumption under
Section 54 of the NDPS Act would arise in
respect of the possession of a narcotic drug
which is found to be in the conscious
possession of the accused. "

17. On the other hand, the learned
counsel
appearing
for
the
private
respondent has opposed the contentions
aforesaid and submits that the applicant
falsely implicated the opposite party no. 2
by registering a First Information Report as
Case Crime No. 202 of 2003 at Police
Station Nawabganj District Bahraich and
that's why the opposite party no. 2 wrote
several letters, including letter to the
Human Rights Commission, New Delhi
and thereafter, the matter was investigated
by
the
CBCID.
The
CBCID
after
thoroughly investigating the matter, found
the charges that the opposite party no. 2 has
been falsely implicated as it was found that
there was some criminal conspiracies
committed by the Investigating Officer and
by
showing
false
recovery
of
the
contraband substance, the opposite party
no. 2 was thrown to face stringent criminal
proceedings.

18. During the course of his
argument, he has also pointed out that the
Human Rights Commission took notice of
the complaint dated 02.08.2003 made by
the respondent and action taken report was
sought from the Superintendent of Police,
Bahraich,
whereafter
a
report
was
submitted, wherein, the clean chit was
given to the Investigating Officer as well as
other Police officers. He added that the
applicant challenged the Government Order
dated 24.12.2003 as well as the First
Information
Report
dated
19.02.2005
before this Court vide criminal Writ
Petition No.1306 (MB) of 2005, wherein,
the order dated 13.09.2019 was passed and
the petition was dismissed. He submitted
that the applicant had also taken all the plea
before the Division Bench of this Court,
which are also being placed before this
Court vide this petition.

19. He argued that the matter has
thoroughly
been
investigated
by
the
CBCID and thereafter the matter proceeded
against the applicant and once the material
substance was found against the applicant,
the trial Court issued summons. Further
contention of the private respondent is that
the protection under Section 58 of the
NDPS act cannot be granted to the
applicant as the Division Bench of this
638 INDIAN LAW REPORTS ALLAHABAD SERIES
Court had already expressed its view that
the First Information Report has rightly
been registered against the applicant and
therefore, in the event of material substance
against the applicant as well as the order of
this Court, no interference is warranted.

20. Per contra, the learned counsel for
the State submits that initially the First
Information Report was lodged against the
respondent and thereafter the matter
proceeded and they were found involved in
committing offence under the NDPS Act,
as the contrabands were recovered from
their possession. He submits that being
aggrieved, he moved before the Human
Rights Commission, New Delhi and after
certain developments, the investigation
against the applicant, completed and the
chargesheet was filed and after taking
cognizance,
the
Magistrate
has
also
summoned the private respondent and in
between, the CBCID has also investigated
the matter and found that the applicant was
involved in committing the offence and
therefore the First Information Report was
registered and after investigation the
chargesheet has been filed.

21. Having heard the counsel for the
parties and after perusal of the material
placed on record, it transpires that the
police team on an information raided the
place of occurance and arrested Sarfaraz,
respondent no. 3 at Nepal border with 1 kg
of Charas and thereafter completing the
formalities of recovery thereafter, the
accused persons were arrested and sent to
jail. Further, a complaint was made by the
accused persons to the Human Rights
Commission, New Delhi whereafter an
investigation was also started by the
CBCID and a First Information Report was
lodged against the applicant with a charge
of falsely implicating the accused persons
in Case Crime No. 202 of 2003. Though,
the applicant filed a writ petition before this
Court challenging the FIR, but since the
investigation was almost at the completion
stage, therefore, the Court did not enter into
the matter and dismissed the same.

22. When this Court examines the
present matter in the light of the law
regarding the false implication in the
matters of the NDPS Act, it reveals that
Section
58
provides
punishment
for
vexatious entry, search, seizure, or arrest by
a person empowered under Section 42 or
43 or 44 of the Act, 1985. Since, the
criminal proceedings under the Act, 1985,
are stringent, therefore cautiously, the
Parliament has inserted provisions for the
safeguard of the accused persons. The
provision of Section 58 would come into
light when without any reasonable ground
of suspicion, a person empowered under
section 42, 43, 44 of the Act, 1985 enters or
searches or causes to be entered or searched
any building, convenience or place and
vexatiously and unnecessarily seized the
property for pretence of searching and
seizing any narcotic drug or psychotropic
substance or other article or detains,
searches or arrest any person, he/she shall
be punished. Meaning thereby that if at any
point of time pleas are raised by the
accused persons, who were searched or
arrested or whose properties were seized,
they would have right to make complaint
and
on
such
complaint
and
after
investigation on it, if it is found that any
person has resulting it to cause falsely and
maliciously given false information or
arrested or searched, must be prosecuted.

23. This court has noticed the fact that
the applicant being Investigating Officer in
Case Crime No. 202 of 2003, arrested the
respondent/accused persons and recovered
11 All. Parashu Ram Dohre Vs. State of U.P. & Ors.
639
the contraband substance, i.e., 1 KG Charas
from
them
and
therefore
the
First
Information
Report
was
lodged
and
thereafter the matter was investigated and
chargesheet was filed. The trial Court had
also taken cognizance and issued summons
and
the
matter
is
still
pending
consideration. But one thing is clear that at
the first hand, the respondent accused
persons are found involved in committing
offence and they were chargesheeted. So
far as the chargesheet filed against the
applicant is concerned, that does not
disclose that whether Section 69 of the Act,
1985 has been taken care of by the
investigating agency, who has submitted
the chargesheet against the applicant under
Section 58 of the Act, 1985 is a protection
to the action of an officer, who acted in a
'good faith'.

24. In view of the aforesaid
backgrounds, the issues are cropped up;
one is that whether, in a case, where the
chargesheet has been filed against an
accused for offences under the Act, 1985,
but without completion of the trial
proceeding, the police officer or any
authority can be prosecuted for offences
prescribed under section 58 of the Act,
1985 and secondly, that whether the
protection, which were given to an officer
under Section 69 of the Act, 1985 can be
ignored by any of the investigating agency,
in any eventuality.

25. As far as the first issue is
concerned, it is clear from the fact of this
case that after the applicant proceeded
against the accused persons and recovered
the contraband substance against them,
thereby
collecting
the
evidence,
the
investigating agency, i.e., CBCID without
recording any reason that the act of the
applicant is not in a good faith, proceeded
in the matter and filed the chargesheet for
the other offences than provided in Section
58 of the Act, 1985, which in the opinion of
this Court is against the mandate of Section
69 of the Act, 1985. If the provision of
Section 58 of the Act, 1985 is given in the
act so as to protect the accused from the
stringent action, then on the other hand, the
officer who acts under Section 42, 43, 44 of
the Act, 1985, has also been given
protection under Section 69 of the Act,
1985. No doubt that a proceeding under
Section 58 of the Act, 1985 can be invoked,
but what would be the stage, is the
foremost question. While searching out the
answer, it is overt from the bare reading of
the provision that the Court before whom
the criminal proceeding against an accused
is running, comes to the conclusion that
entry, search, seizure or arrest was either
vexatious or unnecessary or a case of
unnecessary
detention,
he
shall
be
prosecuted with the punishment provided
under Section 58 of the Act, 1985.

26. In the instant matter, the First
Information Report has been lodged under
Section 342, 379, 427, 468, 471, 120(B) of
IPC and under Sections 8/20/29 of the
NDPS Act, against the applicant but the
allegation against the applicant is that he
has falsely implicated the opposite party
no. 3 by showing false seizure of the
contraband substance, from his possession.
For
the
aforesaid
allegations,
the
punishment is provided under Section 58 of
the Act, 1985 and being an Special Act, the
prosecution of such an officer can be done
by following the procedure of law but so
far as the criminal proceeding initiated
against the applicant is concerned, it was
done ignoring the provision of Section 69
of the Act, 1985 and therefore, the criminal
proceeding arising out of Case Crime No.
67 of 2005 is erroneous.
640 INDIAN LAW REPORTS ALLAHABAD SERIES

27. This Court has also taken note of
the fact that after investigation in Case
Crime No. 202 of 2003, the charge-sheet was
filed against the opposite party no. 3 and
thereafter the charges have also been framed
and thus, the story which has been narrated by
the opposite party no. 2, prima facie, seems to
be incorrect.

28. In view of the aforesaid submissions
and discussions, the entire criminal proceedings
arising out of Case Crime No. 67 of 2005 under
Section- 342, 379, 427, 468, 471, 120(B) of IPC
and under Section 8/20/29 of the N.D.P.S. Act
pending before learned Additional Session
Judge, F.T.C.- II, Bahraich are hereby quashed.

29. It is open to the prosecution to
proceed further against the applicant, in
accordance with law.

30. The instant application is hereby
allowed.
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(2023) 11 ILRA 640
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.11.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No.8245 of 2023

Vishal Mishra & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Angrej Nath Shukla

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure Code,
1973-Section 482 - Indian Penal Code, 1860Sections 147, 148, 149, 323, 504, 506 & 307 -
Prevention of Damage to Public Property Act,
1984 - Section 2/3 - Explosive Substance Act,
1908 - Section 3 - National Investigation Act,
2008-Sections 2(1)(h), 13 & 22-Quashing of
Chargesheet and Cognizance order- In the
instant matter, supplementary charge sheet was
filed under Section 3 of the Act, 1908 which is
admittedly 'the Scheduled Offence' but the
Judicial Magistrate-Ist, Gonda ignoring the
provisions of the Act 2008 took cognizance and
summoned the applicants including the other
co-accused persons. He furtherthe Judicial
Magistrate-I has taken cognizance of the
offence under Section 3 of the Act 2008 along
with the other offences of the Indian Penal Code
whereas so far as the offence under Section 3 of
the Act 1908 is concerned that is to be tried by
the Special Courts as are designated under
Section 22 and defined under Section 2(1)(h) of
the Act, 2008. It is also an admitted fact that
the court of Judicial Magistrate-I, Gonda is not a
court designated under Section 22 of the Act
2008 and the fact remains that the Special Court
for hearing the matter is designated as third
most senior Additional Sessions Judge at
Lucknow and the same is having jurisdiction
over all the State of Uttar Pradesh so far as the
cases scheduled, under the Schedule of the Act,
2008. Section 3 of the Act 1908 has been
charged after further investigation, by way of
filing supplementary charge-sheet and therefore
as per the notification dated 24.04.2021, issued
by the Government of Uttar Pradesh while
exercising its power provided under Section 22
of the Act, 2008 shall be applicable in the
instant matter and therefore the matter is
triable by the Special Court designated by the
State of U.P., i.e., the third senior most Court of
Additional
District
and
Sessions
Judge,
Lucknow.(Para 1 to 20)

B. Section 22 of the Act 2008 empowers the
State Government to designate one or more
courts of session as a special courts for trial of
the offences specified in the 'schedule'. It is,
prima facie evident from the Schedule of the Act
2008 that the 'Act 1908' is substituted with
effect from 2nd of August 2019, in the Schedule
of the Act 2008 and, therefore, the jurisdiction
of the Special Courts as provided under Section
13 of the Act 2008, shall come into picture, so
far as the present matter is concerned.(Para 14)