# Sessions Trial No. 286 of 2002, State v. Kuldeep and others under section 376

- **Citation:** (2007) 3 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-30
- **Case number:** Criminal Misc. Writ Petition No. 12339 of 2007
- **Bench:** Imtiyaz Murtaza, K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sessions-trial-no-286-of-2002-state-v-kuldeep-and-others-under-section-376-41116
- **Pages:** 5

## Headnote

Constitution of India-Art. 226-Quashing
F.I.R.-offence
under
section
395,397,384,506
IPC-looted
articles
recovered by Police-name of petitioner
found in the statement of witnessmalafide allegations made as petitioner a
practicing lawyer belongs to a particular
party-held-no ground for interference.

Held: Para 16

In this case after the registration of the
case the looted articles have been
recovered
by
the
police
and
also
statements
of
the
witnesses
were
recorded in which the name of the
petitioner has been mentioned and it
cannot be said that there is no allegation
against the petitioner to attract the
commission of cognizable offence. The
Apex Court in the case of Union Of India
Vs. B.R. Bajaj reported in (1994) 2 SCC
777 has held that at the stage of the FIR
the courts should refrain from interfering
when the FIR discloses the commission
of a cognizable offence and statutory
power of police to investigate can not be
interfered
with
in
exercise
of
the
inherent power of the court.
Case law discussed:
1992 SCC(Crl.)-426
1999 (3) SCC-259
2002 (3) SCC-89
2007 SCC (Crl.)-193

## Text

724 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
present application under section 482 Cr.
P.C. deserves to be allowed to this extent
only.

7. The application under section 482
Cr.P.C. is therefore partly allowed. The
order 16.9.06 passed by Addl. Sessions
Judge, Court no. 6 Kanpur Dehat in
Sessions Trial No. 286 of 2002, State Vs.
Kuldeep and others under section 376
I.P.C., P.S. Rura District Kanpur Dehat is
partly set aside only to the extent pointed
out above. Learned Addl. Sessions Judge
shall now get the applicants medically
examined and after receipt of the report of
the C.M.O., shall provide an opportunity
to both the parties to file objections, if any
, against the report of the C.M.O. and
thereafter he would pass suitable orders
regarding so called juvenileship of the
applicants on the date of the incident.
Application partly Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2007

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE K.N. OJHA, J.

Criminal Misc. Writ Petition No. 12339 of
2007

Khan Saulat Hanif

...Petitioner
Versus
State of U.P. and others ...Respondents
Counsel for the Petitioner:
Sri Satish Trivedi
Sri S.M.A. Kazmi
Sri D.S. Misra
Sri Sharique Ahmed

Counsel for the Respondents:
A.G.A.

Constitution of India-Art. 226-Quashing
F.I.R.-offence
under
section
395,397,384,506
IPC-looted
articles
recovered by Police-name of petitioner
found in the statement of witnessmalafide allegations made as petitioner a
practicing lawyer belongs to a particular
party-held-no ground for interference.

Held: Para 16

In this case after the registration of the
case the looted articles have been
recovered
by
the
police
and
also
statements
of
the
witnesses
were
recorded in which the name of the
petitioner has been mentioned and it
cannot be said that there is no allegation
against the petitioner to attract the
commission of cognizable offence. The
Apex Court in the case of Union Of India
Vs. B.R. Bajaj reported in (1994) 2 SCC
777 has held that at the stage of the FIR
the courts should refrain from interfering
when the FIR discloses the commission
of a cognizable offence and statutory
power of police to investigate can not be
interfered
with
in
exercise
of
the
inherent power of the court.
Case law discussed:
1992 SCC(Crl.)-426
1999 (3) SCC-259
2002 (3) SCC-89
2007 SCC (Crl.)-193

(Delivered by Hon'ble Imtiyaz Murtaza. J.)

1. This petition has been filed for
quashing of the F.I.R. registered at case
crime no.62 of 2007 under sections 395,
397, 384, 506 I.P.C. police station
Bargarh District Chitrakoot lodged by
respondent no. 4 Ramesh Chand Jain.

2. According to the allegations of
the first information report the informant
is proprietor of firm Vardhman Industrial
and Trading Corporation BKD College
Chauraha, Gwalior Road, Jhansi and deals
in the business of purchasing scrap in
3 All] Khan Saulat Hanif V. State of U.P. and others
725
auction from railways. On 26.6.2007 he
purchased iron scrap of PWI Shankargarh.
After purchasing the said scrap he
received a telephone call from the mobile
no.9336840875 of Mohd. Shahjad who is
an associate of Atiq Ahmad, Member of
Parliament threatening him that he had
committed big mistake by purchasing the
goods and he should be ready for heavy
financial losses and reminded him that
earlier also an attack was made on him at
the office of PW I, Shankergarh and at
that time Jafar Bhai, Farooq Bhai and
Shaulat Vakeel warned him that he should
not purchase the goods at Shankergarh
and Allahabad and also threatened him
not to register the F.I.R. otherwise he will
be killed. It was further mentioned in the
report that he tried to lodge the report
against them but on account of influence
of Atiq Ahmad, he could not lodge the
report. He did not succumb to the threats
extended to him and between 1.8.2007
and 4.8.2007 he started lifting the iron of
PW I Shankergarh and in the night at
about 1.30 to 2.30 p.m. on 4.8.2007 when
his loaded Truck was parked near
Madhyamik Vidyalay Kataiya Dandi
Road near Police Station Bargarh in a
planned manner the persons named in the
report through Aslam and 15-20 persons
forcibly looted the goods and loaded the
same in Truck No. UP 60- T 0687 and his
three chaukidar Jai Prakas, Naim Khan
and Sunil Raikwar were assaulted on the
point of gun and money was also snatched
from their pockets and after tying them
with a rope they escaped alongwith the
looted iron. His Chaukidar Jai Prakash
informed him on telephone about the
incident and told him that they had also
demanded Rs. two lacs from him and also
threatened him not to purchase the goods
otherwise he will be killed. After
receiving the information he came to
Bargarh from Allahabad and lodged the
report.

3. We have heard Shri Satish
Trivedi, Shri S.M.A. Kazmi and Shri D.S.
Misra, Senior Counsels, learned counsels
for the petitioner and the learned A.G.A.
for the State.

4. Shri Satish Trivedi submitted that
the petitioner is a practicing lawyer
having 21 years of experience and
whenever Bahujan Samaj Party comes
into power the members of Samajwadi
Party are falsely roped in different
criminal
cases.
The
petitioner
was
representing Atiq Ahmad in several cases
and has been falsely implicated only on
account of his professional relationship
with Atiq Ahmad. It is further submitted
that the allegations of the F.I.R. are highly
improbable and no prudent man will
believe the allegations to be true and from
bare perusal of the F.I.R. it cannot be said
that any allegations in the report attracts
the
cognizable
offence
against
the
petitioner. The name of the petitioner has
been mentioned alongwith other accused
persons
without
mentioning
his
participation about the incident for which
report has been lodged and further argued
that the allegations made against the
petitioner are vague and do not constitute
cognizable offence. Shri S.M.A. Kazmi
Sr. Advocate submitted that on account of
political reasons several reports have been
registered against the petitioner. In two
F.I.Rs. which were registered against the
petitioner his arrest had been stayed on
the ground that the petitioner was an
Advocate
and
he
represented
Atiq
Ahmad, Member of Parliament as his
counsel. It is further submitted that the
impugned F.1.R. is malafide and also
placed reliance on the decision of Apex
726 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Court in the case of State of Haryana Vs.
Bhajan Lal reported in 1992 SCC (Crl)
426 wherein it has been held that "the
extra ordinary powers under Article 226
or the inherent power under section 482
Cr.P.C can be exercised by the High
Court where the allegation made in the
F.I.R. or the complaint, even if they are
taken at their face value and accepted in
their
entirety
do
not
prima-facie
constitute any offence or make out a case
against the accused and where the
allegations made in the F.J.R. or the
complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused and
where a criminal proceeding is manifestly
attended with malafide and/or where the
proceeding is maliciously instituted with
an
ulterior
motive
for
wreaking
vengeance on the accused and with a view
to spite him due to private and personal
grudge."

5. Sri Kazmi further submitted that
no allegations have been made against the
petitioner which could attract the penal
provisions and the allegations made in the
impugned report are highly improbable. It
was pointed out that according to the
averments made in the report the Truck in
which the goods were looted had covered
only two kms. in 12 hours before it was
recovered by the police and no prudent
man can-believe these allegations as true.
Attentions of the Court was also drawn to
paragraphs 13, 14, 15 and 16 of the
petition where other instances were
mentioned about registration of false
reports against the lawyers of Atiq
Ahmad.

6. Shri D.S. Misra, learned counsel
for the petitioner submitted that perusal of
the F.I.R. indicates that the first informant
is not an eyewitness and he lodged the
report on the basis of information given
by his Chaukidar and this fact cannot be
accepted that the petitioner was known to
the Chaukidar of the informant from
before.

7. On the other hand learned A.G.A.
submits that the F.I.R. clearly discloses
the commission of cognizable offence.
There are allegations that Aslam and 1520 persons have looted the iron in a
planned manner at the instance of the
person whose names were mentioned in
the report and name of the petitioner finds
place in the report.

8. The learned A.G.A. pointed out
that in the report it is clearly mentioned
that "YOJNABADH TARIKE SE UPROKT
LOGO KE DWARA ASLAM ADI 15-20
LOGO NE TRUCK NO. UP 62-T 0687
ME JABRAN BHAR LIYA" and in view of
the specific averments in the report it
cannot be said that there is no allegation
against the petitioner. It is further pointed
out by the learned A.G.A. that after
registration of the report the goods of the
informant were recovered by the S.O.
Pramod Kumar Pandey and case crime
no. 63/07 under sections 194, 196, 177,
130(1)/207 M.V. Act was also registered
and the Driver of the Truck, Suresh Giri
was also arrested. Learned A.G.A. on the
basis of instructions received from the
investigating officer submitted that the
statement of witnesses Jai Prakash, Naim
Khan and Sunil Raikwar were recorded
and they also mentioned the name of the
petitioner.
3 All] Khan Saulat Hanif V. State of U.P. and others
727
9. We have considered the rival
contentions of the learned counsels for the
parties
and
also
perused
the
first
information report.

10. From the perusal of the F.I.R it
cannot be said that no cognizable offence
is made out. It is a settled position of law
that where the allegations made in the
F.I.R. if taken at their face value and
accepted in its entirety do not make out a
cognizable case, the proceedings can be
interfered with. The impugned first
information report prima facie discloses
commission of cognizable offence.

11. The Apex Court in the case of
Rajesh Bajaj Vs. State NCT of Delhi
reported in (1999) 3 SCC 259 has held
that "If factual foundation for the offence
has been laid in the complaint the court
should not hasten to quash criminal
proceedings during investigation stage
merely on the premise that one or two
ingredients have not been stated with
details. For quashing an FIR (a step which
is permitted only in extremely rare cases)
the information in the complaint must be
so bereft of even the basic facts which are
absolutely necessary for making out the
offence. In State of Haryana v. Bhajan
Lal I this Court laid down the premise on
which the FIR can be quashed in rare
cases. The following observations made
in the aforesaid decisions are a sound
reminder: (See p. 379, para 103)

"103. We also give a note of caution
to the effect that the power of quashing a
criminal proceeding should be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases; that
the court will not be justified in
embarking upon an enquiry as to the
reliability or genuineness or otherwise of
the allegations made in the FIR or the
complaint and that the extraordinary or
inherent powers do not confer an arbitrary
jurisdiction on the court to act according
to its whim or caprice."

12. We also do not find any
substance in the submission of the counsel
for the petitioner that the report should be
quashed because it has been lodged in
order to wreak vengeance due to political
reasons and the report is malafide. The
first information report cannot be quashed
on the ground of malafide or it has been
lodged on the ground of political enmity.

13. The Apex court in the case of
State of Karnataka Vs. .M. Devendrappa
2002 (3) SCC 89 has held that "when
information is lodged at the police station
and an offence is registered, then the
malafide of the informant would be of
secondary importance, it is material
collected during the investigation and the
evidence led in court which decide the
fate
of
the
accused
persons.
The
allegations of malafide against the
informant are of no consequence and
cannot by themselves be the basis for
quashing the proceedings."

14. Again in the case of Prakash
Singh Badal 2007 SCC (Crl.) 193 the
Apex Court has held that an investigation
should not be shut out at the thresh hold
because a political opponent or a person
with
political
background
difference
raises the allegation of commission of an
offence.

15. We have also perused the orders
staying the arrest of the petitioner in two
earlier FIRs passed by this court in which
one of us (I. Murtaza, J.) was also a
member. In both the cases allegations
728 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
against the petitioner were only connected
with his professional duties and it was
observed that "considering the fact that
the petitioner is a practicing lawyer and
he has been representing co-accused and
the fact that there is no allegation that
petitioner was in any manner involved in
the abduction and torture of respondent
no. 4 and that he has no other connection
with co-accused except that of counsel
and client, and his case is distinguishable
from the case of other co-accused
persons, this petition is disposed of finally
with a direction that arrest of the
petitioner in the aforesaid case shall
remain
stayed
during
investigation
provided
he
cooperates
with
the
investigation." But the facts of this case
are altogether different and the allegations
in the impugned first information report
are not even remotely connected with his
professional duties.

16. In this case after the registration
of the case the looted articles have been
recovered
by
the
police
and
also
statements of the witnesses were recorded
in which the name of the petitioner has
been mentioned and it cannot be said that
there is no allegation against the petitioner
to attract the commission of cognizable
offence. The Apex Court in the case of
Union Of India Vs. B.R. Bajaj reported in
(1994) 2 SCC 777 has held that at the
stage of the FIR the courts should refrain
from interfering when the FIR discloses
the commission of a cognizable offence
and
statutory
power
of
police
to
investigate can not be interfered with in
exercise of the inherent power of the
court.

17. In view of the above no
interference in required and the petition is
dismissed.
18. However, it is provided that in
case the petitioner surrenders within ten
days from today, his application for bail
shall
be
decided
expeditiously
in
accordance with law. Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2007

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 12959 of 1993

Khacheru

...Petitioner
Versus
Board of Revenue, U. P. at Allahabad &
others

 ...Respondents

Counsel for the Petitioner:
Sri. K.R. Sirohi
Sri. B.K. Pandey

Counsel for the Respondents:
Sri. K.B. Garg
Sri. M.K. Tripathi
Sri. A.D. Prabhakar
Sri. V.K. Singh

UPZA & LR Act-1955 Section 161 read
with UP Consolidation of Holdings Act
1963- Section 29(c) 2-exchange of land
reserved for public purpose by Gaon
Sabha-is
permissible-
provided
the
exchanged land also utilized for the
same purpose.

Held: Para 16
Giving strict interpretation to provisions
of Section 29(c)(2) of the Consolidation
of Holdings Act and holding that the land
earmarked in the final consolidation
scheme for a public purpose cannot be
used for any other purpose even though
the purpose may have been frustrated or
failed, like in the case in hand, would be
futile, because in that event public
purpose
for
which
the
land
was
earmarked would not be served having