Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1293 (ALL)

Tausiful Hasan v. State of U. P.

2016-04-07

OM PRAKASH VII

body2016
JUDGMENT Om Prakash-VII,J. This application under Section 482 CrPC has been filed with the prayer to quash the order dated 1.3.2016 (Annexsure-2 to the application) passed by the Metropolitan Magistrate-7th, kanpur Nagar as well as the entire proceedings in Criminal Case No. 2687 of 2014 (State vs. Tausiful Hasan), arising out of Case Crime No. 168 of 2012, under Sections 376, 328, 506 IPC and 3(2) (v) S.C./S.T. Act, Police Station Juhi, District Kanpur Nagar. Further prayer has been made to stay the further proceedings of the aforesaid criminal case. 2. Heard Shri G.S. Chaturvedi, learned Senior Counsel assisted by Shri S.F.A. Naqvi, learned counsel for the applicant, Shri Saurabh Srivastava, learned counsel for the opposite party no.2 and Shri A.K. Sand, learned AGA appearing for the State and perused the record. 3. It is submitted by the learned Senior Counsel appearing for the applicant that the FIR has been lodged on false grounds while the applicant had not committed any offence. The police has also submitted charge sheet on the basis of insufficient evidence against the applicant. Essential ingredients to constitute offence are lacking. The present prosecution has been instituted with a malafide intention. It is further submitted that the cognizance taken by the concerned Magistrate in the present matter is illegal, as the Union of India has promulgated an Ordinance i.e. 'The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 and in the said Ordinance, there is specific provision for taking cognizance in the matter by the Special Court. Referring to the date of filing of the charge-sheet and date of taking cognizance, it is further submitted that the application moved by the applicant to send the record to the Special Court for the purpose of taking cognizance was rejected illegally. On the basis of cognizance taken by the concerned Magistrate, the entire criminal proceedings of the present case is bad in the eye of law and is vitiated for want of jurisdiction. Learned Senior Counsel has also referred to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. 4. On the basis of cognizance taken by the concerned Magistrate, the entire criminal proceedings of the present case is bad in the eye of law and is vitiated for want of jurisdiction. Learned Senior Counsel has also referred to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. 4. On the other hand, learned counsel for the opposite party no.2 and the learned AGA submitted that earlier the applicant had approached this Court taking recourse of the provisions of Section 482 CrPC through application No. 37225 of 2015 and this Court vide order dated 4.1.2016 disposed of the said application observing that the impugned order does not call for any interference as it reflects no illegality. There is no abuse of court's process either. This fact has been concealed by the applicant. Learned counsel for the opposite party no.2 as well as the learned AGA also referred to repeal and saving clause of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 and submitted that in the Act itself it has been provided that "The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 is hereby repealed. Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the Principal Act, as amended by this Act. Hence, in the circumstances, the present application is devoid of merits and is not maintainable. 5. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record. 6. A perusal of the record shows that the applicant had earlier approached this Court taking recourse of the provisions of Section 482 CrPC vide application no. 37225 of 2015 and this court by the order dated 4.1.2016 disposed of the said application. The said order dated 4.1.2016 is as under: "This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned order dated 4.11.2015 passed by Metropolitan Magistrate 7th Kanpur Nagar as well as entire proceeding in Criminal Case No. 2687 of 2014 arising out of Case Crime No. 168 of 2012 u/s 376, 328, 506 IPC and 3(2)V SC/S.T. Act P.S. Juhi District Kanpur Nagar. Heard applicants' counsel, and learned AGA. Entire record has been perused. Heard applicants' counsel, and learned AGA. Entire record has been perused. Counsel for the applicant has not raised any submission with regard to the merits of the case and the only order under challenge whose quashing has been sought is order dated 4.11.2015 whereby non bailable warrant appear to have been issued against the applicant. It has been fairly submitted by the counsel for the applicant that earlier also an application u/s 482 Cr.P.C. numbering 30409 of 2015 had been filed which was finally disposed off by another bench on 9.10.2015. The only submission made before the court by the counsel now is that as the non bailable warrant have been issued the applicant wants to appear himself before the court and get himself bailed out and in that regard some protective direction may be issued to facilitate his appearance. The impugned order does not call for any interference as it reflects no illegality. There is no abuse of court's process either. In the peculiar circumstances of the matter, it may be observed that in case the accused may appear before the court below and apply for bail within two months from today, the same shall be considered and decided in accordance with law. Meanwhile no coercive measures shall be taken or given effect to in the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier. With the aforesaid observations, this application is disposed off." 7. It further shows that the applicant had made prayer in the said application to quash the entire proceeding in criminal case no. 2687 of 2014 though during course of argument only prayer was made to issue direction to the court concerned to facilitate his appearance. The Court while passing the said order dated 4.1.2016 observed that the impugned order does not call for any interference as it reflects no illegality. The cause of action described in the present application was in existence at the time of filing of the aforesaid application as cognizance has already been taken by the concerned Magistrate. The applicant has waived off the right to challenge the cognizance order. Only prayer during course of argument was made to issue a direction to facilitate his appearance. The cause of action described in the present application was in existence at the time of filing of the aforesaid application as cognizance has already been taken by the concerned Magistrate. The applicant has waived off the right to challenge the cognizance order. Only prayer during course of argument was made to issue a direction to facilitate his appearance. Since this fact has not been disclosed and the order dated 4.1.2016 has not been complied with by the applicant and the present application has been filed almost on the same cause of action, in my view, the present application is not maintainable. 8. Apart from the above, if the submissions made by the learned counsel for the parties are taken into consideration then also keeping in view the specific provision provided under the repeal and saving clause of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, cognizance in the matter is saved by Clause 13 itself and on this score, proceeding of the aforesaid criminal case cannot be said to be illegal. 9. In view of the aforesaid discussions, I am of the opinion that no ground is made out to interfere with the matter by this Court. There is no infirmity or illegality in the order dated 1.3.2016. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.