# Waris Ali v. The State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 2045
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Application U/S 482 No. 2828 of 2013
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waris-ali-v-the-state-of-u-p-anr-52042
- **Pages:** 11

## Headnote

2046 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Indian Penal Code, 1860 -
Section 447-Applicant was one of the Director
of a company-the said company sold a land to
another company -Mr. Qazi Ajmal Hussain is a
common link in both the company as he is one
of the director in both the companies-after the
land was sold to another company-Applicant and
his company had no concern with the said landimpugned F.I.R. alleged that Qazi Ajmal Hussain
was carrying out construction on the said land
against the approved map by breaking the sealApplicant also implicated for violation of sec. 447
I.P.C.-Applicant was not the owner of the said
plot-no evidence to show that notice issued u/s
441 I.P.C. by the complainant had been served
on the accused-unless mandatory notice servedthe civil trespass could not get converted into a
criminal trespass-could not be convicted u/s 447
I.P.C.-filing charge sheet against Applicant is a
serious abuse of process of the Court.

Application u/s 482 Cr.P.C. allowed. (E-9)

List of Cases cited:

## Text

5 All. Waris Ali Vs. The State of U.P. & Anr.
2045
demolition of wall is done by the accused,
no one prevented them, instead it appears
that they remained there as spectators and a
20 years old peepal tree would not fall
down if an adjacent wall is being
demolished. Further, there was no intention
on the part of the accused-applicants to
cause any danger to anybody and even if it
is believed that a tree falls down on the road
and one passer by sustains injury(ies), it
would be an accident and cannot be a case
under Section 304 IPC. and also taking into
account the role of the police, allegations in
the FIR and the death of the deceased
occurred because of falling of peepal tree
on the deceased demonstrates that no
knowledge can be attributed to the accused
that the tree would fall on a particular
direction where a passer-by would be
passing through the road at that particular
time. The police were present when the
accused were demolishing the wall. It was
incumbent upon them to prevent the
accused if there was any illegal activity.
From the perusal of the FIR, it appears that
the police did not take any action to prevent
demolition of the wall.

38. Further, in the present case learned
Chief Judicial Magistrate, Lucknow has
failed to apply his judicial mind to the facts
of the case and the law applicable thereto
while summoning the applicants and
issuing Non-bailable warrants, the Chief
Judicial Magistrate has not examined the
nature of allegations made in the FIR and
the evidences both oral and documentary in
support thereof.

39. Accordingly, the the impugned
summoning and cognizance order dated
30.03.2016 and consequential orders dated
11.01.2018 and 11.07.2018 passed by
learned
Chief
Judicial
Magistrate,
Lucknow
and
charge
sheet
dated
13.07.2015 and the entire proceeding in
Criminal Case No.16768 of 2016; State
vs. Prabhat Agarwal & Others arising out
of Case Crime No.224 of 2014 under
Section 304 I.P.C. and Section 3 of
Prevention of Damage to Public Property
Act pending in the court of Chief Judicial
Magistrate,
Lucknow
are
hereby
quashed.

40. For the reasons discussed above,
the instant application under Section 482
Cr.P.C. filed by the applicants is allowed
in respect of the instant applicant,
namely-Vivek Singh @ Monu and Mohd.
Danish @ Mohd. Danish Azad.

41. Office is directed to transmit a
copy of this order to the trial court
concerned for its necessary compliance.

42. No order as to cost(s).
---------
(2024) 5 ILRA 2045
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 2828 of 2013

Waris Ali ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Neeraj Kumar, Ambrish Singh Yadav, Amit
Jaiswal Ojus Law, Gaurav Saxena, Juhi
Saxena, Lalla Chauhan, Rajni Saxena, Rishi
Saxena, Sheena Saxena, Tanveer Ahmad
Siddiqu

Counsel for the Opposite Parties:
G.A., Ratnesh Chandra
2046 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Indian Penal Code, 1860 -
Section 447-Applicant was one of the Director
of a company-the said company sold a land to
another company -Mr. Qazi Ajmal Hussain is a
common link in both the company as he is one
of the director in both the companies-after the
land was sold to another company-Applicant and
his company had no concern with the said landimpugned F.I.R. alleged that Qazi Ajmal Hussain
was carrying out construction on the said land
against the approved map by breaking the sealApplicant also implicated for violation of sec. 447
I.P.C.-Applicant was not the owner of the said
plot-no evidence to show that notice issued u/s
441 I.P.C. by the complainant had been served
on the accused-unless mandatory notice servedthe civil trespass could not get converted into a
criminal trespass-could not be convicted u/s 447
I.P.C.-filing charge sheet against Applicant is a
serious abuse of process of the Court.

Application u/s 482 Cr.P.C. allowed. (E-9)

List of Cases cited:

1. Sundar Babu Vs St. of T.N.-Criminal Appeal
No. 773 of 2003

2. St. of Har. Vs Bhajan Lal 1992 SCC(Cr.) 426

3. Lalankumar Singh & ors. Vs St. of Mah.
reported in 2022 SCC Online SC 9 1383

4. R.P. Kapoor Vs St. of Pun., AIR 1960 S.C. 866

5. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

6. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283

7. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918.

8. S.W. Palankattkar & ors. Vs St. of Bihar, 2002
(44) ACC 168

9. M/s Pepsi Food Ltd. & anr. Vs Special Judicial
Magistrate & ors.: 1998 (5) SCC 749

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Sudeep Seth, learned
Senior Advocate assisted by Sri Tanveer
Ahmad Siddiqui and Sri Amit Jaiswal,
learned counsel for the applicant, Sri Ashok
Kumar Singh, learned A.G.A.-I for the
State Opposite Party No.1 and Sri Ratnesh
Chandra, Advocate alongwith Ms. Mansi
Singh, learned counsel for the respondent
no.2 i.e. Lucknow Development Authority.

2. The instant application under
Section 482 Cr.P.C. has been filed with a
prayer to quash the Charge Sheet of the
Case Crime No.8/2012, under Section 447
I.P.C., Police Station Mahanagar, District
Lucknow pending before the learned
Additional Chief Judicial Magistrate-IV,
Lucknow.
Further,
in
the
rejoinder
affidavit,
summoning
order
dated
15.05.2012 has also been challenged
alongwith
the
entire
proceedings
in
pursuance thereof.
3. On 04.01.2024,
a Co-ordinate Bench of this Court has
passed the following order:-

"1. Heard Sri Sudeep Seth,
learned Senior Advocate, assisted by Sri
Tanveer Ahmad Siddiqui and Sri Amit
Jaiswal, learned counsel for petitioner and
Sri Aniruddh Kumar Singh, learned AGA-I
for the State as well as Sri Ratnesh
Chandra, learned counsel for opposite
party no.2.

2. Learned counsel for the
petitioner has vehemently submitted that
the investigation has not been conducted by
the police properly inasmuch as the
petitioner departed from Lucknow (India)
to Jeddah (Saudi Arabia) on 19.04.2012
and returned from there on 16.05.2012 as
copy of passport has been enclosed as
Annexure No.9 to the petition, which
indicates
those
facts.
However,
the
statement of the petitioner is said to have
been recorded by the police on 22.04.2012
5 All. Waris Ali Vs. The State of U.P. & Anr.
2047
indicating therein that the petitioner
appeared before the police agency and
recorded his statement at Lucknow. Sri
Seth, learned Senior Advocate, has stated
that this cannot be possible in any manner
that a person concerned is at abroad from
19.04.2012 to 16.05.2012 but has recorded
his statement on 22.04.2012. The specific
recital to this effect has been given not only
in the petition but also in the rejoinder
affidavit, which was filed on 30.10.2023 to
the counter affidavit of the LDA. In the
rejoinder affidavit, typed copy of the case
diary has been enclosed, which clearly
shows that statement of the petitioner has
been recorded at Lucknow on 22.04.2012.

3. On being confronted the
learned AGA as to how statement of the
petitioner could have been recorded at
Lucknow on 22.04.2012 when he was out of
India from 19.04.2012 to 16.05.2012,
learned AGA prays for and is granted two
weeks and no more time to file counter
affidavit/ short counter affidavit replying
the contents of the petition as well as of the
rejoinder affidavit.

4. It is expected that copy of
counter affidavit/ short counter affidavit
shall be provided to the learned counsel for
the petitioner on or before 20.01.2024.
Thereafter, a week's time is given to learned
counsel for the petitioner to file rejoinder
affidavit.

5. List on 31.01.2024 within top
ten cases.

6. It is made clear that this case
shall not be adjourned on the next date.

7. Interim order, if any, shall
continue till the next date of listing. "

4. Despite the aforesaid order, learned
A.G.A.-I for the State has not filed counter
affidavit till date, as such, this Court has no
other option but to proceed further for final
argument.

5. Learned Senior Counsel for the
applicant submitted that the applicant was
one of the Director of the Company eConstruction
Solutions
Pvt.
Limited
situated at e-Chamber, near ISRO Space
Center, Kursi Road, Lucknow which was
duly registered under the Companies Act,
1956. The said company consisted of three
Directors including the applicant and the
other two directors of the company, namely,
Mr Qazi Azmal Husain S/o Qazi Akhtar
Husain and Mr Altaf Husain S/o Mr Ashfaq
Husain.

6. Learned Senior Counsel further
submitted that the said company i.e. eConstruction Solutions Pvt. Ltd. purchased
a piece of land measuring about 7074 sq.
feet from one Mr. Shyam Kapoor S/o Mr.
N.N. Kapoor by paying a consideration of
Rs.56,00,000/ - (Rs Fifty Six Lakhs only)
through Registered Sale Deed executed on
23.09.2005. Thereafter, on 12-03-2010, the
said company, under the signature of all
three Directors, sold the said piece of Land
for Rs 86,98,000/- (Rs Eighty Six Lakhs
Ninety Eight Thousand only) to another
company i.e. M/s Mega Infra Developers
India Pvt. Ltd, which was also duly
registered under the Companies Act, 1956
and consisted of only two Directors,
namely, Mr. Qazi Ajmal Husain S/o Qazi
Akhtar and Mr. Rajendra Kumar Verma S/o
Ramuggar Verma. However, there is no
relation between the two companies but
only the common link i.e. Mr. Qazi Ajmal
Husain, who is one of the Director in both
the companies.

7. Learned Senior Counsel further
submitted that after the said piece of Land
was sold to M/s Mega Infra Developers
India Pvt. Ltd, the e-Construction Solutions
Pvt. Ltd had no concern with the said piece
of Land, however, upon the statement dated
2048 INDIAN LAW REPORTS ALLAHABAD SERIES
15.01.2012 given by Mr. Rakesh Kumar
Singh, Assistant Engineer, Zone 11, LDA,
who is also impleaded as Opposite Party
No. 2, the said case crime was registered
with allegations that Qazi Ajmal Hussain,
Director e-Constructions, was carrying out
construction
on
C-822
Mahanagar,
Lucknow against the approved map,
therefore, it was sealed on 30.09.2011 and
when it was checked again on 09.01.2012,
it was found that the construction continued
after breaking the seal.

8. Learned Senior Counsel further
submitted that investigation was carried out
by the concerned Investigating Officer and
after concluding the investigation, he filed
the charge sheet on 22.04.2012.

9. Learned Senior Counsel further
submitted that to the utter surprise of the
applicant, the concerned Investigating
Officer in the said charge sheet shown to
have recorded the statement of the
applicant on 22.04.2012 at Police Station
Mahanagar, District Lucknow whereas on
the contrary, the applicant was not even in
the country when the said statement of the
applicant had been shown to have been
recorded as the applicant left the country
for Jeddah (Saudi Arabia) on 19.04.2012
and came back on 16.05.2012 to India
which is evident from the records of the
Passport of the applicant, the same is also
apparent from copy of applicant's passport
with visa stamp, which is annexed as
annexue no.9 to the affidavit filed
alongwith the application under Section
482 Cr.P.C. Thus, learned Senior Counsel
submitted that the applicant has been
falsely implicated in the said case crime
number and the entire investigation shown
to have been done by the concerning
Investigating
Officer
seems
to
be
manufactured and sham and is not tenable
in the eyes of law. The statement dated
22.04.2012 is being reproduced hereunder:-

"बयान अमभयुक्त वाररत अली पुत् स्व० आमक अली
मन० बी-77 मनराला नगर थाना हसनगंज लखनऊ ने बदररयाफ्त
पूछने पर बताया मक भूखण्ड तंख्या ती-822 ते० जी० महानगर को
मैने व मेरे दो पाटटन काजी अजमत हुसैन व अल्ताफ हुसैन द्वारा ग्र्य
मकया गया है। उक्त भूखण्ड पर हम तीनो लोगों द्वारा फ्लैट का मनमाटण
मकया गया है। हम लोगों द्वारा एल०डी०२० से नक्शा पात कराया
गया है। मकन्तु थौडा बहुत कभी नक्श के मवपरीत हो गया है मजसके
सम्बन्ध में हम लोगों की बात एल०डी०ए० से तमन पुमल्क जमा
करने की चल रही है। शीघ्र ही तय पुल्क जमा करा मदया जायेगा।
यही मेरा बयान है।"

10. Learned Senior Counsel further
submitted that the applicant is an innocent
person, who has been falsely implicated in
the said case crime number, having no
relation with the owner of the said plot i.e.
M/s Mega Infra Developers Pvt. Ltd. The
company, M/s Mega Infra Developer Pvt.
Ltd has neither been implicated as accused
nor included in the charge sheet.

11. Learned Senior Counsel further
submitted that the Hon'ble High Court
appreciated the aforesaid fact and granted
absolute stay on the proceeding of the said
case crime number vide its order dated
14.06.2013, which is being reproduced
hereunder:-

"Sri Nadeem Murtaza accepts
notice on behalf of respondent no.2 who
prays for and is granted six weeks time to
file counter-affidavit.

List thereafter.

Meanwhile, further proceedings
of Case No. 792 of 2012, pending in the
court
of
Additional
Chief
Judicial
Magistrate-IV, Lucknow, shall remain
stayed. "
5 All. Waris Ali Vs. The State of U.P. & Anr.
2049

12. Learned Senior Counsel further
submitted that Investigating Officer had
also recorded statement under Section 161
Cr.P.C. of Mr. V.C. Zaria, who is another
engineer,
Zone
11, LDA
which
is
corroborating
the
above
mentioned
statement of Mr. Rakesh Kumar Singh. As
per statement of Mr. Rakesh Kumar Singh,
following brief facts arises:-

i) He found that Qazi Ajmal Husain
S/o Qazi Akhtar Husain, Director M/s eConstructions Solution Pvt. Ltd., situated at
e-chambers near ISRO Space Center, Kursi
Road, Lucknow was illegally constructing
building on plot of land no. C-822, Sector -C,
Mahanagar, Lucknow measuring about 7074
sq. feet against the approved plan of L.D.A.

ii) Thus, the Police stopped the
construction work, which was being illegally
done according to prosecution by Qazi Ajmal
Husain and on 30.9.2011 sealed the same.

iii) According to prosecution, Qazi
Ajmal
Husain
was
again
found
on
09.01.2012, resuming the construction work
against the law by breaking the seal and
defying the orders.

iv) Thus, statement was recorded
U/s- 161 Cr.P.C. by the Investigating Officer
of Police Station Mahanagar, District
Lucknow on account of complaint of the
Informant, Mr. Rakesh Singh against Qazi
Ajmal Husain at Mahanagar Police Station,
District- Lucknow.

13. Learned Senior Counsel further
submitted that accused Qazi Ajmal
Husain S/o Qazi Akhtar Husain, Director
M/s e-Constructions Solution Pvt. Ltd.
appeared before the Police Station
Mahanagar,
District
Lucknow
and
Investigating officer has recorded his
statement under Section 161 Cr.P.C. As
per his statement, following facts arises:-

i) He alongwith his two other
partners of the M/s e-Constructions
Solution Pvt. Ltd i.e. (1) Waris Ali S/o
Late Ashiq Ali and (2) Altaf Husain S/o
Mr. Ashfaq Husain bought the plot of land
no. C-822, Sector -C, Mahanagar,
Lucknow measuring about 7074 sq. feet
jointly.

ii) All the three directors of the
company jointly decided to construct flats
on the plot of land and thus they
submitted an application to L.D.A. for the
approval of the plan and map of the
construction.

iii) Some construction was
slightly in contravention to the approved
plan and thus they were trying to resolve
the matter by bringing the matter in front
of
L.D.A
and
submission
of
the
compounding fees.

iv) The accused assured of
submitting the compounding fees as soon
as possible.

14. Learned Senior Counsel further
submitted
that
according
to
the
Investigating Officer (R. R. Kushwaha),
Mr. Waris Ali S/o Late Ashiq Ali
(applicant) R/o B-77, Nirala Nagar,
District-Lucknow, Uttar Pradesh during
investigation on 22.04.2012 stated :-

i) He along with his two other
Partners of the M/s e-Constructions
Solution Pvt. Ltd i.e. (1) Waris Ali S/o Late
Ashiq Ali and (2) Altaf Husain S/o Mr.
Ashfaq Husain bought the plot of land no.
C-822, Sector-C, Mahanagar, Lucknow
measuring about 7074 sq. feet jointly.

ii) All the three directors of the
company jointly decided to construct flats
on the plot of land and thus they submitted
an application to L.D.A. for the approval of
the plan and map of the construction.
2050 INDIAN LAW REPORTS ALLAHABAD SERIES

iii)
Some
construction
was
slightly in contravention to the approved
plan and thus they were trying to resolve the
matter by bringing the matter in front of
L.D.A and submission of the compounding
fees.

iv) Negotiation to reduce the
compounding fees was going on, and after
deciding the exact amount, the fee will be
submitted to L.D.A.

15. Thus, learned Senior Counsel
submitted that the above noted facts clearly
depicts that the applicant is not the owner
of the plot of land no. C-822, Sector -C,
Mahanagar, Lucknow measuring about
7074 sq. feet and also is not a party to any
plan of construction of flat on the above
mentioned plot of land with Qazi Ajmal
Husain, as such, the facts and statements
recorded by the Investigating Officer of
Mahanagar Police Station District
-
Lucknow are false on the pretext of the
absence of the applicant i.e. Waris Ali S/o
Late Ashiq Ali.

16. Learned Senior Counsel further
submitted that it is pertinent to mention
here that the prime accused Qazi Ajmal
Husain concealed the facts of selling the
above plot of land on 12.03.2010 to M/s
Mega Infra Developers India pvt. Ltd.
through its director Rajendra Kumar Verma
and falsely implicated the applicant as the
owner of the land by way of the earlier sale
deed dated 23.09.2005.

17. Learned Senior Counsel further
submitted that in the case of Sundar Babu
versus State of Tamil Nadu; Criminal
Appeal No. 773 of 2003, Hon'ble the
Supreme
Court
laid
down
the
conditions/circumstances for quashing of
F.I.R. relying on the case of State of
Haryana Vs. Bhajan Lal 1992 SCC(Cr.)
426. The grounds were as follow:-

a) Where the allegations made in
the first information report 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.

b) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Sec.156(1) of the Code except under an
order of a Magistrate within the purview of
Sec. 155(2) of the Code.

c) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

d) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Sec. 155
(2) of the Code.

e) Where the allegations made in
the FIR or 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.

f) Where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
5 All. Waris Ali Vs. The State of U.P. & Anr.
2051
redress for the grievance of the aggrieved
party.

g) Where a criminal proceeding
is manifestly attended with mala fide 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."

18. Learned Senior Counsel further
submitted that this is a fit case for quashing
the charge sheet because due to legal defect,
in filing of charge sheet against applicant,
same is not maintainable and is liable to be
quashed in exercise of inherent powers of
this Court under Section 482 Cr.P.C. to
check and prevent abuse of process of the
Court alongwith entire proceedings of the
case.

19. On the other hand, learned
A.G.A.-I for the State Opposite Party No.1
as well as learned counsel for the opposite
party no.2 have vehemently opposed the
submissions advanced by learned counsel
for the applicant and have submitted that
the applicant has nowhere pointed out any
abuse of process of Court by virtue of
which he could knock the door of this
Hon'ble Court. A clear case of violation of
Section 447 I.P.C. is made out against the
applicant for which the trial is to be conducted
before the learned trial court and the applicant
would be having all the opportunities to
contest the case before it. The applicant was
raising unauthorized construction due to
which the property in question was sealed in
the year 2011 and the applicant after breaking
the seal in an illegal and unauthorized
manner, started the construction, therefore,
the F.I.R. under appropriate Section was
lodged against him. Thus, a criminal case is
made out against the applicant for violation of
Section 447 I.P.C., hence, the charge sheet has
rightly been filed against him. The applicant
is trying to raise factual dispute in the present
case and, as such, the present application
under Section 482 Cr.P.C. is liable to be
dismissed.

20. After considering the entire facts
and circumstances of the case as well as after
considering the arguments as advanced by
learned counsel for the parties, this Court
finds it appropriate to discuss some
judgments which have been pronounced by
Hon'ble the Supreme Court of India.

21. Hon'ble the Supreme Court of India
in the case of Lalankumar Singh and
Others vs. State of Maharashtra reported
in 2022 SCC Online SC 1383 has
specifically held in paragraph No.38 that the
order of issuance of process is not an empty
formality. The Magistrate is required to apply
his mind as to whether sufficient ground for
proceeding exists in the case or not.
Paragraph No.38 of Lalankumar Singh and
Others (supra) is being quoted hereunder:-

"38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this Court
in the case of Sunil Bharti Mittal v. Central
Bureau of Investigation, which reads thus:

"51. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
2052 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient ground for proceeding. This
section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e. the complaint, examination
of the complainant and his witnesses, if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he shall
issue process against the accused.

52. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he thinks
that it is unlikely to result in a conviction.

53.
However,
the
words
"sufficient
ground
for
proceeding"
appearing in Section 204 are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case
against the accused, though the order need
not contain detailed reasons. A fortiori, the
order would be bad in law if the reason
given turns out to be ex facie incorrect."

22. Further, Hon'ble the Supreme
Court of India has also provided guidelines
in case of State of Haryana Vs. Bhajan
Lal reported in 1992 Supp (1) SCC 335
for the exercise of power under Section 482
Cr.P.C. which is extraordinary power and
used separately in specific conditions,
which have already been discussed above
in the contention of learned counsel for the
applicant.

23. Further, Hon'ble the Supreme
Court of India has also laid down the
guidelines where the criminal proceedings
could be interfered and quashed in exercise
of its power by the High Court in the
following cases:- (i) R.P. Kapoor Vs. State
of Punjab, AIR 1960 S.C. 866, (ii) State
of Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192, (iii) Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and
another, (Para-10) 2005 SCC (Cri.) 283
and (iv) Neeharika Infrastructure Pvt.
Ltd. Vs. State of Maharashtra, AIR 2021
SC 1918.

24. In S.W. Palankattkar & others
Vs. State of Bihar, 2002 (44) ACC 168, it
has been held by the Hon'ble Apex Court
that quashing of the criminal proceedings is
an exception than a rule. The inherent
powers of the High Court itself envisages
three circumstances under which the
inherent jurisdiction may be exercised:-(i)
to give effect an order under the Code, (ii)
to prevent abuse of the process of the court ;
(iii) to otherwise secure the ends of justice.
The power of High Court is very wide but
should be exercised very cautiously to do
real and substantial justice for which the
court alone exists.

25. In M/s Pepsi Food Ltd. and
another Vs. Special Judicial Magistrate
and others: 1998 (5) SCC 749, Hon'ble
Apex Court has observed:

"Summoning of an accused in a
criminal case, is a serous matter. Criminal
law can not be set into motion as a matter
of course. It is not that the complainant has
5 All. Waris Ali Vs. The State of U.P. & Anr.
2053
to bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning the accused. Magistrate
had to carefully scrutinize the evidence
brought on record and may even himself put
questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused."

26. Further, Section 441 I.P.C.
provides for a civil trespass getting
converted into criminal trespass on the
service of the notice on the trespasser to
vacate the property. There is no evidence to
show that the notice issued under Section
441 I.P.C. by the complainant had been
served on the accused. unless the notice had
been served, the civil trespass could not get
converted into a criminal trespass. The
accused could not be convicted under
Section 447 I.P.C.

27.

In
the
above
facts
and
circumstances, the applicant cannot be
termed as trespasser nor he can be tried
under the provision of Section 447 I.P.C.,
because no offence under that section is
made out against the applicant. Since notice
under amended Section 441 I.P.C. is
mandatory requirement but the same has
not been completed, because no notice
under Section 441 I.P.C. is ever sent to
applicant. Due to non compliance of this
mandatory provision, offence of "criminal
trespass" which has been defined in Section
441 I.P.C. has not been made out, therefore,
charge sheet filed against applicant under
Section 447 I.P.C. is legally not sustainable.

28. For proper appreciation of the
rival arguments raised on behalf of parties,
amended Section 441 and 447 I.P.C. are of
vital importance and the same are
reproduced hereinbelow :-

"441.
Criminal
trespass.-
Whoever enters into or upon property in
possession of another with intent to commit
an offence or to intimidate, insult or annoy
any person in possession of such property
or, having lawfully entered into or upon
such property, unlawfully remains there
with intent thereby to intimidate, insult or
annoy any such person, or with intent to
commit an offence.

Or, having entered into or upon
such property, whether before or after the
coming into force of the Criminal Law (I.P.
Amendment) Act, 1961, with the intention of
taking unauthorised possession or making
unauthorised use of such property fails to
withdraw from such property, or its
possession or use when called upon to do
so by that another person by notice in
writing, duly served upon him, by the date
specified in the notice, is said to commit
"criminal trespass" - Uttar Pradesh Act
No. 31 of 1961."
(emphasis by the Court)

"Punishment
for
criminal
trespass.

447. Whoever commits criminal
trespass
shall
be
punished
with
imprisonment of either description for a
term which may extend to three months, or
2054 INDIAN LAW REPORTS ALLAHABAD SERIES
with fine which may extend to five hundred
rupees, or with both."

29. It is quite clear from the perusal of
above amended Section 441 I.P.C. that any
person entered into possession of any
property of another person before or after
coming into force of the criminal law (U.P.
Amendment Act, 1961), with the intention
to take unauthorised possession or making
unauthorised use of such property and fails
to withdraw from such property or its
possession or use in compliance of the
written notice of another person duly
served upon him by the date specified in the
notice as said to committed "criminal
trespass".

30. Admittedly, in this case no written
notice as specified in the amended Section
441 I.P.C. to withdraw from such property
or its possession or use of the land alleged
to be of sealed by the Lucknow
Development Authority i.e. opposite party
no. 2 has been served on the applicant,
therefore, there is no occasion for the
applicant to comply with such notice and
vice-versa failing to comply with the
notice. As such no offence of "Criminal
trespass" can be said to be committed.
Overlooking these facts, charge sheet has
been filed under Section 447 I.P.C. against
the applicant, which is bad in the eyes of
law. The accused cannot be punished for the
offence which has actually not been
committed by him.

31.

In
the
above
facts
and
circumstances, this Court is of the view that
filing of charge sheet under Section 447
I.P.C. against the applicant is a serious
abuse of process of the Court which must
be prevented. Because on the basis of such
legally defective charge sheet there is no
possibility to end the case in conviction of
the applicant and whole exercise before the
learned Trial Court will be mere wastage of
time and resources in such futile exercise.

32. Even in the instant case, there is
nothing in the summoning order to show
that the Magistrate concerned perused the
material available on record before passing
summoning order. Hence the summoning
order is bad in the eyes of law and
resultantly it is not sustainable as the
learned Magistrate failed to look into the
oral as well as documentary evidence
before the impugned order was passed.

33. Thus, in view of the law laid down
by the Hon'ble Apex Court and the facts and
circumstances, as narrated above and also
with the assistance of the aforesaid
guidelines and keeping in view the nature
and gravity and the severity of the offence,
it deems proper and meet to the ends of
justice
that
the
proceeding
of
the
aforementioned case is liable to be quashed.

34. Accordingly, the present 482
Cr.P.C.
application
stands
allowed.
Keeping in view the law laid down by the
Hon'ble Apex Court in the above referred
judgment and in view of the submission
made by learned counsel for the parties, the
Charge Sheet of the Case Crime No.8/2012,
under Section 447 I.P.C., Police Station
Mahanagar, District Lucknow pending
before the learned Additional Chief Judicial
Magistrate-IV,
Lucknow
as
well
as
summoning
order
dated
15.05.2012
alongwith entire proceedings of the case are
hereby quashed so far as it relates to the
instant applicant, namely, Waris Ali.

35. No order as to the costs.

36. Office is directed to transmit a
copy of this order to the learned trial court
5 All. Azim Premji Vs. State of U.P. & Anr.
2055
concerned immediately for necessary
compliance and information.
---------
(2024) 5 ILRA 2055
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 3261 of 2017

Azim Premji ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Karunanidhi Yadav

Counsel for the Opposite Parties:
Govt. Advocate

Complaint
proceedings-
Applicant
is
chairman and managing director of Wipro Ltd. -
has no interest in any shareholdings or
managerial control over the M/s G4S Secure
Solutions ( India) Pvt. Ltd. -no administrative
control over G4S -its an agency to provide
security services-task of security services is
outsourced to G4S -G4S is accused no.2allegation-during
inspection
by
Labour
Enforcement Officer certain alleged violation
of law were discovered-notices were allegedly
issued to Wipro company and G4S-no notice
was received ever by the establishment of the
company and the Applicant-imperative for the
learned CJM to examine the complaint to
ensure that the Directors or other senior
officers of the company who have been named
in the complaint are vicariously liable for the
act complained of- impugned order and
complaint
proceedings
are
mechanicalquashed.

Application allowed. (E-9)

List of Cases cited:

1. Sunil Bharti Mittal Vs CBI, (2015) 4 SCC 609
2. Shiv Kumar Jatia Vs St. of NCT of Delhi :
(2019) 17 SCC 193

3. Inder Mohan Goswami Vs St. of Uttaranchal
(2007)12 SCC 1

4. Lalankumar Singh & ors. Vs St. of Mah.
reported in 2022 SCC Online SC 1383

5. Pepsi Foods Ltd. Vs Judicial Magistrate
reported in (1998) 5 SCC 749

6. Mehmood UL Rehman Vs Khazir Mohammad
Tunda & ors. reported in (2015) 12 SCC 420

7. Mahendra Singh Dhoni Vs Yerraguntla
Shyamsundar reported in (2017) 7 SCC 760

8. St. of Haryana Vs Bhajan Lal reported in 1992
Supp (1) SCC 335

9. R.P. Kapoor Vs St. of Pun., AIR 1960 S.C. 866,

10. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

11. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283

12. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918.

13. In S.W. Palankattkar & ors. Vs St. of Bihar,
2002 (44) ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Karunanidhi Yadav,
learned Counsel for the applicant, Shri Shri
Ashok Kumar Singh, learned A.G.A-I for
the State-opposite party No.1.

2. As per office report dated
20.03.2024, wherein it has been stated that
the Chief Judicial Magistrate, Lucknow has
sent a report dated 08.06.2017 stating
therein that notice upon opposite party No.2
was served but in spite of service of notice,
no counsel has put in appearance on behalf