High Court
Case Details
Neutral Citation No. - 2024:AHC:185737 Court No. - 79 Case :- APPLICATION U/S 482 No. - 37234 of 2024 Applicant :- Iqbal @ Bala Opposite Party :- State of U.P. and Another Counsel for Applicant :- Indra Bhan Yadav Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J. 1. Heard Sri Indra Bhan Yadav, learned counsel for the applicant, Sri Manish Goyal, learned Additional Advocate General assisted by Sri Vikash Sahay, learned AGA for the State and perused the record. 2. The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 01.05.2024 passed by Special Judge MP/MLA Court/ ACJM- III, Saharanpur in Criminal Case No.08
Legal Reasoning
of 2024 arising out of Case No.1135 of 2023 in Case Crime No.03 of 2023, under Section 174A IPC, Police Station- Mirzapur, District Saharanpur pending in the court of III- Additional Chief Judicial Magistrate, Saharanpur. 3. Facts giving rise to the present case are that the FIR dated 25.08.2022 in Case Crime No.195 of 2022, under Section 376-D, 506 IPC was registered against the applicant. Thereafter, the applicant did not cooperate in the investigation, therefore, the non- bailable warrant as well as the process under Sections 82 and 83 Cr.P.C have been issued against the applicant and despite issuance of the above process, the applicant did not appear before the court, therefore, FIR under Section 174A was registered on 04.01.2023 as Case Crime No.03 of 2023. After investigation police has also submitted a charge sheet on 19.01.2023, on which cognizance was taken by the learned Magistrate on 03.04.2023 and that charge sheet was challenged before this Court through an Application U/S 482 No. 32516 of 2023. In the meantime, the applicant has challenged the FIR dated 25.08.2022 in Case Crime No.195 of 2022 before the High Court but that was dismissed, against which the applicant preferred an SLP before the Supreme Court, which was allowed by an order dated 08.08.2023 by which the FIR dated 25.08.2022, under Section 376D and 506 IPC was quashed. It was also observed by the Apex Court that all consequential proceedings in pursuance of the FIR dated 25.08.2022 is also quashed. Thereafter the applicant also moved an application before the court below to drop the proceeding under Section 174A IPC but that remained pending, therefore, Application u/s 482 No.32516 of 2023 filed by the applicant against the charge sheet under Section 174A IPC was disposed of vide order dated 15.04.2024 with direction to the court below to decide the pending application of the applicant regarding dropping the proceeding under Section 174A IPC. In pursuance of the order dated 15.04.2024 passed by this Court in Application u/s 482 No.32516 of 2023 impugned order was passed by which the application of the applicant was rejected with observation that the proceeding under Section 174A IPC is an independent proceeding and cannot be said to be a consequential proceeding to the FIR dated 25.08.2022 in Case Crime No.190 of 2022. 4. Learned AAG has raised preliminary objection regarding maintainability of present application by the power of attorney holder of applicant on the ground that in the power of attorney, it is mentioned that it has been executed in favour of the power of attorney holder Tanseef for the reason that he is busy in his business and he is not able to appear before District Court, High Court and Supreme Court at Delhi. However, in the affidavit filed in support of present application, it has been mentioned that he is out of India because of his business engagement, therefore, the averment made in power of attorney is not in consonance to the affidavit filed in support of the present application. He also relied upon the judgement of co-ordinate Bench of this Court in Application u/s 482 No.22140 of 2023 filed by the present applicant, in which the co-ordinate Bench observed that the power of attorney, (which is the same in the present case), is defective, and it is contradictory to the averment made in the affidavit filed in support of application under Section 482 Cr.P.C., therefore, there is concealment of material fact. The applicant had not approached this Court with clean hand, therefore, that application was dismissed as not maintainable at the behest of power of attorney holder. 5. It is further informed by learned AAG that though this order was challenged by the applicant before the Apex Court in SLP (Crl) No. 12368 of 2023 but the Apex Court did not stay the judgment of the co-ordinate Bench but simply issued notice and interim protection was granted to the applicant. Therefore, the observation made by the co-ordinate Bench is still hold good so far as maintainability of application u/s 482 by the power of attorney holder of the applicant. 6. In reply to the preliminary objection, counsel for the applicant has submitted that before the co-ordinate Bench, the Rule 2 of the Rules framed under Section 34(1) of the Advocates Act was not placed which specially provides that Vakalatnama can be filed by the power of attorney holder. Apart from this, counsel for the applicant has also relied upon the judgment of the Apex Court in the case of Farhana vs State of Uttar Pradesh and others in SLP(Crl) No.437 of 2023 in which Apex Court while considering the quashing of proceeding under the Gangster Act observed that if the base case has been quashed by the court then proceeding under the Gangster Act cannot be allowed to continue as very basis of the Gangster Act has been struck off. 7. Counsel for the applicant also relied upon another judgement of the Apex Court in the case of Mita India Pvt. Ltd. vs Mahendra Jain in Special Leave Petition (Crl.) No.6220 of 2019, wherein Apex Court observed that proceeding is very well maintainable at the behest of power of attorney holder but the power of attorney holder cannot authorise subsequently to any other person for conducting cases. 8. After hearing the submission of counsel for the applicant, the factual position is not in dispute. The only legal question involved herein is that the proceeding under Section 482 Cr.P.C can be maintainable at the behest of power of attorney holder, if difference reasons for authorising the power of attorney holder, has been mentioned in the affidavit filed in support of the application as mentioned in the power of attorney itself. 9. It is clear from the perusal of the judgement of the co-ordinate Bench in Application u/s 482 No. 22140 of 2023 that though the co-ordinate Bench did not deny the fact that the power of attorney cannot pursue the proceeding under Section 482 Cr.P.C. but the reason for dismissing that 482 application, on the ground of maintainability, was that the contrary fact has been mentioned in the affidavit filed in support of this application, to the reason mentioned in power of attorney. 10. In the present case, in para 5 of the affidavit filed in support of 482 application, it has been mentioned that the applicant is out of country for the purpose of his business, for that reason, he has authorised Tanseef to pursue all cases on his behalf in different courts. In the power of attorney, it is mentioned that because of business engagement, the applicant could not appear in the Sessions Court, High Court and Supreme Court at Delhi and there was no authorisation regarding pursuing the case on behalf the applicant in Allahabad High Court. Once the power of attorney itself mentioned this authorisation for the purpose of cases pending in Delhi, whether Sessions Court, High Court or Supreme Court, then this power of attorney cannot be interpreted in such a manner to authorised Tanseef to file cases in the Allahabad High Court. 11. Judgements relied upon by the counsel for the applicant are not applicable in the present facts and circumstances of the case. 12. In view of above, this Court does not find any reason to take a different view to the view taken by the co-ordinate Bench in the case of Application u/s 482 No.22140 of 2023, regarding maintainability of Application u/s 482 Cr.P.C. by the present power of attorney (Tanseef) on behalf of the applicant. 13. In view of above, the present application is dismissed as not maintainable. However, the applicant is free to file fresh application u/s 482 Cr.P.C. in accordance with law. Order Date :- 27.11.2024 A.Kr.