State Of U.P.And Another v. Party

2. Heard Sri Dileep Kumar, learned counsel for the applicants and Sri Moti Lal, the learned A.G.A. for the State.

3. On 13.12.2024, this Court entertained the present application and notices were issued to the O.P. No.2, however, there is an office report dated

17.02.2025 that the notices have been served upon O.P. No.2, but till the dictation of the order, nobody has put in appearance on behalf of O.P. No.2.

4. A joint statement has been made by the counsel for the applicants and the learned A.G.A. that they do not want to file any further affidavit and the application may be decided at the fresh stage.

5. The case of the applicants is that a first information report stood lodged by O.P. no.2 against the applicant under Sections 324(4), 351(2), 333, 352, 115(2) of the BNS, 2023 with an allegation that on 20.08.2024 at 02:00 in the noon, the O.P. no.2 and her husband were sitting in their house and at that point of time, the applicants herein barged into the house of O.P. No.2 protesting against the fixing of fiber while making certain constructions. The same had been protested by O.P. No.2. Thereafter the applicants hurled abuses and started hitting the O.P. no.2 and her husband with the bricks, pursuant whereto O.P. No.2 sustained injuries on her right leg and the applicants herein proceeded to enter the room and started creating a ruckus while throwing away the articles which were already there. On hearing the hue and cry raised, the neighbours also came, an attempt was made to lodge 2 NA528 No. 41941 of 2024 first information report, but the police was in connivance with applicant no.1 and FIR was not being lodged and in return, threat was being administered that a civil suit is pending and a case will be lodged against O.P. No.2. Thereafter a complaint was lodged before the D.I.G, S.S.P, National Women Commission, which resulted lodging of the first information report being FIR No.0748 on 27.07.2024. Post recording of the statement under Section 161 of CrPC of the first informant and majeed statement and also of the other independent witnesses, a charge sheet came to be submitted against the applicant being Case Crime No.748 of 2024, under Sections 324(4), 351(2), 333, 352, 115(2) of the BNS, 2023 dated 03.10.2024.

6. Questioning the charge sheet, the present application has been preferred.

7. Learned counsel for the applicant has submitted that the applicant has been falsely implicated. They have not committed any offence and there happens to be variations and contradictions in the statement of the first informant, vis-a-vis the allegation in the complaint, in the complaint, the allegation is regarding committing of criminality on 20.08.2024 at 02:00 in the noon, whereas in the statement of O.P. No.2, the incident is stated to be at 08:00 in the morning on 20.08.2024. Submission is that the said contradiction and variation itself erodes the prosecution theory and makes the same sans credibility. It is also contended that no such incident took place and further the first applicant at that point of time was already working in his office as he seeks to rely upon at Annexure-6 at page-49 being a certificate issued on the basis of a Bio-metric card, as the first applicant was in the office on 20.08.2024 from 09:00 A.M. - 02:00 P.M. - 18:00 -09:00 P.M. Submission is that that the applicant was not present on the spot and he was in his office which stands proved that there is no justification to hold that the applicant is guilty. It is also contended that the other applicants had travelled to Bareilly on account of Raksha Bandhan. Reliance has been placed upon the toll records and CCTV footage. It is further contended that there happens to be a civil suit pending between the first applicant and the opposite parties before the Court of Civil Judge (Sr. Div.) Moradabad and the dispute itself, if any, is a civil dispute which has been given a criminal tench. Learned counsel for the applicant submits that though the injury report is dated 29.08.2024, but the same is two days subsequent to lodging of the FIR dated 27.08.2024 that too the injuries had been opined to be two weeks' old showing the fact that no injury was sustained by the O.P. No.2, once the incident is dated 20.08.2024. Learned counsel for the applicants 3 NA528 No. 41941 of 2024 further as per the instructions submits that the applicant shall be filing a discharge application.

8. Learned A.G.A. on the other hand submits that whatever arguments have been sought to be made are the matter of defence, particularly when the question relatable to the applicants not being present on the spot when the said incident took place, is an alibi which is subject matter of proceedings post-conduction of the trial. It cannot be a ground to hold the charge-sheet to be illegal. It is also contended that merely because there happens to be pendency of a civil suit would not be a ground to hold that the criminal proceedings are abuse of process of law, as the same is subject matter of defence, consideration whereof was required only when commences.

9. I have heard the submission so made across the Bar and perused the record carefully.

10. Apparently, a first information report stood lodged by the O.P. No.2 against the applicants relatable to commission of the offences on 20.08.2024 at 02:00. In the statement of the OP. No.2 the time of the incident is stated to be at 08:00 in the morning on 20.08.2024. Though the applicants may be right that there are contradictions, but this Court at this stage in the present proceedings is not required to delve into the factual issues, particularly, the fact that the applicants claim alibi, they were not present and while relying upon CCTV footage and Biometric card/ a certificate issued by the employer and also the aspect related to import and the impact of the pendency of the civil suit.

11. Considering the submissions so made across the Bar and looking into the nature of allegations and stands of the parties, the application is disposed of directing the applicants to file the proceedings by way of discharge application by 19.09.2025 and this Court has no reason to disbelieve that the court below shall decide the same with most expedition.

12. Till the discharge application is decided, no coercive action shall be taken against the applicants in Case No.47565 of 2024, (State of U.P. Vs. Santosh Kumar and others), arising out of Case Crime No.748 of 2024, under Sections 115(2), 352, 333, 351(2), 324(4) of the BNS, 2023, P.S. Majhaula, District Moradabad, pending in the Court of Chief Judicial Magistrate, Mordabad. 4 NA528 No. 41941 of 2024

13. The protection accorded to the applicants is only available subject to compliance of terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench. September 2, 2025 N.S.Rathour (Vikas Budhwar,J.) SWETA YADAV High Court of Judicature at Allahabad

2. Heard Sri Dileep Kumar, learned counsel for the applicants and Sri Moti Lal, the learned A.G.A. for the State.

3. On 13.12.2024, this Court entertained the present application and notices were issued to the O.P. No.2, however, there is an office report dated

17.02.2025 that the notices have been served upon O.P. No.2, but till the dictation of the order, nobody has put in appearance on behalf of O.P. No.2.

4. A joint statement has been made by the counsel for the applicants and the learned A.G.A. that they do not want to file any further affidavit and the application may be decided at the fresh stage.

5. The case of the applicants is that a first information report stood lodged by O.P. no.2 against the applicant under Sections 324(4), 351(2), 333, 352, 115(2) of the BNS, 2023 with an allegation that on 20.08.2024 at 02:00 in the noon, the O.P. no.2 and her husband were sitting in their house and at that point of time, the applicants herein barged into the house of O.P. No.2 protesting against the fixing of fiber while making certain constructions. The same had been protested by O.P. No.2. Thereafter the applicants hurled abuses and started hitting the O.P. no.2 and her husband with the bricks, pursuant whereto O.P. No.2 sustained injuries on her right leg and the applicants herein proceeded to enter the room and started creating a ruckus while throwing away the articles which were already there. On hearing the hue and cry raised, the neighbours also came, an attempt was made to lodge 2 NA528 No. 41941 of 2024 first information report, but the police was in connivance with applicant no.1 and FIR was not being lodged and in return, threat was being administered that a civil suit is pending and a case will be lodged against O.P. No.2. Thereafter a complaint was lodged before the D.I.G, S.S.P, National Women Commission, which resulted lodging of the first information report being FIR No.0748 on 27.07.2024. Post recording of the statement under Section 161 of CrPC of the first informant and majeed statement and also of the other independent witnesses, a charge sheet came to be submitted against the applicant being Case Crime No.748 of 2024, under Sections 324(4), 351(2), 333, 352, 115(2) of the BNS, 2023 dated 03.10.2024.

6. Questioning the charge sheet, the present application has been preferred.

7. Learned counsel for the applicant has submitted that the applicant has been falsely implicated. They have not committed any offence and there happens to be variations and contradictions in the statement of the first informant, vis-a-vis the allegation in the complaint, in the complaint, the allegation is regarding committing of criminality on 20.08.2024 at 02:00 in the noon, whereas in the statement of O.P. No.2, the incident is stated to be at 08:00 in the morning on 20.08.2024. Submission is that the said contradiction and variation itself erodes the prosecution theory and makes the same sans credibility. It is also contended that no such incident took place and further the first applicant at that point of time was already working in his office as he seeks to rely upon at Annexure-6 at page-49 being a certificate issued on the basis of a Bio-metric card, as the first applicant was in the office on 20.08.2024 from 09:00 A.M. - 02:00 P.M. - 18:00 -09:00 P.M. Submission is that that the applicant was not present on the spot and he was in his office which stands proved that there is no justification to hold that the applicant is guilty. It is also contended that the other applicants had travelled to Bareilly on account of Raksha Bandhan. Reliance has been placed upon the toll records and CCTV footage. It is further contended that there happens to be a civil suit pending between the first applicant and the opposite parties before the Court of Civil Judge (Sr. Div.) Moradabad and the dispute itself, if any, is a civil dispute which has been given a criminal tench. Learned counsel for the applicant submits that though the injury report is dated 29.08.2024, but the same is two days subsequent to lodging of the FIR dated 27.08.2024 that too the injuries had been opined to be two weeks' old showing the fact that no injury was sustained by the O.P. No.2, once the incident is dated 20.08.2024. Learned counsel for the applicants 3 NA528 No. 41941 of 2024 further as per the instructions submits that the applicant shall be filing a discharge application.

8. Learned A.G.A. on the other hand submits that whatever arguments have been sought to be made are the matter of defence, particularly when the question relatable to the applicants not being present on the spot when the said incident took place, is an alibi which is subject matter of proceedings post-conduction of the trial. It cannot be a ground to hold the charge-sheet to be illegal. It is also contended that merely because there happens to be pendency of a civil suit would not be a ground to hold that the criminal proceedings are abuse of process of law, as the same is subject matter of defence, consideration whereof was required only when commences.

9. I have heard the submission so made across the Bar and perused the record carefully.

10. Apparently, a first information report stood lodged by the O.P. No.2 against the applicants relatable to commission of the offences on 20.08.2024 at 02:00. In the statement of the OP. No.2 the time of the incident is stated to be at 08:00 in the morning on 20.08.2024. Though the applicants may be right that there are contradictions, but this Court at this stage in the present proceedings is not required to delve into the factual issues, particularly, the fact that the applicants claim alibi, they were not present and while relying upon CCTV footage and Biometric card/ a certificate issued by the employer and also the aspect related to import and the impact of the pendency of the civil suit.

11. Considering the submissions so made across the Bar and looking into the nature of allegations and stands of the parties, the application is disposed of directing the applicants to file the proceedings by way of discharge application by 19.09.2025 and this Court has no reason to disbelieve that the court below shall decide the same with most expedition.

12. Till the discharge application is decided, no coercive action shall be taken against the applicants in Case No.47565 of 2024, (State of U.P. Vs. Santosh Kumar and others), arising out of Case Crime No.748 of 2024, under Sections 115(2), 352, 333, 351(2), 324(4) of the BNS, 2023, P.S. Majhaula, District Moradabad, pending in the Court of Chief Judicial Magistrate, Mordabad. 4 NA528 No. 41941 of 2024

13. The protection accorded to the applicants is only available subject to compliance of terms and conditions and timeline as provided herein and in case of default, the order shall stand vacated without reference to the Bench. September 2, 2025 N.S.Rathour (Vikas Budhwar,J.) SWETA YADAV High Court of Judicature at Allahabad