Arun Saini & Others vs State Of Uttarakhand And Others

R.C. Khulbe, J

Since all these petitions have been filed by the applicants for challenging the common summoning order passed by the court below, hence these are

taken up together and decided by this common judgment.

By way of the present applications preferred under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as

‘Cr.P.C’), the applicants have challenged the summoning order dated 16.11.2009 passed by the Chief Judicial Magistrate, Udham Singh Nagar

and charge sheet under Sections 342, 465, 466, 468, 469, 470 & 120-B IPC in criminal case no. 3435 of 2009, State vs. G.B. Pandey and others.

The facts, to the limited extent necessary, are that G.B. Pandey, SHO, Kotwali-Sitarganj, District Udham Singh Nagar lodged an FIR on

14.08.2006 at about 5:25 AM against Khalil Ahmed and Shahid @ Guddu with the allegations that on 14.08.2006, he along with SI Umed Singh Danu,

Constable Matloob Hussain, Constable Ratan Singh Gill, Constable Vipin Kumar and driver Prem Singh were going to Pilibheet for patrolling. When

they reached Sherkata check post a vehicle was seen coming from Pilibheet area. The said vehicle was driven by accused Khalil Ahmed. On

searching, there were no vehicular documents and he told that the said Tavera Car bearing No. UP 30A 2586 was stolen vehicle. Thereafter, the

accused was arrested and stated that he stole this vehicle with the help of Shahid @ Guddu from Haryana. The accused also disclosed that they had

stolen two other vehicles, which were parked at his house. Thereafter, he was taken to his house and two other vehicles i.e. one Armada bearing No.

HR26 H 7305 and a Maruti 800 CC bearing No DDD 5506 were recovered on pointing out of Khalil Ahmed.

After investigation, a charge sheet was filed only against Khalil Ahmed under Sections 41/102 Cr.P.C. and Sections 420, 467, 468, 471, 411 and 414

IPC as well as under Sections 2/3 of the Gangsters Act. The cognizance was taken on 14.02.2007 by the learned Sessions Judge, Nainital.

After cognizance the accused Khalil Ahmed filed a compliant under Section 12 sub-clause 1 Lokayukta Act, before the Lokayukta, Dehradun for

conducting an inquiry. On the basis of this complaint the Hon’ble Lokayukta has recommended for lodging the FIR against the present applicants

on 14.12.2007.

In compliance of the order of Hon’ble Lokayukta, Uttarakhand an FIR under Sections 342, 465, 466, 468, 469, 470 & 120B IPC was lodged

against the present applicants on 18.01.2008 at about 20:25 at Police Station Sitarganj. After investigation a charge sheet was filed on 08.02.2009

against the present applicants. On the basis of charge sheet, the learned Chief Judicial Magistrate, Udham Singh Nagar took the cognizance against

the applicants on 16.11.2009 under Sections 342, 465, 466, 468, 469, 470 & 120B IPC. Aggrieved thereby the present applicants have filed the

applications under Section 482 Cr.P.C. for quashing the charge sheet, summoning the order dated 16.11.2009 and criminal proceedings pending before

the Chief Judicial Magistrate, Udham Singh Nagar.

Heard Mr. Vipul Sharma, learned counsel for the applicants and Mr. J.S. Virk, A.G.A. along with Mr. Rakesh Kumar Joshi, Brief Holder for the

State at length and perused the record produced before this Court.

The facts reveal that the accused Khalil Ahmed had a criminal history because five criminal cases were pending against him as mentioned in para

No. 5 of the this writ petition. On 14.08.2006 at about 1:30 AM when the accused Khalil Ahmed was arrested with Tavera Car bearing No. UP 30A

2586, during interrogation, the accused disclosed that the said car was stolen by him from Haryana. He also disclosed that there were two other cars

parked at his house, which had been stolen by him. On this disclosure statement of Mr. Khalil Ahmed, the accused also got recovered two cars

bearing no. HR26 H 7305 and Maruti 800 cc bearing No. DDD 5506.

It is very strange that when Khalil Ahmed moved a complaint before the Lokayukta, Uttarakhand the cognizance had already been taken by the

learned Sessions Judge, Nainital on 14.02.2007 in S.T No. 1/2007 State Vs. Khalil Ahmed. The accused Khalil Ahmed did not avail the judicial

remedy against the cognizance order dated 14.02.2007 passed by the learned Sessions Judge, Nainital. Instead of availing the judicial remedy, the

accused filed a compliant before the Lokayukta on 01.03.2007. On the basis of that complaint the Hon’ble Lokayukta issued the recommendation

for initiating the criminal proceedings against the present applicants on 14.12.2007. On the basis of the recommendation of the Lokayukta, an FIR was

lodged and charge sheet was filed before the learned Chief Judicial Magistrate. The learned Chief Judicial Magistrate on the basis of charge sheet

took the cognizance on 16.11.2009 against the present applicants, which shows that when the learned Chief Judicial Magistrate took the cognizance

against the present applicants on 16.11.2009, the S.T. No. 1/2007 State Vs. Khalil Ahmed was pending regarding the same issue.

In the session trial, there was no evidence produced by the accused, to show that he was falsely implicated by the present police personnel. There

was no evidence on record, which shows that the police personnel had prepared forged documents regarding recovery of vehicle against the accused

Khalil Ahmed.

It is settled principle of law that two parallel criminal trials cannot be initiated against the same issues.

Since the session trial No. 1/2007 State vs. Khalil Ahmed was pending on 16.11.2009 regarding the stolen vehicles against the accused Khalil

Ahmed before the learned Sessions Judge, Nainital, then for the same matter, no criminal case could be initiated against the arresting police personnel

because the matter was sub-judice before the competent court. If the competent court will reach to the conclusion that it was a forged recovery

planted by the present applicants, then certainly the criminal case could be initiated against the arresting police personnel.

The Lokayukta had passed the order dated 14.12.2007 for lodging the criminal case against the police personnel which is against the settled

principle of law. The Hon’ble Lokayukta had not applied its mind. Apart from that, when the cognizance was taken on 16.11.2009 by the learned

Chief Judicial Magistrate no sanction was obtained by the prosecution as per the law.

Under Section 197 of Cr.P.C. reads as under: -

Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the

Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no

Court shall take cognizance of such offence except with the previous sanction-

[save as otherwise provided in the Lokpal and Kokayuktas aCt, 2013’]

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection

with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection

with the affairs of a State, of the State Government:

1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under

clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression"" State Government"" occurring therein,

the expression"" Central Government"" were substituted.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or

purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of

the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of

that sub- section will apply as if for the expression"" Central Government"" occurring therein, the expression"" State Government"" were substituted.

(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any

member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty

during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction

of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State

Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with

the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with

respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution

was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to

take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence

or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the

trial is to be held.

All the applicants were on official duty on 13/14.08.2006 and they prepared all the documents and lodged the FIR No. 1451 of 2006 under Sections

41/102 Cr.P.C. and under Sections 420, 467, 468, 471, 411 and 414 IPC and under Sections 2/3 Gangsters Act, in their official capacity. In my view

before taking cognizance against the applicants, the sanction under Section 197 Cr.P.C. should have been obtained by the prosecution.

The learned Chief Judicial Magistrate took the cognizance in a stereotyped manner, which was already typed earlier. Only crime number, name of

accused, section, FIR number and date were mentioned on 16.11.2009.

The learned Chief Judicial Magistrate did not apply its judicial mind at the time of taking cognizance. There is a miscarriage of justice.

In these circumstances, the applications filed under Section 482 Cr.P.C. are liable to be allowed. The applications are allowed and the charge

sheet dated 08.02.2009 and summoning order dated 16.11.2009 passed by the learned Chief Judicial Magistrate under Sections 342, 465, 466, 468, 469,

470 & 120B IPC filed in criminal case no. 3435 of 20009 State vs. G.B. Pandey and others, pending before the Chief Judicial Magistrate, Udham

Singh Nagar are hereby quashed.