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Judgment
Hon'Ble Sandeep Jain, J.
The instant Criminal Misc. Application under Section 482 Cr.P.C. has been filed for quashing the charge sheet no.26A of 1997 dated 07.12.1997 of Case Crime No.23 of 1997, under Section 302 I.P.C., Police Station Maina Ther, District Moradabad and stay the further proceedings of Criminal Case No.2789 of 1998 (State vs. Arbab and others), pending in the court of Chief Judicial Magistrate, Moradabad during the pendency of the present petition before this Hon'ble Court.
The factual matrix of the case, in brief, is that the first informant, Smt. Samshul Nisa alias Sharbatul Nisha, moved an application at Police Station Maina Ther, District Moradabad, on 14.01.1997, alleging therein that in the intervening night of 13/14.01.1997, at about 1:00 a.m., some persons knocked at the door of her house and asked her to open the door, representing themselves to be police personnel. When her son, Najam alias Kamal Aziz, opened the door, he was immediately shot at. On hearing the sound of the gunshot, the informant came outside and saw her son having been shot. He was also assaulted on his head by tabal, as a result whereof he sustained an injury and blood started oozing therefrom. She further alleged that she saw the assailants fleeing from the spot and that she could identify them if shown to her.
On the basis of the aforesaid application moved by the informant, Smt. Samshul Nisa alias Sharbatul Nisha, an FIR was registered on 14.01.1997 at 7:35 a.m. against unknown persons as Case Crime No. 23 of 1997, under Section 302 IPC, at Police Station Maina Ther, District Moradabad. The corresponding entry was also made in the General Diary at Serial No. 11 at 7:35 a.m. on the same date.
The post-mortem examination of the deceased, Najam alias Kamal Aziz, was conducted on 14.01.1997 at 2:40 p.m. by Dr. R.P. Singh. In the post-mortem report, a gunshot wound of entry was found on the right temporal region, around which blackening was present. An incised wound was also found on the left side of the forehead, underneath which the temporal and frontal bone was found fractured. Besides the aforesaid injuries, 29 small pellets and other wadding/plastic material were recovered from the brain of the deceased. In the opinion of the doctor, the deceased died due to the aforesaid gunshot injuries.
After the initial investigation, a charge-sheet was submitted only against accused Arbab alias Bachhu under Section 302 IPC. No charge-sheet was submitted against the accused-applicant, Azeem Wasif alias Babboo, on the ground that at the relevant time he was residing in England. Subsequently, the matter was further investigated and, thereafter, a charge-sheet was also submitted against the accused-applicant, Azeem Wasif alias Babboo, which has been challenged in the instant proceedings under Section 482 Cr.P.C.
Learned counsel for the accused-applicant submits that the alleged incident occurred in the intervening night of 13/14.01.1997, when the complainant's son, Najam alias Kamal Aziz, was shot at by some unknown persons. The aforesaid fact is also evident from the FIR, which was lodged in the morning of 14.01.1997 and did not disclose the names of any of the assailants.
It is further submitted that, from the documentary evidence available on record, including the passport and visa of the accused-applicant, it is apparent that he had left India on 31.12.1996 and was not present in India on the intervening night of 13/14.01.1997. Consequently, according to learned counsel, the accused-applicant could not have committed the alleged murder, particularly when a direct role has subsequently been attributed to him in the commission of the offence.
Learned counsel has further submitted that the trial of co-accused Arbab alias Bachhu in Sessions Trial No. 1089 of 2015, State of U.P. versus Arbab alias Bachhu, arising out of the same incident, has already culminated in his acquittal. The learned Additional Sessions Judge, Court No. 9, Moradabad, by judgment and order dated 25.07.2026, has acquitted him of the charge under Section 302 IPC.
It is, thus, submitted that there is neither any ocular evidence nor any other circumstantial evidence connecting the accused-applicant with the alleged murder of the complainant's son. Learned counsel, therefore, contends that continuation of the criminal proceedings against the accused-applicant would amount to an abuse of the process of law and the Court.
Learned counsel for the accused-applicant further submits that the fact that the accused-applicant was in England at the relevant time is an unimpeachable fact, which is duly borne out from the documentary evidence on record. It is contended that such unimpeachable and incontrovertible documentary evidence can be taken into consideration at the stage of exercising jurisdiction under Section 482 Cr.P.C., in view of the recent judgment of the Hon'ble Supreme Court in Rahul vs. State of U.P. and another 2026 SCC OnLine SC 1538.
On the strength of the aforesaid submissions, learned counsel for the accused-applicant prays that the instant application under Section 482 Cr.P.C. be allowed and the criminal proceedings pending against the accused-applicant, arising out of the aforesaid case crime number, be quashed.
Learned counsel appearing for the legal heir of the deceased complainant/respondent no. 7, Smt. Samshul Nisa alias Sharbatul Nisha, submits that the respondent does not wish to contest the instant petition. He further submits that, in compliance with the order dated 07.08.2023 passed by this Court, the daughter of the original respondent, namely, Azmat Jafri, has already filed her affidavit to the same effect, as the original respondent had died on 11.08.2021. Learned counsel fairly concedes that there is no ocular or other circumstantial evidence available on record linking the accused-applicant with the alleged crime.
I have heard learned counsel for the parties and have perused the material brought on record along with the instant application.
The Apex Court in the case of Rahul (supra), while considering the question as to whether the defence of alibi based upon unimpeachable documentary evidence can be considered at the stage of entertaining a petition under Section 482 Cr.P.C., has held as under:
" 19. In Rajiv Thapar v. Madan Lal Kapoor (2013) 3 SCC 330, this Court laid down a 4-step test to determine if criminal proceedings can be quashed on the basis of defense material/official records prior to trial:
“30.Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5.If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”
27.This Court in Prashant Bharti v. State (NCT of Delhi)(2013)9 SCC 293 , while applying Rajiv Thapar (2013) 3 SCC 330 case held that where defence material of sterling and unimpeachable quality is placed on record, and such material completely demolishes the prosecution case, the High Court would be justified in quashing the proceedings even at the pre-trial stage, since no purpose is served in allowing a prosecution to continue when the material produced convincingly demonstrates that the allegations are patently false. The Court further proceeded to hold that to permit the prosecution to proceed further in such circumstances would itself be an abuse of the process of the court.
28.In Harshendra Kumar D. v. Rebatilata Koley (2011) 3 SCC 351, this Court reiterated that while exercising jurisdiction under Section 482 Cr. P.C., the High Court can look into material that has a bearing on the question whether continuance of the criminal proceedings would amount to an abuse of the process of court, and that if, on the face of documents which are beyond suspicion or doubt, no case is made out against the accused, the High Court would be justified in exercising its jurisdiction to quash the proceedings.
29.In Mirza Iqbal alias Golu v. State of Uttar Pradesh (2022) 16 SCC 697, this Court considered the quashing of proceedings where the accused's official duty record demonstrated his absence from the place of occurrence.
30.This Court is mindful of the statement of law in Rajendra Singh v. State of UP (2007) 7 SCC 378 that the burden of proving a plea of alibi lies upon the accused and is ordinarily to be discharged by leading evidence at trial, and that a finding on alibi cannot be recorded by the High Court for the first time in a petition under Section 482 Cr. P.C. on the strength of affidavits of interested persons which the prosecution has had no opportunity to test by cross-examination.
31.However, that principle, was applied to a case where the material relied upon consisted of affidavits sworn by private individuals before the police, whose veracity was inherently open to challenge and required cross-examination. It cannot be read as laying down an inflexible rule that no species of documentary material touching upon presence or absence of the accused may ever be looked into at the threshold, irrespective of its source, character, and the absence of any dispute as to its authenticity. Where the material in question is an official record maintained in the ordinary course of duty by a wing of the Armed Forces of the Union, is placed on record from the earliest stage of investigation itself, and has never been impugned as forged, fabricated, or otherwise unreliable by the prosecution at any stage including before the IO, who himself acknowledged that evidence emerged that appellant was on his duty at the time of the incident such material partakes of the character of unimpeachable material contemplated in Prashant Bharti (supra) and Harshendra Kumar (supra), and calls for consideration even at the threshold. To hold otherwise would be to elevate procedural formalism over substantial justice and to compel an undeniably absent accused to undergo the ordeal of a full sessions trial notwithstanding admitted and unimpeachable proof to the contrary.
34.In these circumstances, continuing a full sessions trial against the appellant alone, while his co-accused stand acquitted on the self-same evidence, would not further the cause of justice but would subject the appellant to the ordeal and stigma of a criminal trial whose substratum has already collapsed. The High Court, in the impugned judgment, proceeded on the premise that the appellant's reliance on the service certificate was a bare plea of alibi of the kind considered in Rajendra Singh (supra), and declined to examine corroborating circumstances. This, in the considered view of this Court, constituted a failure to appreciate unimpeachable material bearing directly on the question of abuse of process, and calls for interference."
From the record, it is apparent that the complainant's son, Najam alias Kamal Aziz, was shot by unknown persons in the intervening night of 13/14.01.1997 at about 1:00 a.m., which fact also stands corroborated from the post-mortem report. It is further apparent from the post-mortem report that, apart from the gunshot injury, the deceased had also sustained an injury caused by a sharp-edged weapon, which, however, was not the cause of his death.
It is further apparent from the documentary evidence produced before the Investigating Officer that the accused-applicant had left India on 31.12.1996 for England and had not returned to India till 14.01.1997. The aforesaid documentary evidence has not been rebutted by any material available on record. Thus, the material placed on record prima facie establishes that the accused-applicant was not present in India at the relevant time.
Although the FIR was initially lodged against unknown persons, subsequently the accused-applicant was sought to be implicated in the alleged crime. However, in the trial of co-accused Arbab alias Bachhu, being Sessions Trial No. 1089 of 2015, the statement of the complainant, Smt. Samshul Nisa alias Sharbatul Nisha, was recorded as PW-1, wherein she categorically stated that the accused-applicant, along with Arbab alias Bachhu, were not involved in the murder of her son.
It is also significant that, in the aforesaid Sessions Trial, the prosecution examined the retired Investigating Officer, Muhammad Anees, as PW-8, who, in his cross-examination, admitted that he had not submitted a charge-sheet against the accused-applicant as the accused-applicant was not present in India from 31.12.1996 to 14.01.1997. He stated in examination-in-chief that the accused-applicant had left India for England on 31.12.1996, regarding which a report was also obtained from Indira Gandhi International Airport, New Delhi. He further admitted that, from the statements of Smt. Azra and Sharif Ahmed recorded under Section 161 Cr.P.C., the involvement of the accused-applicant had subsequently come to light.
However, Sharif Ahmed, who was examined as PW-3 in the aforesaid Sessions Trial, categorically stated that he was not an eyewitness to the incident and that the offence had been committed by some unknown person. It is also apparent that Smt. Azra was not examined by the prosecution in the said Sessions Trial.
Thus, from the material available on record, it is apparent that there is neither any reliable ocular evidence nor any other circumstantial evidence connecting the accused-applicant with the alleged murder. Despite the absence of such material, a charge-sheet has been submitted against the accused-applicant, which, in the facts and circumstances of the present case, amounts to an abuse of the process of the Court.
The documentary evidence relied upon by the accused-applicant in support of his plea of alibi remains unrebutted. The copy of his visa discloses that he departed from India on 31.12.1996 from Indira Gandhi International Airport, New Delhi and arrived on the same day at Heathrow Airport, London. Thereafter, he had not returned to India till 14.01.1997. No material has been brought on record by either the State or the contesting respondent no. 7 to establish that the accused-applicant was present in India at the time of commission of the alleged offence. It is also noteworthy that the complainant herself did not support the prosecution case in the aforesaid Sessions Trial and specifically deposed that the accused-applicant was not involved in the alleged murder of her son.
In the aforesaid facts and circumstances, if the accused-applicant is directed to face trial despite the absence of any reliable ocular or circumstantial evidence connecting him with the alleged offence, it would only result in prolonging his agony and subjecting him to a criminal trial which, on the material presently available on record, does not appear likely to serve the ends of justice.
Having regard to the aforesaid facts and circumstances of the case and the law laid down by the Apex Court in Rahul (supra), this Court is of the considered opinion that continuation of the criminal proceedings against the accused-applicant would amount to an abuse of the process of the Court. It is, therefore, a fit case for exercise of the inherent jurisdiction of this Court under Section 482 Cr.P.C.
Accordingly, for the foregoing reasons, the instant application is allowed.
Consequently, the proceedings of Case Crime No. 23 of 1997, State versus Azeem Wasif alias Babboo, under Section 302 IPC, Police Station Maina Ther, District Moradabad, including charge sheet no.26A of 1997 dated 07.12.1997, as well as all consequential proceedings arising therefrom, are hereby quashed.