Mohd. Akbar v. State of U.P. and another) arising out of order dated
Case Details
Neutral Citation No. - 2024:AHC:165380 Court No. - 85 Case :- MATTERS UNDER ARTICLE 227 No. - 3654 of 2024 Petitioner :- Mohd Akbar Respondent :- State of U.P. and Another Counsel for Petitioner :- Shakil Ahmad Counsel for Respondent :- G.A. Hon'ble Saurabh Srivastava,J. 1. 2. Pleadings have already been exchanged. Heard Mr. Shakil Ahmad, learned counsel for petitioner and Sri Rajendra Kumar Singh, learned counsel for respondent no.2 as well learned AGA. 3. The instant petition has been preferred for challenging the order dated 20.02.2024 passed by learned Additional Session Judge/FTC, Court No.2, Binjor in Criminal Revision No.506 of 2023 (Mohd. Akbar Vs.
Legal Reasoning
State of U.P. and another) arising out of order dated 11.08.2023 passed by learned Additional Chief Judicial Magistrate, Nagina, Bijnor in Criminal Case No.439 of 2021 (State Vs. Mohd. Akbar and another), arising out of Case Crime No.334 of 2019, under Sections 420, 467, 468, 471, 120-B IPC, P.S. Nagina, District Bijnor. 4.
Legal Reasoning
Learned counsel for petitioner initiated his arguments by way of narrating the previous incident which is co-related with the present controversy as raised through the instant petition, wherein at the initial stage, a suit for eviction bearing Suit No.17 of 2002 has been preferred at the behest of wife of respondent no.2 being the owner of shop concerned, during pendency of the said suit, an FIR has been lodged on dated 30.04.2019 against the petitioner including some other person by respondent no.2, whereupon after detailed inquiry, the concerned Investigating Officer exonerated the petitioner at the time of preferring chargesheet against other co-accused person on dated 25.07.2019. 2. 5. Learned counsel for petitioner submitted that immediately after submission of chargesheet, wherein petitioner was exonerated, another FIR was lodged through an application under Section 156(3) Cr.P.C. on dated 17.08.2019 against petitioner in same sections as mentioned in the first FIR dated 30.04.2019 wherein petitioner has already been exonerated. After having knowledge of second FIR, petitioner immediately preferred anticipatory bail application which was allowed on dated 14.10.2019 by Coordinate Bench of this Court. After lodging of the second FIR dated 17.08.2019, inquiry was conducted and after culmination of the same, the concerned Investigating Officer preferred chargesheet against petitioner also on dated 30.01.2020 whereupon cognizance was taken by the learned concerned court on dated 19.03.2020 in pursuance of Sections 120-B, 420, 467, 468 IPC. 6. Being aggrieved with the cognizance order dated 19.03.2020, petitioner challenged the same by way of filing Application U/S 482
Decision
No.5137 of 2022 which was disposed of vide order dated 12.01.2023 with liberty to prefer discharge application. In pursuance of the order dated 12.01.2023, petitioner preferred discharge application which was rejected vide order dated 11.08.2023 by the learned concerned court. Petitioner challenged the order dated 11.08.2023 by way of filing criminal revision which was also rejected vide order dated 20.02.2024 passed by learned revisional court by upholding the order dated 11.08.2023 and thereafter charges have been framed on dated 12.03.2024 which impugned the present petition. 7. Learned counsel for petitioner submitted that by perusal of both the FIRs, it appears that contents of the same are more or less similar to each other and once, the petitioner has already been exonerated at the stage of chargesheet preferred in the first FIR, there was no occasion available before the concerned Investigating Officer for implicating in the similar sections in pursuance to the second FIR. 3. 8. The essence of narration available in both the FIRs, are the matter which has already been put for consideration before learned trial court as well as before this Court in Writ Petition No.9466 of 2018, wherein interim protection has been extended in favour of petitioner vide order dated 21.12.2018 and in said petition, no counter affidavit has been preferred at the behest of respondent no.2 till today. 9. Per contra, Sri Rajendra Kumar Singh, learned counsel for respondent no.2 submitted that the allegations whatsoever have been put forward in both the FIRs, are different in nature since the initial dispute pertains to two different properties in shape of shops which were retained by petitioner. It is specifically stated by learned counsel for respondent no.2 that in one shop, petitioner was physically in possession which has been decreed in favour of respondent no.2 and the same was being evicted by petitioner, in sofar as another property is concerned, although there is no specific suit preferred at the behest of respondent no.2 against petitioner but indirectly petitioner in collusion with other persons which has been described in the narration of FIR, manufactured forged and fictitious documents in relation to the same shop which has been put for eviction by way of instituting a specific Suit No.17 of 2022 wherein against the execution, interim protection has already been granted in favour of petitioner vide order dated 21.12.2018. 10. At the time of closing his arguments, learned counsel for respondent no.2 submitted that after obtaining the interim order dated 21.12.2018, illegal action has been committed by petitioner which compelled respondent no.2 for lodging the second FIR dated 17.08.2019 and as such, proceedings initiated in pursuance of the second FIR, is justified. 11. After having rival contentions extended by learned counsel for parties, it appears that the dispute with regard to manufacture forged and fictitious documents as narrated in the first FIR, has been given quietus 4. after submission of chargesheet wherein petitioner has been exonerated and the same has never been challenged before any court of law at the behest of respondent no.2 specifically at the stage of taking cognizance under Section 190 Cr.P.C., whereas specific provision of 190(1)(c) Cr.P.C. provides the respondent no.2 for informing the court concerned that the name of petitioner is missing in the chargesheet since the allegation whatsoever has been put forward in consonance with the inquiry conducted by Investigating Officer, warrants to be chargesheeted but the same has not been done at the appropriate stage. 12. With regard to dispute which has been raised through Suit No.17 of 2002 which culminated into passing of judgment and decree in favour of respondent no.2, the same has been challenged in Writ Petition No.9466 of 2018 preferred by petitioner and the same is still pending at the stage of exchange of pleadings wherein interim protection has already been extended in favour of petitioner vide order dated 21.12.2018, if any further development in shape of any illegal document has been procured or manufactured for taking benefit of the same, the same was to be apprised to the court concerned which may inflict the legal rights accrued in favour of respondent no.2 but at the same time, the concurrent FIRs lodged at the behest of respondent no.2 is nothing but the extension of unwarranted criminal proceedings against the person concerned which might be taken into cognizance if any application under Section 340 Cr.P.C. has been preferred at the behest of respondent no.2. 13. On specific query made before learned counsel for respondent no.2 that any application during pendency of the cases before learned trial court or before this Court, has ever been preferred, the same has been replied that no such application for apprising the court concerned regarding manufacturing of forged and fictitious documents, has been given which might be in nature for deviating the protection of legal rights which is available at law in favour of respondent no.2. 5. 14. In view of the aforementioned facts and circumstances, it is crystal clear that for each and every subsequent development arisen during pendency of the suit as well as writ petition before this Court, application under Section 156(3) Cr.P.C. has been preferred at the behest of respondent no.2 which culminated into lodging of FIR against the petitioner and this aspect which has been discussed as above, has never been given any credence either at the stage of deciding discharge application which was rejected vide order dated 11.08.2023 or at the stage of considering the criminal revision preferred by petitioner which was rejected on dated 20.02.2024. 15. In view thereof, both the orders dated 20.02.2024 passed by learned Additional Session Judge/FTC, Court No.2, Binjor in Criminal Revision No.506 of 2023 (Mohd. Akbar Vs. State of U.P. and another) and 11.08.2023 passed by learned Additional Chief Judicial Magistrate, Nagina, Bijnor in Criminal Case No.439 of 2021 (State Vs. Mohd. Akbar and another), are hereby set aside. Matter is hereby remitted back to the learned Additional Chief Judicial Magistrate, Nagina, Bijnor for deciding the discharge application afresh preferred at the behest of petitioner within a period of two months from the date of presentation of certified copy of this order before learned court concerned. 16. However, it is made clear that till the disposal of discharge application, no coercive action shall be initiated against petitioner herein. 17. Accordingly, the present petition stands allowed. Order Date :- 16.10.2024 Vivek Kr. (Saurabh Srivastava, J.)