Gaurav Shukla & Anr. v. State of U.P & Anr.

Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

The present application u/s 482 Cr.P.C. has been filed with prayer to quash the charge sheet no. 228 of 2021 dated 22.10.2021 in case crime no. 126 of 2021 u/s 188, 269, 270, 271, 147, 323, 504, 506 IPC P.S. Kakadev, District Kanpur Nagar, and to quash the cognizance/summoning order dated 11.01.2022 issued by the Metropolitan Magistrate 2nd, Kanpur Nagar and to quash the entire proceedings of the case no. 145130 of 2022 (State Vs Gaurav Shukla and others), pending before the Metropolitan Magistrate 2nd, Kanpur Nagar.

Instant FIR has been lodged with allegation that the opposite party no.2 and one-Taufik Khan were working in the construction of the Guru Dev Metro station. On 30.04.2021 at about 04:00 p.m. when they were going for work of metro towards Rawatpur station then some local persons, who were sitting at Vikram Service center on the opposite side of road, called them and when they have denied to come from the opposite side of the road then they have reached near the opposite party no.2 and Taufik khan then assaulted them and abused and one of them showing pistol said that they have broken their shop and houses and after inquiry it was found that the said person are applicants, Divya Shukla and 3- 4 other persons, hence, the present FIR has been lodged.

Learned counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case due to ulterior motive. I.O. after conducting investigation, submitted charge sheet against two accused persons/applicants, U/s 188, 269, 270, 271, 147, 323, 504, 506 I.P.C. I.O., in arbitrary manner. The inquiry conducted and charge sheet submitted U/s 147 I.P.C. by I.O. is without taking into consideration the necessary ingredients for Section 147 I.P.C. The necessary ingredient for summoning the person, under Section 146/147 I.P.C. is that force or violence is used by unlawful assembly and unlawful assembly is defined in Section 141 I.P.C. that an assembly of five or more persons is designated as unlawful assembly. An unlawful assembly consists of five or more persons who have a common intention to commit an offense and the assembly must use force or violence, this can include physical aggression against persons or property. He further submitted that learned Magistrate, after getting charge sheet, has summoned the applicants U/s 147 I.P.C., without application of judicial mind, whereas the charge sheet has been submitted against two persons.

Learned AGA vehemently opposed the submissions raised by applicant's counsel but could not dispute the legal aspects of the matter.

Considering the argument raised by counsel for the applicants and learned AGA as well as from the record it is apparent that charge sheet has been submitted against two persons and learned Magistrate, without applying his judicial mind and without going into merits of the case, summoned the applicants U/s 147 I.P.C. From the record, it is clear that only two persons have been charge sheeted, thereof, there is no evidence to summon the applicants under Section 146/147 I.P.C. Argument raised by counsel having force.

Accordingly, the impugned cognizance/summoning order dated 11.01.2022 passed in case no. 145130 of 2022, arising out of case crime no. 126 of 2021, u/s 188, 269, 270, 271, 147, 323, 504, 506 IPC, P.S. Kakadev, District Kanpur Nagar, pending before the Metropolitan Magistrate 2nd, Kanpur Nagar, is hereby, quashed.

With aforesaid direction, the present application under Section 482 Cr.P.C. is accordingly allowed. Order Date :- 29.4.2025 Nitin Verma NITIN KUMAR VERMA High Court of Judicature at Allahabad