# State of U.P v. Abid & Anr

- **Citation:** (2020) 2 ILRA 1365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Government Appeal No. 2116 of 2001
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-abid-anr-45477
- **Pages:** 5

## Headnote

1366 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri T.A. Khan, Sri Sushil Kumar Pandey

A. Govt. Appeal-against-order of acquittalu/ss. 364, 302 r/w 34 & 201 IPC-charges
not proved beyond reasonable ground-if
alternate view emanates-the view-in favour
of accused-to be preferred by A.C.-Appeal
Dismissed.

B.
Held,
in
our
considered
opinion
obviously, it cannot be said with certainty
that the motive behind committing the
offence was established for the reason that
it being the circumstantial evidence case,
the motive for committing the offence
forms central theme and unless and until
the motive is proved specifically, the
prosecution shall not be able to bring
home the charge framed against the
accused. This being the present position
when the case becomes weak on the
central point of motive, then the other
considerations fall on the periphery of the
case and that don't substantially go in
favour of the prosecution. The point under
consideration is very much based on fact
whether on the analogy made by the trial
Judge,
the
conclusion
drawn
was
altogether impossible or perverse on the
face or was based on material on record.
We upon careful perusal find that the
conclusion drawn is supported by the
material on record, as such no interference
is required. May be that another alternate
view is also emanating from the same
material but the view and the alternative,
which favours the accused, is to be
preferred
by
the
Appellate
Court.
Consequently,
this
Government
Appeal
lacks merit an the same is liable to be
dismissed. We hereby affirmed judgement
and order of acquittal dated 28.03.2001
passed by Additional Sessions Judge, court
no.8
Muzaffarnagar
in
Sessions
Trial
No.475 of 1996, under Sections 364, 302
read with 34, 201 I.P.C., police station-
Bhopa, district- Muzaffarnagar. The leave
to appeal is hereby refused.

List of cases cited:-

## Text

2 All. State of U.P. Vs. Abid & Anr.
1365
S.K.Mohd. Rafiq vs. Khalilul Rehman
AIR 1972 SC 2162.

33. The above aspect stands further
clarified from a subsequent judgment in
Kumar Gonsusab vs. Sri Mohammed
Miyan JT 2008 (9) SC 334 wherein it has
been held that a contract for sale does not
by itself create any interest in or charge on
immovable property. Therefore, where
parties enter into mere agreement to sell, it
creates no interest in the suit property in
favour of vendee. The proprietary title
does not validly pass from vendor to
vendee. Until that is completed, no right to
enforce pre-emption arises.

34. This also reiterate the fact that
right of pre-emption can be exercised only
when sale is complete and not before
thereto. When a plea is raised by defendant
that right of pre-emption has been waived,
onus lie upon defendant to prove it.

35. I may also add at this stage that
right of pre-emption has not been looked
upon with great favour by Courts since it
is in derogation of right of owner to
alienate his/her property. It is neither
illegal nor fraudulent for parties to a
transfer to avoid and defeat a claim for
pre-emption by all legitimate means. It is
a weak right and Courts would not go
out of their way to help the pre-emptor.

36. In the present case, defence
taken by defendants is that offer was
made to plaintiff before execution of sale
deed and since he did not agree, it
amounts to waiver of his right of preemption. This plea goes contrary to law,
as discussed above, since right of preemption has to be exercised only when
transfer
of
property
is
complete.
Therefore, it cannot be said that plaintiff
did not exercise his right of pre-emption
and waived such right before execution
of sale deed since till transfer is
completed, there is no occasion to
exercise right of pre-emption.

37. Moreover, Question (D), which
has been argued by learned counsel for
appellants, based on defence taken by
defendants that plaintiff was given offer
to
purchase
suit
property
before
execution of sale deed but he did not
agree and thereafter sale deed was
executed. This made it clear that there
was no waiver on the part of plainitff
and with regard to his subsequent
exercise of right of pre-emption, nothing
otherwise has been brought to the notice
of this Court. Hence, I find no reason but
to
answer
question
(D)
against
appellants.

38. No other point has been argued.

39. Appeal lacks merit and is
dismissed with costs throughout.
----------
(2020)02ILR A1365

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Government Appeal No. 2116 of 2001

State of U.P. ...Appellant
Versus
Abid & Anr. ...Respondents

Counsel for the Appellant:
Sri R.P. Dubey, A.G.A.

Counsel for the Respondents:
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri T.A. Khan, Sri Sushil Kumar Pandey

A. Govt. Appeal-against-order of acquittalu/ss. 364, 302 r/w 34 & 201 IPC-charges
not proved beyond reasonable ground-if
alternate view emanates-the view-in favour
of accused-to be preferred by A.C.-Appeal
Dismissed.

B.
Held,
in
our
considered
opinion
obviously, it cannot be said with certainty
that the motive behind committing the
offence was established for the reason that
it being the circumstantial evidence case,
the motive for committing the offence
forms central theme and unless and until
the motive is proved specifically, the
prosecution shall not be able to bring
home the charge framed against the
accused. This being the present position
when the case becomes weak on the
central point of motive, then the other
considerations fall on the periphery of the
case and that don't substantially go in
favour of the prosecution. The point under
consideration is very much based on fact
whether on the analogy made by the trial
Judge,
the
conclusion
drawn
was
altogether impossible or perverse on the
face or was based on material on record.
We upon careful perusal find that the
conclusion drawn is supported by the
material on record, as such no interference
is required. May be that another alternate
view is also emanating from the same
material but the view and the alternative,
which favours the accused, is to be
preferred
by
the
Appellate
Court.
Consequently,
this
Government
Appeal
lacks merit an the same is liable to be
dismissed. We hereby affirmed judgement
and order of acquittal dated 28.03.2001
passed by Additional Sessions Judge, court
no.8
Muzaffarnagar
in
Sessions
Trial
No.475 of 1996, under Sections 364, 302
read with 34, 201 I.P.C., police station-
Bhopa, district- Muzaffarnagar. The leave
to appeal is hereby refused.

List of cases cited:-

1. State of W.B. vs Mir Mohammad Omar and
others, 2000 8 SCC 382
(Delivered by Hon'ble Arvind Kumar
Mishra-I, J. & Hon'ble Gautam
Chowdhary, J.)

(1)

Report
of
the
C.J.M.-
Muzaffarnagar dated 18.04.2019 reflects
that accused- respondent no.1- Abid- has
expired 10-12 years ago.

(2) In view of the report of C.J.M.-
Muzaffarnagar dated 18.04.2019, this
appeal
stands
abated qua accused-
respondent no.1- Abid and is dismissed.

(3) Now, this appeal qua the
surviving respondent no.1- Amir- is for
adjudication.

(4) Case called out in the revised list.
No one is present on behalf of the
respondents to press this appeal.

(5) Heard Sri Krishna Pahal, learned
A.A.G. assisted by Sri Nafis Ahmad, Sri
Bhanu Prakash Singh, Sanjay Kumar
Rajbhar, Ajay Kumr Singh, Jitendra
Kumar and Mahesh Kumar Dwivedi,
learned A.G.A.s for the State, perused the
impugned judgement of acquittal and
record of the appeal.

(6) The instant Government Appeal
has been preferred by the State against
judgement and order of acquittal dated
28.03.2001 passed by Additional Sessions
Judge,
court no.8
Muzaffarnagar
in
Sessions Trial No.475 of 1996, under
Sections 364, 302 read with 34, 201 I.P.C.,
police
station-
Bhopa,
district-
Muzaffarnagar.
2 All. State of U.P. Vs. Abid & Anr.
1367

(7) Relevant facts as discernible from
the record giving rise to this appeal appear
to be that- complainant Patora s/o
Kutubuddin gave a written report in police
station- Bhopa on 4.1.1996 with the
allegations that both the accused were
usually coming to his house who belonged
to same village and they came to his house
at 4.30 p.m. and called Najjay and took
him with them and since then whereabouts
of Najjay is not known and there is
suspicion that he will be killed by the
accused- respondents. The report be
lodged and action be taken.

(8) On this written report, Exhibit
Ka-1, a first information report was lodged
at police station- Bhopa on 04.01.1996,
under section 3642 I.P.C. at case crime no.
1/96. The entry in the General Diary was
prepared as G.D. No.21 on 4.1.1996 at
6.15 hours in the aforesaid sections of
Indian Penal Code against the accused-
respondents.

(9) The investigation was carried out
by Investigating Officer- Sri P.K. Jetha,
who arrested the accused- respondents and
on their pointing out, the dead body of
Najjay was recovered on 12.1.1996,
thereafter case was converted under
Section 302, 201 IPC. The investigation
has
been
completed
and
after
the
investigation accused was charge- sheeted.

(10) Thereafter during course of hearing
on the point of charge, the court concerned
found the case covered under Section 364, 302
read with Section 34 and 201 IPC- against
accused, therefore, committed the case to the
Sessions Court, whereupon, accused were
heard on the point of charge and charges under
the aforesaid sections were framed against
aforesaid accused persons, who denied charges
and opted for trial.

(11) In order to prove its case,
prosecution produced P.W.1 Patora, P.W.2
Liyaqat, P.W.3 Jodh Singh, P.W.4 Dr. A.S.
Rathore, P.W.5 P.K. Jetha and P.W.6 H.C.
Surendra Pal. All the aforesaid prosecution
witnesses
are
witnesses
of
fact/formal
witnesses and the eye-witnesses. Thereafter,
evidence for the prosecution was closed and
the statement of accused persons were
recorded under Section 313 Cr.P.C., wherein,
it was submitted that they have been falsely
implicated in this case on account of
partibandi.

(12) The defence did not lead any
evidence, whatsoever and after considering the
merit of the case, charges were found not
proved beyond reasonable doubt. Resultantly,
the trial court returned finding of acquittal
against the accused.

(13) Consequently, this Government
Appeal.

(14) The contention of learned
A.A.G. for the State- appellant is specific
to the ambit that in this case, infact, the
charge was framed under Sections 364,
302, 201 IPC in Case Crime No.1/1996,
Police
Station-
Bhopa,
District-
Muzaffarnagar and accused was tried by
the court, wherein, the trial court after
vetting the entire testimony and the
circumstances of this case, found the case
not
proved
against
the
respondent-
accused, consequently, acquitted him of
the charges under Sections 364, 302 read
with 34 and Section 201 IPC.

(15) Learned A.A.G. assails the
aforesaid judgement and order of acquittal
dated 28.3.2001 on ground that the
findings drawn by the trial Judge are not
sustainable in view of fact that there is
categorical allegation and the allegation
1368 INDIAN LAW REPORTS ALLAHABAD SERIES
has been proved by the testimony of the
prosecution
witnesses
of
fact.
The
investigation was properly conducted and
charge- sheet was filed and that testimony
cannot be overlooked merely on casual
remark that there was no motivating force
existing against the deceased and working
for the accused to commit the crime in
question. It is not necessary that the dead
body should normally be recovered and it
must be identified and then alone the case
would fall under Section 302 IPC even in
the absence of corpus, the matter can be
considered and adjudicated upon provided
evidence is forthcoming in that regard.

(16) In support of his claim, learned
A.A.G. has placed reliance on (2000) 8
Supreme Court Cases 382, State of W.B.
versus Mir Mohammad Omar and
others, wherein under the prevailing facts
and circumstances of this case where
abduction for murder took place then in
the absence of proper identification the
fact of murder had not come to light and
only this much was heard that he will
eliminated the deceased. A presumption
was raised regarding death of the victim.
Learned A.A.G. submitted that in this
case, the testimony establishes the last
scene theory and proper identification of
the dead body/corpus is very much there,
still the trial court held otherwise that the
dead body was not identifiable and there
was no motive as such for committing the
offence, though some panchayat had taken
place.

(17) We have considered relevant
aspect of the case and taken note of fact
that the incident in question was reported
at the police station- Bhopa on 4.1.1996
that the accused took away with him- the
son of the informant- around 4.30 P.M.
and the whereabouts of the informants son
is not known/untraceable. The matter was
taken down at Case Crime No.1/96, under
Section 364 IPC, Police Station- Bhopa
and relevant entries were made in the
concerned General Diary and the case was
registered under aforesaid sections of
Indian Penal Code, vide Rapate No.14 on
4.1.1996. The matter was investigated by
the Investigating Officer Sri P.K. Jetha.
On
12.1.1996,
the
accused
was
apprehended by the Investigating Officer
upon whose pointing out the dead body
was allegedly recovered thereafter proper
action was taken and after completing the
investigation, charge- sheet was filed in
the case. Consequently, the trial court
charged the accused under Section 364,
302/34 IPC apart from framing charge
under Section 201 IPC. The prosecution
produced
its
witnesses
and
after
completion of the prosecution evidence,
the evidence was closed and statement of
the accused recorded under Section 313
Cr.P.C. No defence whatsoever was led.
The trial court while considering the
entirety of the case, recorded specific
finding on point of non-identifiable of the
corpus recovered. Apart from that the
motivating force behind committing the
offence was found non- existing. In view
of above, the circumstances explained and
it
was
found
that
the
chain
of
circumstances
were
not
complete,
therefore, passed the acquittal order in
favour of the accused.

(18) We have also perused the entire
judgement impugned and also considered
the submission so raised also perused the
carefully citation of the Hon'ble Apex
Court.

(19) In our considered opinion
obviously, it cannot be said with certainty
that the motive behind committing the
2 All. Afsar Vs. State of U.P. & Ors.
1369
offence was established for the reason that
it being the circumstantial evidence case,
the motive for committing the offence
forms central theme and unless and until
the motive is proved specifically, the
prosecution shall not be able to bring
home the charge framed against the
accused. This being the present position
when the case becomes weak on the
central point of motive, then the other
considerations fall on the periphery of the
case and that don't substantially go in
favour of the prosecution. The point under
consideration is very much based on fact
whether on the analogy made by the trial
Judge,
the
conclusion
drawn
was
altogether impossible or perverse on the
face or was based on material on record.
We upon careful perusal find that the
conclusion drawn is supported by the
material on record, as such no interference
is required. May be that another alternate
view is also emanating from the same
material but the view and the alternative,
which favours the accused, is to be
preferred by the Appellate Court.

(20) Consequently, this Government
Appeal lacks merit an the same is liable to be
dismissed. We hereby affirmed judgement and
order of acquittal dated 28.03.2001 passed by
Additional
Sessions
Judge,
court
no.8
Muzaffarnagar in Sessions Trial No.475 of
1996, under Sections 364, 302 read with 34,
201 I.P.C., police station- Bhopa, district-
Muzaffarnagar.

(21) The leave to appeal is hereby
refused.
----------
(2020)02ILR A1369

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2020
BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SAMIT GOPAL, J.

Habeas Corpus Writ Petition No. 893 of 2019

Afsar ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Sri Syed Ali Imam

Counsel for the Opposite Parties:
G.A., A.S.G.I., Sri Jitendra Prasad Mishra

A. Constitution of India - Article 226-
Habeas Corpus petition - National
Security Act (65 of 1980) - Section 3(2)
- Detention - Detenue involved in cow
slaughter case- Released on bail and
subsequently
detained
-
Unexplained
delay
of
19
days
in
furnishing
independant report by Central Agency -
No reason given as to why report from
Central agency was called for - Detention,
illegal. (Para-7,12,13)

Present matter are that the respondent No. 2
passed the impugned order of detention on the
grounds that the petitioner is involved in cow
slaughter case under Section 3/5/5(A)/8 of
Cow Slaughter (Prevention) Act. (Para-6)

Held:- The right of the petitioner under Article
22 (5) of the Constitution of India was seriously
infringed, rendering his detention as illegal.
(Para-13)

Petition allowed. (E-7)

List of cases cited:-

1. Afsar vs. State of U.P. ,Criminal Misc. Bail
Application No. 28863 of 2019

2. Sonu @ Firoz vs. State of U.P. and others,
Habeas Corpus Writ Petition No. 390 of 2019

3. Rajammal vs. State of T.N. and Another,
(1999) 1 SCC 417
4. K.M. Abdulla Kunhi vs. Union of India,
(1991) 1 SCC 476