High Court
Case Details
Neutral Citation No. - 2025:AHC:51374 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 11396 of 2025 Applicant :- Ajab Singh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Saroj,Nagendra Bahadur Singh,Om Prakash Counsel for Opposite Party :- G.A.
Legal Reasoning
Hon'ble Saurabh Srivastava,J. 1. Heard Sri Abhishek Kumar Saroj, learned counsel appearing on behalf of applicants and learned AGA for State. 2. Present application has been preferred with the prayer to quash the entire proceedings of Case no. 321 of 2024/CNR No. UPA7040007002024 (State vs. Ajab Singh and another) including charge sheet dated 30.05.2023 as well as impugned summoning order dated 25.01.2024 passed by learned Civil Judge (J.D.), F.T.C., Auraiya arising out of Case Crime no. 0252 of 2023 under Section 171-B IPC and 123 of Representation of People Act, 1951, PS- Ajitmal, District Auraiya. 3. Learned counsel for the applicants submitted that the applicants has been charge sheeted on dated 30.05.2023 whereupon cognizance of offence has been taken up by learned court of Civil Judge, Junior Division, FTC, Auraiya by way of summoning applicant in pursuance to Case Crime no. 252 of 2023 specifically in pursuance to Section 171B IPC and 123 of Representation of People Act, 1941. 4. At the very outset, in the opening arguments, it is submitted by learned counsel for the applicants that both the sections are bailable and non-cognizable and as such the case of the applicant is squarely covered under Section 2(d) Cr.P.C and the learned Magistrate has not adopted the procedure of the Complaint Case and in the most illegal manner, the matter has been taken up as a State case by way of taking cognizance of offence in pursuance to bailable and non-cognizable sections wherein the applicants have been implicated. 5. For substantiating his arguments, learned counsel for the applicants relied upon judgment rendered by Hon'ble Apex Court in case of State of Haryana and others vs. Bhajan Lal and others 1992 SCC (Supp) 1 335 and by way of highlighting and relying upon para no. 102 which is reproduced herein below: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise. (1) 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. (2) 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) 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. (4) 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 Section 155(2) of the Code. (5) 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. (6) 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 redress for the grievance of the aggrieved party. (7) 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." 6. So far as regarding the other factual matters are concerned, it is also submitted by learned counsel for the applicants that without receiving any FSL report, the entire allegation has been fastened against the applicants only on the basis of the video clip which has never been put to verification either by any Expert Committee or by seeking report from Forensic Science Laboratory and as such implication of the applicants in pursuance to Section 171B of IPC and Section 123 of Public Representation Act, is not maintainable. 7. Per contra, learned AGA vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel appearing on behalf of applicants by way of supporting the order dated 25.01.2024 through which cognizance of offence has been taken up by learned court concerned by way of summoning the applicants. 8. After hearing the submissions extended by learned counsel for parties, it is crystal clear that the opening arguments raised by learned counsel for the applicants seems to be justified since both the sections wherein the applicants have been implicated through charge sheet submitted on dated 30.05.2023, must be testified in strict consonance of the provision available under Section 2(d) Cr.P.C. Even at the time of taking cognizance of offence, learned Magistrate failed to consider that no FSL report in respect of video clip has been appended for determining the implication of applicants in pursuance to Section 171-B IPC and 123 of Representation of People Act, 1951 and as such order dated 25.01.2024 passed by learned Civil Judge (J.D.), F.T.C., Auraiya under Section 190 of Cr.P.C. prima facie is illegal in absence of strict provisions of the content under Section 2(d) of Cr.P.C. and as such the same is hereby set aside. Matter is remitted back to learned court concerned for reconsideration over the charge sheet at the stage of summoning and the same must be after due consideration of Section 2(d) of Cr.P.C. 9. The instant application stands allowed accordingly. Order Date :- 8.4.2025 Shaswat Digitally signed by :- Digitally signed by :- SHASWAT SINGH SHASWAT SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad