# Shamshad Ahmad v. State of U.P. & Anr

- **Citation:** (2022) 1 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-17
- **Case number:** Application U/S 482/378/407 No. 4542 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamshad-ahmad-v-state-of-u-p-anr-47653
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Sectio 220 - Trial for more than
one offence , Indian Penal Code, 1860 -
Sections 147, 148, 149, 332, 336, 307,
353, 341, 427, 188 & 120-B - Public
Property (prevention of Damage) Act,
1985
-
Section
3/4,
Criminal
Law
(Amendment) Act, 1932 - Section 7 - Test
of sameness - where there is proximity of
time, or place or unity of purposes and
design or continuity of action in respect of
series of acts, the safe inference may be
drawn that they form part of the same
transactions
-
Merely
because
two
separate complaints had been lodged, did
not mean that they could not be clubbed
together and one charge-sheet could not
be filed. (Para -20, )

There are three FIRs - date of incidence same -
Time of incidence different - protesters were
opposing the implementation of CAA and NRC. -
In all the three FIRs, the sections of I.P.C. are
almost same except one or two charges - in first
two FIRs Section 3/4 of Act, 1985 and Section 7
of Act, 1932 are involved - in third FIR Section 7
of Act, 1932 is not involved - In all the three
FIRs, the complainants are Officers/ Officials of
Police Station - three separate chargesheet filed.
(Para - 32)

HELD:- Merely because three separate FIRs
have been filed do not mean that they could
not be clubbed together and one chargesheet could not be filed. Direction issued for
clubbing
all
the
three
Charge-sheets
together in as much as the occurrence
indicated in the second and third FIR is
prima-facie appearing as a fall out of the
first occurrence indicated in the first FIR.
Cognizance order quashed. petitioner is
directed to appear/ surrender before the
learned court below and may file bail
application. (Para - 34,37,40)

Three Petitions disposed of finally. (E-7)

List of Cases cited:-
1 All. Shamshad Ahmad Vs. State of U.P. & Anr.
245

## Text

244 INDIAN LAW REPORTS ALLAHABAD SERIES
unwarranted and uncalled for inasmuch as
the reasons so assigned vide order dated
6.1.2018 are not proper and justifiable.

54. Accordingly, I hereby quash/ set
aside the impugned prosecution sanction
order dated 1.10.2013.

55. I also hereby quash/ set aside the
cognizance order dated 12.11.2013 and the
order dated 6.1.2018 passed by the learned
trial court.

56. I am not interfering with the
charge sheet, therefore, it is open for the
prosecution/investigating
agency
i.e.
Central Bureau of Investigation to take
appropriate steps in the issue in question,
which are permissible under the law.

57. In view of the aforesaid terms, the
petitions are allowed.

58. No order as to costs.
----------
(2022)01ILR A244
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 4542 of 2021
with
Application U/S 482/378/407 No. 4525 of 2021
with
Application U/S 482/378/407 No. 4539 of 2021

Shamshad Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Vikas Vikram Singh, Adeel Ahmad, Akram
Azad, Yash Bharadwaj
Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Sectio 220 - Trial for more than
one offence , Indian Penal Code, 1860 -
Sections 147, 148, 149, 332, 336, 307,
353, 341, 427, 188 & 120-B - Public
Property (prevention of Damage) Act,
1985
-
Section
3/4,
Criminal
Law
(Amendment) Act, 1932 - Section 7 - Test
of sameness - where there is proximity of
time, or place or unity of purposes and
design or continuity of action in respect of
series of acts, the safe inference may be
drawn that they form part of the same
transactions
-
Merely
because
two
separate complaints had been lodged, did
not mean that they could not be clubbed
together and one charge-sheet could not
be filed. (Para -20, )

There are three FIRs - date of incidence same -
Time of incidence different - protesters were
opposing the implementation of CAA and NRC. -
In all the three FIRs, the sections of I.P.C. are
almost same except one or two charges - in first
two FIRs Section 3/4 of Act, 1985 and Section 7
of Act, 1932 are involved - in third FIR Section 7
of Act, 1932 is not involved - In all the three
FIRs, the complainants are Officers/ Officials of
Police Station - three separate chargesheet filed.
(Para - 32)

HELD:- Merely because three separate FIRs
have been filed do not mean that they could
not be clubbed together and one chargesheet could not be filed. Direction issued for
clubbing
all
the
three
Charge-sheets
together in as much as the occurrence
indicated in the second and third FIR is
prima-facie appearing as a fall out of the
first occurrence indicated in the first FIR.
Cognizance order quashed. petitioner is
directed to appear/ surrender before the
learned court below and may file bail
application. (Para - 34,37,40)

Three Petitions disposed of finally. (E-7)

List of Cases cited:-
1 All. Shamshad Ahmad Vs. State of U.P. & Anr.
245
1. T.T. Antony Vs St. of T.N., (2001) 6 SCC 181
referring para-27

2. Babubhai Vs St. of Guj. , (2010) 12 SCC 254

3. Anju Chaudhary Vs St. of U.P. , (2013) 6 SCC
384

4. C. Muniappan Vs St. of T.N., (2010) 9 SCC
567

5. Fakhruddin Ahmad Vs St. of Uttaranchal ,
(2008) 17 SCC 157

6. M/S. Leo Meridian Infrastructure Vs C.B.I.,
(WP No.21487 of 2018)

7. St. of Jharkhand Vs Lalu Prasad Yadav ,
(2017) 8 SCC 1

8. Satender Kumar Antil Vs C.B.I.& Anr,
Petition(s) for Special Leave to Appeal (Crl.)
No(s).5191/2021

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Vikas Vikram Singh,
learned counsel for the petitioner and Sri
Anurag
Varma,
learned
Additional
Government Advocate-I for the State.

2. In all the aforesaid petitions, the
same prayer has been made by the same
petitioner, therefore, these petitions are
being decided together with the consent of
learned counsel for the parties. Further, all
the petitions are being decided together by
a common judgment and Case :- U/S
482/378/407 No.-4542 of 2021 is being
treated as a leading case/petition and the
facts of the case have been taken from that
petition.

3. For the convenience, the prayers of
the aforesaid petitions are being reproduced
here-in-below:-

"(i) By means of this petition
i.e. Case :- U/S 482/378/407 No. - 4542 of
2021, the petitioner has prayed for
quashing the Charge-sheet No.100-A of
2020 dated 26.04.2020, under Sections
147, 148, 149, 332, 336, 307, 353, 341,
427, 188 & 120-B I.P.C read with Section
3/4 of Public Property (prevention of
Damage) Act, 1985 and Section 7 of
Criminal Law (Amendment) Act, 1932 and
order
dated
05.08.2020
whereby
cognizance of the said offences has been
taken
and
for
quashing
the
entire
proceedings of Case No.8070 of 2020
(State of U.P. vs. Shadab and others)
arising out of Case Crime No.490 of 2019,
Police Station-Dargah Sharif, DistrictBahraich, pending before the learned
Additional
Chief
Judicial
Magistrate,
Bahraich.

(ii) By means of this petition i.e.
Case :- U/S 482/378/407 No. - 4525 of
2021, the petitioner has prayed for
quashing the Charge-sheet No.99-A of
2020 dated 25.04.2020, under Sections
147, 148, 149, 332, 353, 336, 395, 397,
341, 427, 307, 188 & 120-B I.P.C, read
with 3/4 of Public Property (Prevention of
Damage) Act, 1985 and Section 7 of
Criminal Law (Amendment) Act, 1932 and
order
dated 26.11.2020
whereby
the
cognizance of the said offences has been
taken
and
for
quashing
the
entire
proceedings of Case No.8556 of 2020
(State of U.P. vs. Siraj Ahmad and others)
arising out of Case Crime No.490 of 2019,
Police Station-Dargah Sharif, DistrictBahraich, pending before the learned
Additional
Chief
Judicial
Magistrate,
Bahraich.

(iii) By means of this petition i.e.
Case :- U/S 482/378/407 No. - 4539 of
2021, the petitioner has prayed for
quashing the Charge-sheet No.33-A of
246 INDIAN LAW REPORTS ALLAHABAD SERIES
2020 dated 25.04.2020, under Sections
120-B, 147, 148, 149, 332, 336, 353, 427,
34, 188 I.P.C. read with Section 3/4 of
Public Property (Prevention of Damage)
Act, 1985 and order dated 26.08.2020
whereby the cognizance of the said offences
has been taken and for quashing the entire
proceedings of Case No.8557 of 2020
(State of U.P. vs. Sonu and others), arising
out of Case Crime No.492 of 2019, Police
Station-Dargah Sharif, District-Bahraich,
pending before the learned Additional
Chief Judicial Magistrate, Bahraich."

4. Learned counsel for the petitioner
has assailed 03 Charge-sheets bearing
Charge-sheet No.100-A of 2020 dated
26.04.2020, Charge-sheet No.99-A of 2020
dated 25.04.2020 and Charge-sheet No.33A of 2020 dated 25.04.2020 submitted
against
the
same
petitioner
on
25/26.04.2020 under more or less the same
sections for the incidence which took place
on the same day in the short interval. More
importantly, the present petitioner was not
named in any of the First Information
Reports (in short F.I.Rs.), but he has been
implicated during investigation and chargesheet has been filed invoking section 120-B
I.P.C.

5. Learned counsel for the petitioner
has submitted that since there is no
evidence of prior meeting of mind of the
present petitioner with other accused
persons,
therefore,
the
provisions
of
Section 120-B I.P.C. may not be invoked
against him. So in the absence of Section
120-B I.P.C. no charge-sheet against the
petitioner in other sections can be filed.

6. He has, however, also submitted
that if the prosecution wants to prosecute
the present petitioner in the aforesaid cases,
all the aforesaid three charge-sheets could
have been clubbed together and the second
charge-sheet and third charge-sheet in the
same incidence may be treated as a part of
the first charge-sheet. In other words, he
has submitted that instead of trying the
petitioner in three separate charge-sheets,
which are impugned herein, the present
petitioner may be tried in the first chargesheet treating second and third charge-sheet
as a part of first charge-sheet inasmuch as
the alleged second and third occurrence
were nothing but a fall out of the first
occurrence. He has also submitted that
since the incidence in question is of the
same day and the accused persons are
almost the same then a single charge-sheet
could have been filed in all three crime
cases, so that the petitioner who has been
implicated
subsequently
invoking
the
provisions of Section 120-B I.P.C. has to
face one trial in all the three crime cases
and in that situation the prosecution would
not suffer any inconvenience or prejudice
and it would be also convenient for the
petitioner to face a single trial. However,
the learned counsel for the petitioner has
reiterated that the petitioner has been
falsely implicated in this case as he has not
committed any offence as alleged.

7. The brief facts of the case are that
on 20.12.2019, at about 22:23 hours an
F.I.R. No.490 of 2019 (First F.I.R.)
regarding the alleged incidence, which took
place around 14:15 hours, has been lodged
under Sections 147, 148, 149, 332, 336,
307, 353, 341, 427, 188 & 120-B I.P.C read
with Section 3/4 of Public Property
(prevention of Damage) Act, 1985 and
Section 7 of Criminal Law (Amendment)
Act, 1932, Police Station-Dargah Sharif,
District-Bahraich, has been lodged.

8. It has been alleged in the F.I.R. that
on 20.12.2019, around 14:15 hours, a
Constable Sri Sumit Kumar Pal had
1 All. Shamshad Ahmad Vs. State of U.P. & Anr.
247
informed the complainant i.e. SSI- Sri
Vijay Kumar Singh, Police Station-Dargah
Sharif, District-Bahraich about the protest
in front of Badi Takiya by the people after
attending the Friday prayer (Jumme-kiNamaj). It has been further alleged that the
protesters were raising slogans against the
Government for implementing CAA and
NRC and about 100-150 unknown people
were allegedly throwing the bricks and
stones upon the police officials. Out of
those persons, 14 individuals had been
identified by the complainant.

9. The second F.I.R. bearing Case
Crime No.491 of 2019 was lodged on
21.12.2019 at about 22:23 hours for the
incidence which took place on 20.12.2019,
at around 15:00 hours, under Sections 147,
148, 149, 332, 353, 336, 395, 397, 341,
427, 307, 188 & 120-B I.P.C, read with
3/4 of Public Property (Prevention of
Damage) Act, 1985 and Section 7 of
Criminal Law (Amendment) Act, 1932,
Police Station-Dargah Sharif, DistrictBahraich. In this FIR, the allegations are
almost same only this much has been
indicated that about 600-700 people have
been gathered throwing bricks and stones
upon
the
police
officials
and
11
individuals had been identified by the
complainant i.e. SHO Sri Vinay Kumar
Saroj,
Police
Station-Dargah
Sharif,
District-Bahraich.

10. The third F.I.R. was lodged on
21.12.2019 at about 00:16 hours bearing
F.I.R. No.492 of 2019, under Sections 120B, 147, 148, 149, 332, 336, 353, 427, 34,
188 I.P.C. read with Section 3/4 of Public
Property (Prevention of Damage) Act,
1985,
Police
Station-Dargah
Sharif,
District-Bahraich.

11. The aforesaid third F.I.R. was
lodged by the Constable Driver Sri Dileep
Kumar Gautam, Police Station-Dargah
Sharif,
District-Bahraich,
driver
of
Additional Superintendent of Police (City)
(in short A.S.P.). As per allegation of this
FIR, around 15:30 hours the complainant
was present on West side of Chhawani
Chauraha and in front of Kanha Restaurant
the crowd of about 600-700 people came
from Chandpura and some people came
from Digiya-ki-Dargah road by throwing
stones on the vehicle, due to which the
A.S.P. moved forward along with his
associate Constables. Due to that incidence,
the vehicle of the A.S.P. got damaged and
two Constables sustained injuries.

12. Learned counsel for the petitioner
has submitted that the present petitioner is a
Manager of the Committee looking after
the day-to-day affairs of one Mosque
situated at Dargah Sharif, Barabanki.
Further, the present petitioner being a
Manager of the said Mosque was extending
full co-operation with the investigation and
his statement has been recorded by the
Investigating Officer, as copy of his
statement has been annexed with this
petition as Annexure No.8. Not only the
above, the petitioner was co-operating with
the District Administration and the State
Government for ensuring peaceful marches
and protest as he was regularly called for
meeting at the office of the District
Magistrate, Bahraich along with other
Police Officers of the district.

13. As per Sri Vikas Vikram Singh,
the petitioner was absolutely unaware as to
what information has been collected by the
Investigating Officer suggesting against the
present
petitioner
regarding
his
248 INDIAN LAW REPORTS ALLAHABAD SERIES
involvement in the incidence in question.
However, the present petitioner has been
implicated in the issue in question by the
Investigating
Officer
invoking
the
provisions of Section 120-B I.P.C.

14. Learned counsel for the petitioner
reiterates that no one can be implicated
invoking the provisions of Section 120-B
I.P.C. unless the Investigating Officer has
got concrete proof of prior meeting of mind
of the person with the other co-accused
against whom the FIR has been lodged.
Therefore, the implication of the petitioner
in the incidence in question is apparently
illegal and unwarranted and the learned
Magistrate before taking cognizance of the
aforesaid charge-sheet must have satisfied
on the aforesaid legal necessity, but without
being
satisfied
on
such
point,
the
Magistrate has taken cognizance against the
present petitioner also.

15. Sri Singh has submitted that
though the Magistrate has not taken
cognizance of the charge-sheet against the
petitioner properly, without careful perusal
of the material available on record, on
05.08.2020 when the cognizance of the
Charge-sheet No.100-A of 2020 dated
26.04.2020 has been taken, he should have
not taken cognizance of the Charge-sheet
No.33-A of 2020 dated 25.04.2020 on
26.08.2020 and the Charge-sheet No.99-A
of 2020 dates 25.04.2020 on 26.11.2020,
instead he must have treated the Chargesheet No.33-A of 2020 and Charge Sheet
No.99-A of 2020 as a part of the ChargeSheet No.100-A of 2020 clubbing of the
aforesaid charge-sheets together, holding
trial pursuant to the aforesaid single chargesheet.

16. Sri Singh has also submitted that
the petitioner despite the fact that he has
been falsely implicated but would not avoid
the trial and he shall be appearing before
the learned court concerned to face the trial
as he is fully confident that being a fully
innocent he will get justice. However, in
the same occurrence relating to the same
cognizable offence neither 03 FIRs should
have not been lodged nor 03 charge-sheets
should have been filed. So as to strengthen
the aforesaid contention Sri Singh has
placed reliance upon the judgment of
Hon'ble Apex Court rendered in re: T.T.
Antony vs. State of Tamil Nadu reported in
(2001) 6 SCC 181 referring para-27,
which reads as under:-

"27....... However, the sweeping
power of investigation does not warrant
subjecting a citizen each time to fresh
investigation by the police in respect of the
same incident, giving rise to one or more
cognizable offences, consequent upon filing
of successive FIRs whether before or after
filing the final report under Section 173 (2)
Cr.P.C. It would clearly be beyond the
purview of Sections 154 and 156 Cr.P.C.
nay, a case of abuse of the statutory power
of investigation in a given case. In our view
a case of fresh investigation based on the
second or successive FIRs, not being a
counter case, filed in connection with the
same or connected cognizable offence
alleged to have been committed in the
course of the same transaction and in
respect of which pursuant to the first FIR
either investigation is underway or final
report under Section 173 (2) has been
forwarded to the Magistrate, may be a fit
case for exercise of power under Section
482 Cr.P.C. or under Article 226/227 of the
Constitution."

17. Sri Singh has further submitted
that in an identical circumstances, the
Hon'ble Apex Court has interpreted the
1 All. Shamshad Ahmad Vs. State of U.P. & Anr.
249
'Test of Sameness'. He cited the decision of
Hon'ble Apex Court in re: Babubhai vs.
State of Gujarat reported in (2010) 12 SCC
254 referring para-21, which reads as
under:-

"21....whether both the FIRs
relate to the same incident in respect of the
same occurrence or are in regard to the
incidents which are two or more parts of
the same transaction.

The Supreme Court further held
that if the answer to above question is in
the affirmative, then the second FIR is
liable to be quashed."

18. He has also cited the dictum of
Hon'ble Apex Court rendered in re: Anju
Chaudhary vs. State of U.P. reported in
(2013) 6 SCC 384 referring para-22, which
reads as under:-

"22......The possibility that more
than one piece of information is given to
the police officer in charge of a police
station, in respect of the same incident
involving one or more than one cognizable
offences, cannot be ruled out. Other
materials and information given to or
received otherwise by the investigating
officer would be statements covered under
Section 162 of the Code. The Court in
order to examine the impact of one or more
FIRs has to rationalise the facts and
circumstances of each case and then apply
the test of ''sameness' to find out whether
both FIRs relate to the same incident and to
the same occurrence, are in regard to
incidents which are two or more parts of
the same transaction or relate completely
to two distinct occurrences. If the answer
falls in the first category, the second FIR
may be liable to be quashed."

19. Sri Singh has submitted that it
is admitted from bare perusal of the FIR
that the date of incident is the same, all the
FIRs have reference to the mob, however,
only in third FIR the
complainant/
Constable Driver does not make reference
to the cause of agitation while in other two
FIRs it has been clearly stated that the
protesters
were
agitating
against
the
implementation of CAA & NRC after
attending Friday prayer (Jumme-ki-Namaj).
The place of incidence in all the F.I.Rs. is
in the vicinity of 'Badi Takiya' where the
Mosque is situated. Thus, for one incident
which took place on the same day in the
proximity of time, three different FIRs
should have not been lodged. The FIR
No.491 of 2019 and FIR No.492 of 2019
are mere statements of S.H.O. and
Constable Driver of the same Police Station
regarding the protests taking place in the
vicinity of 'Badi Takiya', hence, the
subsequent two charge-sheets should have
been clubbed in the first charge-sheet.

20. Learned counsel for the petitioner
has cited the dictum of Hon'ble Apex Court
rendered in re: C. Muniappan vs. State of
Tamil Nadu reported in (2010) 9 SCC 567
referring para-37, which reads as under:-

"37.....There was no wrong in
clubbing together of the two crimes. Keeping
in view the totality of circumstances and
evidence, the second occurrence was nothing
but a fall out of the first occurrence. Merely
because two separate complaints had been
lodged, did not mean that they could not be
clubbed together and one charge-sheet could
not be filed."

21. Sri Vikas Vikram Singh has also
referred the Circular No.DG-21/2016 dated
250 INDIAN LAW REPORTS ALLAHABAD SERIES
26.04.2016 issued by the Director General
of Police, U.P. prohibiting the depracable
practice of lodging of multiple FIRs with
regard to one incident. The aforesaid
circular also states at serial No.4 that the
investigation of other subsequent FIRs shall
be recorded in one case diary. Therefore,
Sri Singh has submitted that in the present
case the aforesaid circular have been
flouted by the Investigating Officer for no
cogent reasons.

22. Sri Vikas Vikram Singh, learned
counsel for the petitioner, has reiterated that
the summoning order reflects absolutely
non-application of mind The Apex Court in
re: Fakhruddin Ahmad vs. State of
Uttaranchal reported in (2008) 17 SCC
157 has held that it is incumbent upon the
Magistrate that before taking cognizance of
an offence it is imperative that he must
have taken notice of accusation and applied
his mind to the allegations made in the
complaint or in the police report or in the
information received from the sources other
than the police report, as the case may be,
and the material filed therewith. It is only
when the Magistrate applies his mind and is
satisfied that the allegations, if proved,
would constitute an offence and decides to
initiate
proceedings
against
alleged
offender, that it can be positively stated that
he has taken cognizance of the offence.
Cognizance is in regard to the offence and
not the offender. In the present case, it is
prima-facie clear that the Magistrate has
not applied his mind judicially and has
taken cognizance mechanically without
going through the material available on
record carefully.

23.

Therefore,
Sri
Singh
has
submitted that this Court may interfere with
the
impugned
charge-sheets
or
the
subsequent
cognizance
orders
dated
26.08.2018 for Charge-sheet No.33-A of
2020 and 26.11.2020 for Charge-sheet
No.99-A of 2020, (both Charge-sheets are
dated 25.04.2020), may be quashed and
appropriate direction may be issued for
clubbing the second and third charge-sheet
with the first charge-sheet i.e. Charge-sheet
No.100-A of 2020 dated 26.04.2020 and
the trail in question be conducted pursuant
to the Charge-sheet No.100-A of 2020 in
the interest of justice as the petitioner is
ready to appear before the learned court
below pursuant to the summoning order
dated 05.08.2020.

24. Per contra, Sri Anurag Varma,
learned Additional Government Advocate
for the State has opposed the aforesaid
prayer of learned counsel for the petitioner
referring Section 220 Cr.P.C. by submitting
that the situation in question has been dealt
with by the aforesaid statutory provision
which provides that the present petitioner
will have to face one trial for all the three
charge-sheets. It would be apt to reproduce
Section 220 (1) Cr.P.C. as under:-

"Section 220 in The Code Of
Criminal Procedure, 1973.

220. Trial for more than one
offence. (1) If, in one series of acts so
connected together as to form the same
transaction, more offences than one are
committed by the same person, he may be
charged with, and tried at one trial for,
every such offence."

25. Sri Anurag Varma has cited one
decision of Telangana High Court rendered
in re: M/S. Leo Meridian Infrastructure....
vs. Central Bureau of Investigation (WP
No.21487 of 2018), wherein the same
prayer was made by the petitioner of that
petition to the effect that the registration of
multiple FIRs on the basis of allegations
1 All. Shamshad Ahmad Vs. State of U.P. & Anr.
251
which are essentially the same in all the
complaints is nothing but abuse of process
of law. Therefore, all the complaints be
clubbed in each one. The Telangana High
Court has held that since the petitioner of
that petition and its Promoters of company
availed loan facilities from consortium of
banks and the translations are different,
therefore, all the complaints may not be
clubbed together.

26. He has also cited the decision of
Hon'ble Apex Court rendered in re: State of
Jharkhand vs. Lalu Prasad Yadav reported
in (2017) 8 SCC 1, whereby the Hon'ble
Apex Court has explained the term of 'same
offence' which is different from 'same kind
of offence' and has held that if 'same kind of
offence' was committed multiple times then
each time it constitutes a separate offence
and therefore accused can be tried in
different trials.

27. On the basis of the statutory
prescription under Section 220 Cr.P.C. and
the aforesaid judgments, Sri Anurag Varma
has submitted that since the present
petitioner has not committed the same
offence but of same kind of offence,
therefore, in view of the dictum of Hon'ble
Apex Court in re: Lalu Prasad Yadav
(supra), he will have to be tried for all the
charge-sheets.

28. In rejoinder arguments Sri Vikas
Vikram Singh has submitted that so far as the
judgment of Telangana High Court rendered
in re: M/S. Leo Meridian Infrastructure
(supra) is concerned, such decision would not
be binding of this Court. Further, the facts
and circumstances of the present case are
different to the case of M/S. Leo Meridian
Infrastructure (supra) inasmuch as in the
case before Telangana High Court
admittedly the transactions from consortium
banks were different and loan agreement and
amount lent by the banks were different,
though they constituted as a consortium,
therefore, the multiple complaints were
lodged but in the present case the cause of
incidence, date of incidence, place of
incidence and sections under which the
charge-sheet has been filed are similar.

29. So far as the dictum of Hon'ble
Apex Court in re: Lalu Prasad Yadav (supra)
is concerned, the facts and circumstances of
Lalu Prasad Yadav (supra) are absolutely
different from the present case inasmuch as in
the case of Lalu Prasad Yadav (supra) the
same kind of offence had allegedly been
committed on different place and different
time, therefore, the Hon'ble Apex Court has
held that for separate offence the accused will
have to face different trials. The case of Lalu
Prasad Yadav (supra) has not be dealt with
under Section 220 (1) Cr.P.C. whereas in the
present case there is no quarrel by the
prosecution that petitioner can be tried in one
trial
but
for
different
charge-sheets.
Therefore, the cases so cited by the learned
Additional
Government
Advocate,
as
submitted by Sri Singh, would not be
applicable in the present case.

30. Having heard learned counsel for
the parties and having perused the material
available on record as well as the decisions
so cited, I am also of the considered
opinion that the principle regarding 'Test of
Sameness' should be followed by the
Investigating Agency.

31. The Police Department is also
conscious about the aforesaid proposition,
therefore, the Director General of Police
252 INDIAN LAW REPORTS ALLAHABAD SERIES
issued a detailed Circular NO.DG-21/2016
dated
26.04.2016
prohibiting
the
depracable practice of lodging of multiple
F.I.Rs with regard to one incident. It would
be apt to reproduce para-4 of the aforesaid
Circular, which is as under:-

"4. ;fn izdj.k esa Multiple FIRs nTkZ
gS ijUrq cross FIR ntZ ugh gS] rks ckn esa ntZ
leLr FIRs dks 162 lh0vkj0ih0lh0 ds vUrxZr
dk;Zokgh ekurs gq, izFke FIR dh foospuk esa lfEEkfyr
fd;k tk,A ,slh lHkh FIRs ds lEcU/k esa ,d gh dsl
Mk;jh fdrk dh tk, ftlesa lHkh FIRs ds rF;ksa dk
lekos'k djds foospuk dh tk,A

bl lUnHkZ esa ekuuh; mPpre~ U;k;ky;
}kjk T.T. Antony Vs. State of Kerala & Ors.
(2001) 6 SCC 181 esa fn;s x;s fu.kZ; dk m)gj.k
vkids ekxZn'kZu gsrq fuEukafdr gS&

"This court dealt with a case
wherein in respect of the same cognizable
offence and same occurrence two FIRs had
beenl lodged and the court held that there
can be no second FIR and no fresh
investigation on receipt of every subsequent
information in respect of the same
cognizable offence or same occurrence
giving rise to one or more cognizable
offences. The investigating agency has to
proceed only on the information about
commission of a cognizable offence which
is first entered in the Police Station diary
by the Officer Incharge under Section 158
of the Code of Criminal Procedure, 1973
(here-in-after called the Cr.P.C.) and all
other subsequent information would be
covered by Section 162 Cr.P.C. for the
reason that it is the duty of the
Investigating
Officer
not
merely
to
investigate the cognizable offence report in
the FIR but also other connected offences
found to have been committed in the curse
of the same transaction or the same
occurrence and the Investigating Officer
has to file one or more reports under
Section 173 Cr.P.C.

32. In the present case, there are three
FIRs, first bearing Case Crime No.490 of
2019, second bearing Case Crime No.491
of 2019 and third is bearing Case Crime
No.492 of 2019. In all the aforesaid FIRs
the date of incidence is 20.12.2019. Time
of incidence in all the three FIRs is 4:15
P.M.,
15:00
P.M.
and
15:30
P.M.
respectively. In all the three FIRs, the
protesters
were
opposing
the
implementation of CAA and NRC. In all
the three FIRs, the sections of I.P.C. are
almost same except one or two charges and
in first two FIRs Section 3/4 of Act, 1985
and Section 7 of Act, 1932 are involved.
However, in third FIR Section 7 of Act,
1932 is not involved. In all the three FIRs,
the complainants are Officers/ Officials of
Police Station-Dargah Sharif, DistrictBahraich.

33. Therefore, 'Test of Sameness'
which says that where there is proximity of
time, or place or unity of purposes and
design or continuity of action in respect of
series of acts, the safe inference may be
drawn that they form part of the same
transactions, therefore, the aforesaid test
appears to have been applied in the present
case.

34. In view of the above, I find it
appropriate that the direction may be issued
for clubbing all the three Charge-sheets
together inasmuch as the occurrence
indicated in the second and third FIR is
prima-facie appearing as a fall out of the
first occurrence indicated in the first FIR.
Therefore, I am an agreement with the
dictum of Hon'ble Apex Court in re: C.
Muniappan (supra) to the effect that
merely because three separate FIRs have
been filed do not mean that they could not
be clubbed together and one charge-sheet
could not be filed.
1 All. Shamshad Ahmad Vs. State of U.P. & Anr.
253

35. In the present case, Investigating
Officer should have clubbed all the FIRs
and should have filed one charge-sheet.
Such act of clubbing would have been in
conformity with the Circular No.DG21/2016 dated 26.04.2016, which has been
issued by the Director General of Police,
Uttar Pradesh in consonance with the
direction of Hon'ble Apex Court issued in
re: T.T. Anthony (supra).

36. So far as the manner in which the
learned Magistrate has taken cognizance in
all the three impugned charge-sheets is
concerned, I must observe that while taking
cognizance it appears that he has not applied
his judicious mind and has not appreciated
and perused the material available on record,
particularly, not examined the complicity and
involvement of the present petitioner who has
been implicated in the present case invoking
Section 120-B I.P.C. Even if the Magistrate
has appreciated and perused the material
available on record while taking cognizance
of the FIR dated 05.08.2020, at least while
taking cognizance of second and third
charge-sheet, the Magistrate must have asked
the Investigating Agency as to why after
carrying out separate investigation in all the
three, more or less similar, incidents, three
separate charge-sheets have been filed
therein. The Magistrate must have asked as to
why all the three charge-sheets have not been
clubbed together for the purposes of trial. The
learned Magistrate must have seen that what
prejudice would be caused to the prosecution
if the single charge-sheet is filed clubbing all
the charge-sheets together inasmuch as
Section 220 Cr.P.C. itself authorizes that in a
similar situation the accused person should be
tried in one trial. Therefore, the guidelines of
Hon'ble Apex Court in re:Fakhruddin
Ahmad (supra) must have been followed by
the learned Magistrate while taking
cognizance of the charge-sheet.

37. Therefore, without interfering
with the impugned charge-sheets, I hereby
quash
the
cognizance
order
dated
26.08.2020 whereby the cognizance has
been taken of the Charge-sheet No.33-A of
2020 dated 25.04.2020 and the cognizance
order
dated
26.11.2020 whereby
the
cognizance has been taken of the Chargesheet No.99-A of 2020 dated 25.04.2020.

38. I am not interfering with the
cognizance
order
dated
05.08.2020
whereby the cognizance of Charge-sheet
No.100-A of 2020 dated 26.04.2020 has
been taken. Pursuance to the cognizance
order dated 05.08.2020, it shall be deemed
that the learned court below has taken
cognizance of the Charge-sheet No.33-A of
2020 dated 25.04.2020 and the Chargesheet No.99-A of 2020 dated 25.04.2020,
as both the charge-sheets have been filed
one day prior to the Charge-sheet No.100-A
of 2020 dated 26.04.2020.

39. The Charge-sheet No.33-A of
2020 dated 25.04.2020 and Charge-sheet
No.99-A of 2020 dated 25.04.2020 shall be
treated as part of Charge-sheet No.100-A of
2020 dated 26.04.2020.

40. The petitioner is directed to
appear/ surrender before the learned court
below pursuant to cognizance order dated
05.08.2020 within a period of three weeks
from today and may file bail application
and if such bail application is filed within
the aforesaid stipulated time, the same may
be decided expeditiously, preferably on the
same day in the light of dictum of the Apex
Court in re; Satender Kumar Antil Vs.
254 INDIAN LAW REPORTS ALLAHABAD SERIES
Central Bureau of Investigation & Anr,
Petition(s) for Special Leave to Appeal
(Crl.) No(s).5191/2021.

41. In view of the aforesaid terms, all
the three petitions are disposed of finally.
----------
(2022)01ILR A254
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 5475 of 2021

Praveen Kumar Singh @ Praveen Singh &
Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Agendra Sinha, S.D. Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure,
1973
-
Section
482
-
Inherent power - Indian Penal Code,
1860 - Sections 147, 148, 354, 452, 323,
504 & 506 , The Protection of Children
From
Sexual
Offences
Act,
2012
-
Section
7/8
,
The
Scheduled
Castes/Scheduled
Tribes
(Prevention
from Atrocities) Act, 1989 - Sections 3
(i) (r), 3 (i) (s), 3 (ii) (v) - if any accused
person has not been arrested during
investigation and has cooperated with
the investigation, there is no need to
arrest him after filing charge sheet,
particularly, if the nature of offences is
not so serious - arrest is not mandatory
in all cases and if the accused person is
cooperating with investigation, there is
no need to arrest . (Para - 10)

Quashing of Charge-sheet , summoning order,
non-bailable
warrant
including
the
entire
proceeding - applicants/ petitioners have not
been arrested during investigation - status of
accused described - police granted bail - fully
co-operated with the investigation - criminal
case being lodged against the petitioners as a
counter blast being a cross case.(Para - 4)

HELD:-The courts have to be extremely careful
before issuing non-bailable warrants. In the
order where the bailable/ non-bailable warrant
or proclamation under Section 82 Cr.P.C. is
issued, the court must indicate that despite the
service of summons or bailable warrant or nonbailable warrant the accused has not appeared.
In the absence of such indication the coercive
orders, would be treated as if they failed the
test of statutory prescriptions prescribed under
Sections 64 & 65 of the Cr.P.C. . (Para - 13)

Petition disposed of finally. (E-7)

List of Cases cited:-

1. Inder Mohan Goswami & anr. Vs St. of
Uttaranchal & ors. , (2007) 12 SCC 1

2. Satender Kumar Antil Vs C.B.I. & Anr,
Petition(s) for Special Leave to Appeal (Crl.)
No(s).5191/2021

3. Aman Preet Singh Vs C.B.I. through Director,
Criminal Appeal No.929 of 2021

4. Court on its own Motion Vs C.B.I., (2004) 72
DRJ 629

5. Siddharth Vs The St. of U.P.& anr., Criminal
Appeal No.838 of 2021 (arising out of SLP (Crl.)
No.5442/2021)

6. Joginder Kumar Vs St. of U.P. & ors, (1994) 4
SCC 260

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri S.D. Singh, learned
counsel for the petitioners and Sri Ran