Pradeep Kumar Rai v. State of U.P. and

Hon'ble Saurabh Srivastava,J.

1. Heard Sri I.K.Chaturvedi, learned senior counsel assisted by Sri Saurabh Chaturvedi, learned counsel for applicant and learned AGA for State and perused the record.

2. Present application has been preferred with prayer to quash the charge sheet dated 24.08.2023 and set aside the cognizance and summoning order dated 20.11.2023 passed by learned CJM, Jaunpur as well as entire criminal proceeding in respect to applicant pending before learned CJM, Jaunpur with Criminal Case no. 1888/2023 (State vs. Upendra Rai and others) under sections 323, 504, 506, 353, 332, 120-B IPC and Section 42 of Prison Act, 1894, PS- Line Bazaar, District Jaunpur arising out of Case Crime no. 399/2023. Further prayer has been made to stay the proceeding pending against the applicant bearing Criminal Case no. 1888/2023.

3. Learned counsel for applicant submitted that applicant is resident of District Ghazipur, and his son co-accused Upendra Rai started his business at Lucknow since 2006, i.e business of Bus body manufacturing, Real Estate and also sale and purchase of coal and in the said business, one Director Bindu Kumar Mishra resident of City Lucknow was also having business contract of sale and purchase of coal, who also invested money in aforesaid business with applicant but some differences arose between applicant and Bindu Kumar Mishra hence son of applicant withdrawn himself from association of Bindu Kumar Mishra, who is man of political and administrative approach. Due to high reach of aforesaid Bindu Kumar Mishra, a conspiracy was hatched by him against the applicant with the collusion of one Guman Singh, and Guman Singh lodged Case Crime no. 192 of 2022 under sections 307, 323, 342, 352, 386, 406, 506 IPC and Section 3(1)(x), 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, PS- Karimuddinpur, District Ghazipur. Applicant was in District Jail, Ghazipur since 14.12.2022 in connection with Case Crime no. 192 of 2022. Later on applicant was transferred to District Jail, Jaunpur form District Jail, Ghazipur under conspiracy, where he was beaten and tortured by Jail Superintendent, Jaunpur. Applicant moved several complaints against the Jail Superintendent, Jaunpur before Human Rights Commission, U.P. and other police authorities. Applicant and his family members also moved an application before learned Chief Judicial Magistrate, Ghazipur under Section 156(3) Cr.P.C. also against In-charge Inspector and against unknown police persons of concerned police station with prayer to direct the local police to register case against the said police personnel. Applicant also moved Writ Petition (C) no. 25113 of 2022 (Pradeep Kumar Rai vs. State of U.P. and 6 others) seeking action against erring police authorities. In the said petition, Mr. Rohan P Botre, then Superintendent of Police, Ghazipur, Mr. Vishwa Nath Yadav then Station House Officer, PS- Karimuddinpur and Sri Ram Autar, S.O.G. Ghazipur were introduced as respondent nos. 4, 6 and 7 respectively. Aforesaid Sri Rohan P Botre happens to be close friend of son-in-law of aforesaid Bindu Kumar Mishra.

4. It is next submitted that after having knowledge of said petition, Superintendent of Police called applicant and threatened him to withdraw the petition but on refusal, applicant was transferred from District Ghazipur to District Jaunpur where, applicant was subjected to torture and after being granted bail, when Jail Superintendent came to know in respect of likelihood of release of son of applicant with false allegations, other four FIRs were lodged against son of applicant at the behest of Superintendent of Jail as Superintendent of Police, Jaunpur who is subordinate to aforesaid then Superintendent of Police, Ghazipur who was introduced as respondent in aforesaid petition.

5. Again conspiracy was hatched by Jail Superintendent, Jaunpur with inimical persons and FIR bearing Case Crime no. 105 of 2023 was lodged against son of applicant by Ankit Sharma, Prisoner Guard, District Jail, Jaunpur under sections 307, 504, IPC. After knowledge of aforesaid complaints moved 2 of 5 by applicant against Jail Superintendent, Jaunpur, in conspiracy with one prisoner namely Imran alias Natey, one FIR was again lodged against son of applicant at the behest of Jail Superintendent, Jaunpur bearing Case Crime no. 302 of 2023 under Section 337 IPC, PS- Line Bazar, District Jaunpur. And in this series, applicant, his son and his family members are continuously been harassed by the police authorities.

6. It is next submitted that present FIR has been lodged at the behest of Jail Warden, District Jail Jaunpur/opposite party no. 2 against son of applicant with the allegation that a Samsung mobile phone has been recovered from his bag. During investigation, confessional statement of son of applicant has been recorded wherein he stated that the said mobile phone was given to him by his father(applicant) while he came to meet him in jail. The concerned Investigating Officer recorded the statement of one Shiva Kant (Circle Head) and after recording the aforesaid statement, I.O. claims to have added Section 120- B IPC introducing the names of Subhash Yadav and applicant Pradeep Kumar Rai as an accused and thereafter in aforesaid parcha after recording the statement of medical officer, Dr. Ravi Raj and applicant, IO submitted charge-sheet mechanically under the aforesaid sections against the applicant and others. Thus, applicant has been introduced as an accused by the IO during investigation who was not named in the FIR. Upon the charge-sheet, learned Chief Judicial Magistrate, Jaunpur took cognizance and summoned the applicant and other co-accused vide impugned order dated 20.11.2023.

7. It is contended that applicant is innocent and he has been falsely implicated by the IO, without having any material at the behest of higher police authorities. Applicant had never visited District Jail Jaunpur to meet with his son since the date of being confined in the said jail and thus it is highly improbable and unreliable that any such mobile phone has ever been handed over by him to his son Upendra Rai and the date of meeting of applicant during confinement of his son in the jail has not been proved by the IO by means of any material except the false statement recorded by his son. There is no entry in the jail record in regard to visit of applicant. No call detail report of the alleged mobile phone has been recovered. Applicant has never 3 of 5 been interrogated by the Investigating Officer either personally or by any telephonic call hence applicant was unaware in respect of his involvement in the present case. After issuance of NBW against the applicant vide order dated 18.05.2024, subsequently vide order dated 01.07.2024, learned Chief Judicial Magistrate, Jaunpur pleased to issue process under Section 82 Cr.P.C. due to absence of applicant, which is not justified as in the order sheet it has not been mentioned that the summon issue by learned Magistrate has ever been served upon him.

8. Per contra, learned AGA substantiated his arguments through counter affidavit preferred at the behest of State wherein, it has been submitted that FIR was lodged for real and true incident on 08.08.2023 at the time of inspection of the District Jail, Jaunpur, samsung mobile has been recovered in Barrack no. 6 in the bag of accused Upendra Rai son of Pradeep Kumar Rai(applicant) which was taken away by the applicant and accused as such FIR was lodged for real and true incident. During investigation, credible evidence has been collected and charge-sheet has been filed against applicant on 24.08.2024 and learned court has taken cognizance upon charge-sheet after applying its judicial mind on 20.11.2023 and the trial is in progress. The disputed defence of applicants cannot be gone into by this Court under its extra-ordinate jurisdiction which requires its proof by the trial court. Applicant has remedy to discharge at appropriate stage of trial.

9. After hearing the rival submissions extended by learned counsel for the parties, this Court finds that the implication of the applicant is only on the basis of confessional statement as recorded by the concerned Investigating Officer during course of investigation that the mobile phone which has been recovered from the son of the applicant has been provided by the applicant but the categorical and crystal clear arguments raised by learned counsel for the applicant which is the part of the pleadings also that there is hardly any evidence available with the jail authorities in shape of any documentary evidence through which it may be proved that the applicant visited the Jaunpur Jail is missing in reply submitted by the State and after considering the detailed history of the matter in which applicant 4 of 5 and his son has already been implicated in several criminal proceedings. The instant proceedings seems to be based upon any strict proof of evidence which is the preliminary basis for implication of the applicant and initiating prosecution in pursuance to Case Crime no. 399 of 2023. Learned AGA fails to reply the substantial arguments raised by learned senior counsel appearing on behalf of applicant that once there is hardly any evidence or record available that applicant ever visited Jaunpur Jail under which circumstances it can be presumed that the mobile phone which has been recovered from the son of the applicant has been provided by the applicant himself.

10. In view of aforementioned facts and circumstances, entire proceeding is clear cut case of malicious prosecution initiated against the applicant and the same deserves to be set aside. Hence entire proceeding arising out of Criminal Case no. 1888/2023 (State vs. Upendra Rai and others) under sections 323, 504, 506, 353, 332, 120-B IPC and Section 42 of Prison Act, 1894, PS- Line Bazaar, District Jaunpur arising out of Case Crime no. 399/2023 is hereby quashed and set aside only in respect of applicant namely Pradeep Kumar Rai.

11. The application stands allowed accordingly. Order Date :- 9.4.2025 Shaswat (Saurabh Srivastava,J.) SHASWAT SINGH High Court of Judicature at Allahabad 5 of 5

Hon'ble Saurabh Srivastava,J.

1. Heard Sri I.K.Chaturvedi, learned senior counsel assisted by Sri Saurabh Chaturvedi, learned counsel for applicant and learned AGA for State and perused the record.

2. Present application has been preferred with prayer to quash the charge sheet dated 24.08.2023 and set aside the cognizance and summoning order dated 20.11.2023 passed by learned CJM, Jaunpur as well as entire criminal proceeding in respect to applicant pending before learned CJM, Jaunpur with Criminal Case no. 1888/2023 (State vs. Upendra Rai and others) under sections 323, 504, 506, 353, 332, 120-B IPC and Section 42 of Prison Act, 1894, PS- Line Bazaar, District Jaunpur arising out of Case Crime no. 399/2023. Further prayer has been made to stay the proceeding pending against the applicant bearing Criminal Case no. 1888/2023.

3. Learned counsel for applicant submitted that applicant is resident of District Ghazipur, and his son co-accused Upendra Rai started his business at Lucknow since 2006, i.e business of Bus body manufacturing, Real Estate and also sale and purchase of coal and in the said business, one Director Bindu Kumar Mishra resident of City Lucknow was also having business contract of sale and purchase of coal, who also invested money in aforesaid business with applicant but some differences arose between applicant and Bindu Kumar Mishra hence son of applicant withdrawn himself from association of Bindu Kumar Mishra, who is man of political and administrative approach. Due to high reach of aforesaid Bindu Kumar Mishra, a conspiracy was hatched by him against the applicant with the collusion of one Guman Singh, and Guman Singh lodged Case Crime no. 192 of 2022 under sections 307, 323, 342, 352, 386, 406, 506 IPC and Section 3(1)(x), 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, PS- Karimuddinpur, District Ghazipur. Applicant was in District Jail, Ghazipur since 14.12.2022 in connection with Case Crime no. 192 of 2022. Later on applicant was transferred to District Jail, Jaunpur form District Jail, Ghazipur under conspiracy, where he was beaten and tortured by Jail Superintendent, Jaunpur. Applicant moved several complaints against the Jail Superintendent, Jaunpur before Human Rights Commission, U.P. and other police authorities. Applicant and his family members also moved an application before learned Chief Judicial Magistrate, Ghazipur under Section 156(3) Cr.P.C. also against In-charge Inspector and against unknown police persons of concerned police station with prayer to direct the local police to register case against the said police personnel. Applicant also moved Writ Petition (C) no. 25113 of 2022 (Pradeep Kumar Rai vs. State of U.P. and 6 others) seeking action against erring police authorities. In the said petition, Mr. Rohan P Botre, then Superintendent of Police, Ghazipur, Mr. Vishwa Nath Yadav then Station House Officer, PS- Karimuddinpur and Sri Ram Autar, S.O.G. Ghazipur were introduced as respondent nos. 4, 6 and 7 respectively. Aforesaid Sri Rohan P Botre happens to be close friend of son-in-law of aforesaid Bindu Kumar Mishra.

4. It is next submitted that after having knowledge of said petition, Superintendent of Police called applicant and threatened him to withdraw the petition but on refusal, applicant was transferred from District Ghazipur to District Jaunpur where, applicant was subjected to torture and after being granted bail, when Jail Superintendent came to know in respect of likelihood of release of son of applicant with false allegations, other four FIRs were lodged against son of applicant at the behest of Superintendent of Jail as Superintendent of Police, Jaunpur who is subordinate to aforesaid then Superintendent of Police, Ghazipur who was introduced as respondent in aforesaid petition.

5. Again conspiracy was hatched by Jail Superintendent, Jaunpur with inimical persons and FIR bearing Case Crime no. 105 of 2023 was lodged against son of applicant by Ankit Sharma, Prisoner Guard, District Jail, Jaunpur under sections 307, 504, IPC. After knowledge of aforesaid complaints moved 2 of 5 by applicant against Jail Superintendent, Jaunpur, in conspiracy with one prisoner namely Imran alias Natey, one FIR was again lodged against son of applicant at the behest of Jail Superintendent, Jaunpur bearing Case Crime no. 302 of 2023 under Section 337 IPC, PS- Line Bazar, District Jaunpur. And in this series, applicant, his son and his family members are continuously been harassed by the police authorities.

6. It is next submitted that present FIR has been lodged at the behest of Jail Warden, District Jail Jaunpur/opposite party no. 2 against son of applicant with the allegation that a Samsung mobile phone has been recovered from his bag. During investigation, confessional statement of son of applicant has been recorded wherein he stated that the said mobile phone was given to him by his father(applicant) while he came to meet him in jail. The concerned Investigating Officer recorded the statement of one Shiva Kant (Circle Head) and after recording the aforesaid statement, I.O. claims to have added Section 120- B IPC introducing the names of Subhash Yadav and applicant Pradeep Kumar Rai as an accused and thereafter in aforesaid parcha after recording the statement of medical officer, Dr. Ravi Raj and applicant, IO submitted charge-sheet mechanically under the aforesaid sections against the applicant and others. Thus, applicant has been introduced as an accused by the IO during investigation who was not named in the FIR. Upon the charge-sheet, learned Chief Judicial Magistrate, Jaunpur took cognizance and summoned the applicant and other co-accused vide impugned order dated 20.11.2023.

7. It is contended that applicant is innocent and he has been falsely implicated by the IO, without having any material at the behest of higher police authorities. Applicant had never visited District Jail Jaunpur to meet with his son since the date of being confined in the said jail and thus it is highly improbable and unreliable that any such mobile phone has ever been handed over by him to his son Upendra Rai and the date of meeting of applicant during confinement of his son in the jail has not been proved by the IO by means of any material except the false statement recorded by his son. There is no entry in the jail record in regard to visit of applicant. No call detail report of the alleged mobile phone has been recovered. Applicant has never 3 of 5 been interrogated by the Investigating Officer either personally or by any telephonic call hence applicant was unaware in respect of his involvement in the present case. After issuance of NBW against the applicant vide order dated 18.05.2024, subsequently vide order dated 01.07.2024, learned Chief Judicial Magistrate, Jaunpur pleased to issue process under Section 82 Cr.P.C. due to absence of applicant, which is not justified as in the order sheet it has not been mentioned that the summon issue by learned Magistrate has ever been served upon him.

8. Per contra, learned AGA substantiated his arguments through counter affidavit preferred at the behest of State wherein, it has been submitted that FIR was lodged for real and true incident on 08.08.2023 at the time of inspection of the District Jail, Jaunpur, samsung mobile has been recovered in Barrack no. 6 in the bag of accused Upendra Rai son of Pradeep Kumar Rai(applicant) which was taken away by the applicant and accused as such FIR was lodged for real and true incident. During investigation, credible evidence has been collected and charge-sheet has been filed against applicant on 24.08.2024 and learned court has taken cognizance upon charge-sheet after applying its judicial mind on 20.11.2023 and the trial is in progress. The disputed defence of applicants cannot be gone into by this Court under its extra-ordinate jurisdiction which requires its proof by the trial court. Applicant has remedy to discharge at appropriate stage of trial.

9. After hearing the rival submissions extended by learned counsel for the parties, this Court finds that the implication of the applicant is only on the basis of confessional statement as recorded by the concerned Investigating Officer during course of investigation that the mobile phone which has been recovered from the son of the applicant has been provided by the applicant but the categorical and crystal clear arguments raised by learned counsel for the applicant which is the part of the pleadings also that there is hardly any evidence available with the jail authorities in shape of any documentary evidence through which it may be proved that the applicant visited the Jaunpur Jail is missing in reply submitted by the State and after considering the detailed history of the matter in which applicant 4 of 5 and his son has already been implicated in several criminal proceedings. The instant proceedings seems to be based upon any strict proof of evidence which is the preliminary basis for implication of the applicant and initiating prosecution in pursuance to Case Crime no. 399 of 2023. Learned AGA fails to reply the substantial arguments raised by learned senior counsel appearing on behalf of applicant that once there is hardly any evidence or record available that applicant ever visited Jaunpur Jail under which circumstances it can be presumed that the mobile phone which has been recovered from the son of the applicant has been provided by the applicant himself.

10. In view of aforementioned facts and circumstances, entire proceeding is clear cut case of malicious prosecution initiated against the applicant and the same deserves to be set aside. Hence entire proceeding arising out of Criminal Case no. 1888/2023 (State vs. Upendra Rai and others) under sections 323, 504, 506, 353, 332, 120-B IPC and Section 42 of Prison Act, 1894, PS- Line Bazaar, District Jaunpur arising out of Case Crime no. 399/2023 is hereby quashed and set aside only in respect of applicant namely Pradeep Kumar Rai.

11. The application stands allowed accordingly. Order Date :- 9.4.2025 Shaswat (Saurabh Srivastava,J.) SHASWAT SINGH High Court of Judicature at Allahabad 5 of 5