The Allahabad High Court has granted conditional bail to the accused of murder and robbery.

A Single Bench of Justice Rajeev Misra passed this order while hearing a Criminal Misc Bail Application filed by Vipul Sarkar.

These applications for bail have been filed by applicants Vipul Sarkar, Rakesh Dhali and Shivam Rastogi seeking their enlargement on bail in Case under Sections 302, 394 I.P.C, P.S Bahedi, District-Bareilly during the pendency of trial.

Record shows that an F.I.R dated 2.2.2022 was lodged by first informant Manoj Kumar and was registered as Case under sections 302, 394 IPC, P.S Bahedi, District- Bareilly. In the aforesaid F.I.R unknown persons have been arraigned as accused.

The prosecution story as unfolded in the F.I.R is to the effect that Vinay Kumar elder brother of the first informant resided in a house alone situated in Mohalla-Ram Leela near Durga Gali around Agrawal Dharamshala.

The F.IR further stated that the first informant received information from Rinku Rastogi a neighbour of Vinay Kumar that the door of the house in which the brother of the first informant resides is open and no sound of the brother of the first informant can be heard. As such, an inquiry will be made.

Consequently the first informant made a call on the mobile phone of his elder brother Vinay Kumar but the same was reported to be switched off. Rakesh Kumar also made a phone call to Rinku Rastogi and when he reached the house of the elder brother of the first informant namely Vinay Kumar, he was found lying dead. Thereafter, neighbours were collected. Family members of the first informant reached the place of occurrence and found that the Almirah was broken. The jewellery belonging to the wife of the first informant which included three necklaces, eight bungles, five rings, two chains and other mortgaged goods were also missing. Apart from above, the F.I.R further alleges that cash Rs 4,30,000/- was also looted.

After the aforementioned F.I.R was lodged, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of chapter XII CrPC. He immediately reached the place of occurrence and recovered the dead body of the deceased.

The Court observed that,

Having heard the Senior Counsel for applicant-Vipul Sarkar, the counsel for applicants-Rakesh Dhali and Shivam Rastogi, the A.G.A for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, the complicity of an accused in a case based on circumstantial evidence can be inferred only in accordance with the parameters laid down by the Apex Court in Sarad Birdhichand Sarda (Supra), however, the parameters laid down in aforementioned judgment are not satisfied against the accused-applicants up to this stage, in a case based on circumstantial evidence, motive plays an important role, however, as per the material collected by the Investigating Officer up to this stage, it cannot be said that strong motive has emerged against applicants for committing the crime in question, in fact, the motive behind the occurrence is shrouded in obscurity, the complicity of the applicants in the crime in question is sought to be emphatically alleged on the basis of the following incriminating circumstances, which have emerged against the applicants during the course of investigation- (a) the recovery of mobile phone of the deceased on the pointing of charge sheeted accused, (b) the presence of the applicants in the vicinity of the place of occurrence as per the CCTV footage, (c) the false statement made by accused, Shivam Rastogi, before Investigating Officer in his statement under Section 161 Cr.P.C inasmuch as, accused Shivam Rastogi, in his aforesaid statement stated before the Investigating Officer that after visiting his sister Pooja Rastogi wife of Yogesh Rastogi, who resides in the vicinity of the place of occurrence, he had gone to Bareilly to attend the function regarding marriage anniversary of the son of his Tai, Munni Devi, the same was found to be false as the location of the mobile phone of this accused was found near his home situate at village Mudiya Nabi Baksh, the recovery of Rs 1,15,000/- from the accused, the recovery of yellow metal and certain goods of yellow metal, even if taken together do not complete the chain of events nor do they leave to the conclusion that except for the guilt of accused no other hypothesis is possible, inasmuch as, the recovery made from the applicants could neither be established nor identified as belonging to others, the prosecution story in the FIR that jewellery belonging to the wife of first informant was stolen could not be established to the effect that the stolen goods belong to the wife of first informant, the medical evidence does not support the prosecution story, inasmuch as, the suspicious circumstance at the house of deceased was noticed by Rinku Rastogi at around 00:35 hours on 17.02.2022; however, as per the opinion of the autopsy surgeon, death of deceased had occurred half day before (the post mortem of deceased commenced on 17.02.2022 at 12:00 noon); in the opinion of the autopsy surgeon, the cause of death of deceaed is said to be asphyxia as a result of ante-moretm throttling however, as per the post mortem report the hyoid bone was fractured and there was ligature mark on the neck of the deceased, which prima facie suggest that no throttling was committed upon the deceased.

“Apart from above, simply on the basis of CCTV footage, the complicity of applicants cannot be inferred inasmuch as, the ingress and egress of the accused from the lane, where the house of deceased is situate is at 12:13:14 (entry) & 12:53:10 (exit), which admittedly is much before the time, when aforementioned adverse circumstance existing at the house of deceased was detected by the neighbour of deceased namely Rinku Rastogi, the clean antecedents of applicants, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, yet in spite of above, the A.G.A could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs State of Maharashtra, therefore, irrespective of the objections raised by the A.G.A and the counsel for first informant in opposition to the applications for bail, but without making any comments on the merits of the case, applicants have made out a case for bail”, the Court further observed while allowing the bail application.

The Court ordered that let the applicants-Vipul Sarkar, Rakesh Dhali and Shivam Rastogi, be released on bail in the aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

The Allahabad High Court while allowing an application said that it is well settled that there cannot be any delay in filing the application under Section 311 CrPC as the Section itself contemplates that it can be filed at any stage of the proceedings. It is thus clear that the delay in filing the application cannot be taken as a ground for rejecting the same.

A Single Bench of Justice Rajeev Misra passed this order while hearing an application under section 482 filed by Yograj Singh.

These applications under Section 482 Cr.P.C have been filed challenging the order dated 03.04.2023 passed by Additional Sessions Judge, Mujaffarnagar in Sessions Trial in case under Section 302 IPC, Police Station Bhaurakalan, District-Muzaffarnagar, arising out of Case under Section 302 IPC, Police Station-Bhaurakalan, District Muzaffarnagar, whereby the application dated 07.02.2023 under Section 311 Cr.P.C filed by the first informant/ applicantYograj Singh with the permission of the prosecution has been rejected.

The Court noted that in respect of an incident, which is alleged to have occurred on 06.09.2003, a delayed FIR dated 07.09.2003 was lodged by first informant/applicant-Yograj Singh and was registered as Case under Section 302 IPC, Police Station-Bhaura Kalan, District-Muzaffarnagar. In the aforesaid FIR, 3 persons namely – (1) Naresh, (2) Parveen and (3) Bittu were nominated as named accused.

After the FIR was lodged, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter-XII CrPC.

On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that offence complained of is duly established. Accordingly, he submitted the police report dated 01.05.2005 in terms of Section 173(2) CrPC (Charge Sheet).

After submission of the aforementioned police report (charge sheet), cognizance was taken upon the same by the concerned Magistrate. However, as offence complained of is exclusively triable by court of Sessions, concerned Magistrate, accordingly, committed the case to the Court of Sessions.

Resultantly, Sessions Trial (State Vs Naresh Tekait) under Section 302 IPC, Police Station Bhaurakalan, District Muzaffarnagar came to be registered.

Charges were framed against the charge sheet accused namely Naresh Tekait, vide framing of charge order dated 11.06.2007, who denied the same. Accused pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.

After the trial had proceeded substantially and the statement of the accused under Section 313 Cr. P. C was recorded on 19.12.2022, a transfer application was filed by applicant Yograj Singh directly before the Supreme Court seeking transfer of above mentioned sessions trial to Delhi on account of prejudice with the Court as well as the Presiding Officer.

However, prior to the order dated 10.02.2023 referred to above, applicant-Yograj Singh filed an application dated 07.02.2023, under Section 311 CrPC (Paper No 338 Kha) in aforementioned Sessions Trial praying therein that S.S Chaudhary, the then SHO, P.S Bhaurakalan be summoned along with the records of Case under Sections 147, 148, 186, 189, 353 IPC and 7 Criminal Law Amendment Act, PS Bhaurakalan, District Muzaffarnagar.

Subsequently, another application dated 21.03.2023 was filed by applicant-Yograj Singh praying therein that S.S Chaudhary, the then SHO, P.S Bhaura Kalan and the Investigating Officer Gulab Chand Arya be summoned.

Aforesaid application dated 07.02.2023 filed by the applicant Yograj Singh was opposed by the accused-opposite party 2 Naresh Tikait.

Ultimately the court below vide order dated 03.04.2023 dismissed the application (Paper No 338 Kha) filed by applicant-Yograj Singh.

Thus feeling aggrieved by the order dated 03.04.2023 referred to above, first informant-Yograj Singh and the State of U.P have filed aforementioned applications under Section 482 Cr.P.C before the Court.

Anoop Trivedi, the Senior Counsel appearing for applicant-Yograj Singh submitted that the order impugned in the application is manifestly illegal and without jurisdiction.

According to the Senior Counsel for applicant, there cannot be any delay in filing an application under Section 311 CrPC, as according to the provisions contained in Section 311 CrPC, the application for recall of a witness can be filed at any stage of the proceedings.

Manuraj Singh, the A.G.A has supported the submissions urged by the Senior Counsel for applicant-Yograj Singh. He also contends that in the facts and circumstances of the case, the order impugned is liable to be set aside.

The Court found that the issue which arises for determination in the application is;- what are the parameters for exercising jurisdiction under Section 311 CrPC. As a corollary to the above, the court will also have to consider whether the order impugned in the applications is in conformity with the said parameters or not.

The Court further found that it is true that initially a transfer application was filed by applicant-Yograj Singh before the Supreme Court seeking transfer of above mentioned Sessions Trial from Muzaffarnagar to Delhi on the grounds of prejudice with the Court as well as the Presiding Officer.

The Court also found that during the pendency of the transfer application dated 07.02.2023, an application was filed by applicant-Yograj Singh in terms of Section 311 CrPC. After the dismissal of the transfer application by the Supreme Court, vide order dated 10.02.2023, another application under Section 311 Cr.P.C was filed by applicant-Yograj Singh on 21.03.2023. The genesis of the applications is explicit from the applications as well as the material on record of the Sessions Trial inasmuch as, the document i.e the personal diary of the deceased had been recovered by the Investigating Officer and a recovery memo/seizure memo of the same was prepared. However, due to inadvertence, the said document could not be proved before court below at the stage of the trial under Section 321 Cr.P.C i.e prosecution evidence stage. It is subsequent to above, that the applications under Section 311 Cr.P.C referred to above were filed.

The Court said that it is well settled that there cannot be any delay in filing the application under Section 311 Cr.P.C as the Section itself contemplates that an application under Section 311 Cr.P.C can be filed at any stage of the proceedings. It is thus clear that the delay in filing the application cannot be taken as a ground for rejecting the same.

Apart from above, the Court observed that in case, the above application is allowed, no prejudice shall be caused to 16 the accused as the said document which has already been recovered/seized will not lead to a departure from the tone and tenor of the evidence of the prosecution witnesses of fact. The document sought to be proved and thereafter admitted in evidence shall be helpful for the court to discover the truth as it shall establish enmity and motive against the accused. Therefore, the application under Section 311 Cr.P.C filed by the applicant-Yograj Singh is squarely covered under paragraph 23 (h) and 23(n) of the judgment in Rajaram Prasad Yadav (Supra).

The Court further observed that the court below has only considered the content of the application but has not delved into the question that the documents sought to be proved and thereafter admitted in evidence is already on the record of the Sessions Trial as the same has already been recovered and seized by the Investigating Officer during the course of investigation, no prejudice is going to be caused to the defence as the said documents would have been proved and admitted in evidence in normal course but for the inadvertent omission on the part of the prosecution, there will be no change in the nature of the evidence already adduced by the prosecution nor there will be a departure from the prosecution case as unfolded in the testimonies of the prosecution witnesses of fact and coupled with the fact that court below has not recorded any finding regarding the relevance of the same for unearthing the truth. In view of the discussions made above, the applications succeed and are therefore liable to be allowed.

“The order dated 03.04.2023 passed by Additional Sessions Judge, Mujaffarnagar in Sessions Trial (State Vs Naresh Tikait) under Section 302 IPC, Police Station-Bhaura Kalan, District Muzaffarnagar is hereby quashed.

Considering the fact that the trial is of the year, 2004 and there is a direction by the Supreme Court order dated 10.02.2023 passed in Transfer Petition (Criminal) to decide the above mentioned Sessions Trial within a period of 6 months from the date of the order i.e 10.02.2023, the application under Section 311 Cr.P.C filed by applicant-Yograj Singh (paper no 338 Kha) shall stand allowed. The court below is directed to undertake the necessary exercise regarding the said application forthwith and complete the consequential proceedings regarding the same on priority basis”, the Court ordered.

The Allahabad High Court has admitted the appeal filed by disqualified MP Afzal Ansari challenging his conviction in the Gangster Act case.

The Court has also summoned the lower court’s record related to the case.

A Single Bench of Justice Rajeev Misra passed this order while hearing a criminal appeal filed by Ansari.

The Additional Advocate General has raised a preliminary objection by submitting that the impugned conviction awarded by court below is under Section 3 of the Gangsters Act, therefore, the order impugned is appealable under Section 18 of the Gangsters Act. However, the appeal has been filed under Section 374(2) Cr.P.C, which is incorrect.

At the juncture, a request is made by Upendra Upadhyay, the counsel for appellant seeking permission of the Court to amend the Section under which the appeal has been filed.

Prayer made by the counsel for the appellant is bonafide. Same is not opposed by the A.G.A and D.K Singh, assisted by Sudist Kumar, representing the Victim, the Court noted.

Accordingly, it is allowed by the High Court.

“Let necessary amendment in the memo of appeal as well as the cause title of the application for suspension of sentence be carried out by the counsel for appellant during the course of the day.

By virtue of the provisions contained in Section 19(4) of the UP Gangster and Anti-Social Activities (Prevention) Act, 1986, the A.G.A is granted 3 weeks’ time to file a counter affidavit to the application for suspension of sentence. Applicant-appellant will have 1 week thereafter to file a rejoinder affidavit”, the order reads.

The Court has fixed the next hearing of the petition on July 04, 2023.

A case was registered under the Gangster Act against Ansari and his brother and former UP MLA Mukhtar Ansari after they were booked for their involvement in the kidnapping of Vishwa Hindu Parishad office-bearer Nandkishore Rungta in 1996 and also in the murder of Bharatiya Janata Party MLA Krishnanand Rai in 2005.

Significantly, two days after his conviction, Ansari was disqualified as a Member of the Lok Sabha from the date of his conviction in the case by virtue of provisions contained in article 102 (1) (e) r/w Section 8 (3) of the Representation of the People Act 1951.

However, this disqualification can be reversed in case the High Court grants a stay on his conviction or it goes on to decide the appeal moved against the conviction in favour of Ansari. This is the reason why Ansari has moved a separate application seeking a stay on his conviction.

The Allahabad High Court has stayed the one-and-a-half-year sentence awarded to BJP MP from Bansgaon, Gorakhpur, Kamlesh Paswan by the Sessions Court, Gorakhpur and the court has also approved his bail.

A Single Bench of Justice Rajeev Misra passed this order while hearing a Criminal Appeal filed by Kamlesh Paswan And 6 Others.

The revisionists- applicants has been convicted and sentenced vide judgment and order dated 26.11.2022, passed by the Additional Civil Judge (Civil Division), IInd/ Additional Chief Judicial Magistrate, District- Gorakhpur in Criminal Case under Sections 147, 341, 435, 511 I.P.C and Section 7 of Criminal Law Amendment Act, Police Station- Gulriha, District- Gorakhpur.

Feeling aggrieved by above judgment and order, revisionists applicants preferred an appeal before the Sessions Judge Gorakhpur.

The appeal came to be dismissed vide judgment and order dated 10.04.2023.

However, the court below granted 15 days time to the revisionists-applicants to appear before court below which time period is expiring today i.e 24.04.2023.

The Senior Counsel appearing for revisionists-applicants submitted that revisionists-applicants have been convicted and sentenced under Sections 147, 341, 435, 511 I.P.C and Section 7 of Criminal Law Amendment Act, Police Station- Gulriha, District- Gorakhpur.

They have accordingly been sentenced to one year imprisonment along with fine of Rs 500/- each, under Section 147 I.P.C, one month imprisonment along with fine of Rs 250/- each, under Section 341 I.P.C, one year and six months imprisonment along with fine of Rs 500/- each, under Section 435/511 I.P.C and three months simple imprisonment along with fine of Rs 250/- each, under Section 7 of Criminal Law Amendment Act. In case of default in each of the payment of fine, applicants-revisionists shall undergo 20 days additional imprisonment.

Senior Counsel for revisionists-applicants submitted that the maximum sentence awarded to the revisionists-applicants is one year and six months.

He then submitted that the offence complained of is private in nature and not a crime against the society. There is no likelihood of the revision being heard in the near future.

He further submitted that except for revisionist-applicant-1 Kamlesh Paswan, all other revisionist-applicants have no criminal antecedents to their credit except the present one.

Revisionist-applicant Kamlesh Paswan has one criminal case registered against him which has been duly explained. Referring to the impugned judgment passed by courts below, he submitted that the findings on the basis of which conviction and sentence has been awarded, are neither cogent nor sustainable in the light of the evidence on record.

It is, thus, urged that both the courts below have committed a jurisdictional error in passing the impugned judgments and orders.

He, therefore, submitted that revisionist-applicants be enlarged on bail during the pendency of the present criminal revision. In case, applicant revisionists are enlarged on bail, they shall not misuse the liberty of bail.

Per contra, the AGA has opposed the prayer for bail. He submitted that since revisionists-applicants have been convicted by both the courts below, therefore, they do not deserve any indulgence by this Court. Prima- facie the impugned judgment and order is sustainable in law. However, the AGA could not dislodge the factual/legal submissions urged by the Senior Counsel at this stage with reference to the record.

“Having heard, the Senior counsel for applicants revisionists, the A.G.A for State and upon perusal of material brought on record as well as the complicity of revisionists-applicants, accusation made coupled with the fact that the crime alleged to have been committed by revisionists applicants is private in nature and not a crime against society, the maximum sentence awarded to the revisionists-applicants is one year and six months, there is no likelihood of the revision being heard in near future but without making any comments on the merits of the revision, revisionist-applicants have made out a case for bail.

Let the revisionists-applicants, be released on bail on them furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned”, the Court observed.

Considering the facts that revisionist-applicant-1 Kamlesh Paswan is a sitting M.P. and the judgments and orders impugned in criminal revision, will cast a stigma upon his political career, as such they have serious consequences. The consequences are of unverifiable character, the Court said.

“Considering the above as well as the judgment of the Supreme Court in Navjot Singh Siddhu Vs State of Punjab, 2007 Volume II SCC 574, it is, hereby, provided that the sentence awarded to revisionist-applicant -1 shall remain stayed during the pendency of the revision. It is, however, provided that the fine awarded by court below shall be deposited by each of the applicants-revisionists within one month from today, failing which the applicants-revisionists shall be censured and applicants revisionists shall be taken into custody forthwith to serve out the sentence accorded to them”, the order reads.

The Allahabad High Court has quashed the order passed by the Additional Civil Judge/Judicial Magistrate, Mathura on January 5, 2022, rejecting the protest application due to non-filing of charge sheet in the police report, terming it as illegal.

A Single Bench of Justice Rajeev Misra passed this order while hearing an application under section 482 filed by Madhav Singh.

Challenge in the application under Section 482 CrPC is to the order dated 05.01.2022 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Mathura in Case Crime No 229 of 2019 (State Vs Mahendra Pratap and Others) whereby the protest petition filed by applicant against the police report submitted by Investigating Officer has been rejected as well as the order dated 29.03.2022 passed by First Additional Sessions Judge, Mathura in Criminal Revision No Nil of 2022 (Madhav Singh Vs Bishan Singh and Others) whereby aforementioned criminal revision arising out of the order dated 05.01.2022 has also been dismissed.

The Court noted that,

Record shows that applicant lodged an FIR dated 29.11.2019 which was registered as Case under Sections 420, 467, 468, 469, 471, 167, 168, 120B IPC, Police Station-Magorra, District-Mathura. In the aforesaid FIR, 3 persons namely Mahendra Pratap Singh @ Guddu, Bisan Singh and Pritam Singh have been nominated as named accused.

Investigating Officer upon completion of statutory investigation of concerned case crime number, submitted the police report (charge-sheet) in terms of Section 173(2) CrPC whereby 3 persons namely Mahendra Pratap Singh @ Guddu, Kela Devi @ Kailashi and Ghamandi were charge-sheeted. However, 2 of the named accused namely Bisan Singh and Pritam Singh were exculpated.

Subsequently, applicant filed a protest petition i.e application dated 02.02.2021 (Paper No 5Ba)in the light of the judgement of Supreme Court in Gangadhar Janardan Mhatre Vs State of Maharashtra, (2004) 7 SCC 768 alleging therein that since complicity of 2 of the named accused namely Bisan Singh and Pritam Singh but since exculpated is also established in the crime in question, therefore, they be also summoned to face trial. The protest petition filed by applicant was rejected by court below on the finding that court below does not find it proper to summon named but not charge-sheeted accused.

Counsel for applicant submitted that the order impugned in application is manifestly illegal and without jurisdiction. While exercising jurisdiction under Section 190(1) (b) CrPC, the concerned court is not bound by the opinion expressed by the Investigating Officer.

Once a protest petition is filed by the first informant against the charge-sheet in terms of the judgement of Supreme Court Gangadhar Janardan Mhatre (Supra) then concerned court is duty bound to examine the papers accompanying the police report and thereafter, reach at an own independent conclusion as to whether, the complicity of other named/not named accused/persons is established in the crime or not. At this juncture, the court need not wait for the proceedings at the stage of Section 319 CrPC.

It is thus contended that when the order impugned is examined in the light of the above, the finding recorded by the Magistrate for rejecting the protest petition filed by applicant is not only illegal, erroneous but also perverse. As a result, the order impugned dated 05.01.2022 cannot be sustained and therefore liable to be quashed by the Court.

Per contra, the A.G.A has opposed the application. However, he could not dislodge the factual and legal submissions urged by the counsel for the applicant at this stage.

“Having heard, the counsel for applicant, the A.G.A for State and upon perusal of record, the Court finds that the protest petition filed by applicant against police report (charge sheet) submitted by Investigating Officer under Section 173(2) CrPC has been rejected on a non legal ground. Concerned Magistrate has failed to exercise the jurisdiction vested in him diligently. Impugned orders thus suffer from a jurisdictional error. Resultantly, order impugned cannot be sustained in law and fact and is liable to be quashed”, the Court observed while allowing the application.

“The impugned 05.01.2022 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Mathura, is hereby quashed.

The Additional Civil Judge (Junior Division)/Judicial Magistrate, Mathura shall pass a fresh order in the light of the observations made herein above within a period of 1 month from the date of production of a certified copy of the order”, the Court ordered.

The Allahabad High Court has stayed the proceedings of an ongoing criminal case in the Court of the Additional District and Sessions Judge/Special Judge, POCSO Act, Allahabad on the charge of raping a minor and has sought a reply from the Uttar Pradesh government within three weeks.

A single-judge bench of Justice Rajeev Misra passed this order while hearing an application filed by Yuvraj Yadav.

The application under Section 482 CrPC has been filed challenging the order dated 11.10.2022 passed by Additional District and Sessions Judge/ Special Judge, POCSO Act, Allahabad, arising out of Case under Sections 376, 506, 342 IPC and 3/4 POCSO Act, Police Station Soraon, District Prayagraj, whereby judicial remand of applicant has been extended till 15.10.2022 as well as with a prayer that application dated 15.09.2022 submitted by applicant seeking recall of the order dated 11.10.2022 be decided.

It is submitted by the Senior Counsel for applicant that in the FIR dated 09.08.2022 giving rise to the criminal proceedings, the age of the prosecutrix has been mentioned as 15 years.

Subsequently, the applicant obtained a certificate from the institution which the prosecutrix had attended for the first time. As per said certificate issued by the principal of the concerned institution her date of birth as recorded in school records is 03.03.2002. As such on the date of occurrence, the prosecutrix was aged about 20 years.

It is then argued by the Senior Counsel that in view of above, by no stretch of imagination, offence under Section 3/4 POCSO Act can be said to have been committed by the applicant.

Senior Counsel for the applicant further contends that in the light of aforesaid facts, applicant filed an application dated 15.09.2022 before the court below that applicant be not sent to judicial remand under Section 3/4 POCSO Act as no offence is made out. However, the court below by means of order dated 11.10.2022 rejected the same and sent the applicant for judicial remand up to 15.10.2022.

On the above premise, counsel for applicant submitted that since no offence under Section 3/4 POCSO Act is made out against applicant, therefore, judicial remand extended by concerned Special Court is manifestly illegal and without jurisdiction. Even otherwise, the entire proceedings against the applicant under Section 3/4 POCSO Act cannot be sustained and therefore liable to be quashed by the Court.

Per contra, the AGA and Ajay Kumar Yadav, the counsel for opposite party-2, have opposed this application. However, they could not dislodge the factual and legal submissions urged by Senior Counsel for applicants at this stage.

Having heard the Senior Counsel for applicant, AGA for State, counsel for opposite party-2 and upon perusal of record, the matter requires consideration, the Court observed.

The Court has granted three weeks time to the respondents to file counter-affidavits. “Till 23.02.2023, further proceedings against the applicant in Case under Sections 376, 506, 342 IPC and 3/4 POCSO Act, Police Station-Soraon, District- Prayagraj, shall remain stayed,” the Court ordered.

The Court has fixed the next hearing of the petition on February 23, 2023.

The Allahabad High Court has granted conditional bail to murder accused on the grounds that there was contradiction in medical evidence.

The Single-Judge Bench of Justice Rajeev Misra passed this order, while hearing a Criminal Misc Bail Application filed by Anish alias Mithai.

The application for bail has been filed by applicant Anish@ Mithai seeking his enlargement on bail in Case under Sections 302, 34, 504, 506 IPC, Police Station- Karimuddinpur,, District-Ghazipur, during pendency of trial.

The Court noted that the incident, which is alleged to have occurred on 27.05.2021, a delayed FIR dated 28.05.2021 was lodged by first informant Bansnarayan Yadav (Father of the prosecutrix) and was registered as Case under Sections 34, 307, 504, 506 IPC, Police Station- Karimuddinpur,, District-Ghazipur.

In the FIR, four persons namely Ajeet, Anish @ Mithai (applicant herein), Manish @ Pardeshi and Shashi @ Shashikant have been named as accused.

The gravamen of the allegations made in the FIR is to the effect that a scuffle took place in between first informant and accused. Thereafter, a gun shot was fired by Ajeet, which missed. Subsequently, another gun shot was fired by Anish @ Mithal i.e applicant herein, which hit at the stomach of the injured namely Bansnarayan.

Subsequent to aforesaid FIR, the injured was referred for treatment in a private Hospital. He was discharged from the said Hospital on the same day i.e 10.06.2021. The discharge summary contains a recital that the injury sustained a gunshot injury on the left side of abdomen.

Subsequently, the injured was readmitted to the Hospital on account of certain complaints raised by him but he ultimately died on 08.09.2021.

Perusal of the same goes to show that the deceased has died due to Cardio Respiratory Failure. Subsequently, a post-mortem on the body of the deceased was conducted on 08.09.2021.

In the opinion of the Autopsy Surgeon, the deceased died on account of septicaemia as a result of ante-mortem injury noted above.

After registration of the aforementioned FIR, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter XII Cr.P.C. He examined the first informant and other witnesses under Section 161 CrPC.

On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He, accordingly, submitted the chargesheet dated 12.01.2022 whereby named accused have been charge-sheeted under Sections 302, 34, 504 and 506 IPC.

Counsel for the applicant submitted that the incident giving rise to criminal proceedings occurred on 27.05.2022. However, the deceased died on 08.09.2021. There is a contradiction with regard to the cause of death of the deceased. As per death certificate, the deceased died on account of Cardio Respiratory Failure whereas as per post-mortem report, the deceased died on account of septicaemia as a result of antemortem injury sustained by him.

Drawing a parallel between FIR and medical evidence regarding cause of death of the deceased as noted above, counsel for applicant submits that prima-facie, offence under Section 302 IPC is not established against applicant.

It is lastly contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except one. Applicant has been in jail since 05.07.2021. As such, he has undergone almost one year and four months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with trial. The charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicants is not absolutely necessary during the course of trial. On the cumulative strength of above, she submits that applicant is liable to be enlarged on bail

Per contra, the A.G.A and Munna Kumar Singh, the counsel representing the first informant have opposed the application for bail. They submit that the applicant is a named as well as charge sheet accused. Applicant is guilty of having committed an offence punishable under Section 302 IPC. Therefore, the applicant does not deserve any indulgence by the Court. However, they could not dislodge the factual and legal submissions urged by the counsel for the applicant.

“Having heard the counsel for applicant, the A.G.A for State, the counsel representing first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that the occurrence took place on 27.05.2021 whereas the deceased died on 08.09.2021, there being contradiction in the medical evidence with regard to cause of death of deceased but without expressing any opinion on the merits of the case, applicant has made out a case for bail, at this stage”, the Court observed while allowing the bail application.

The Court ordered that,

Let the applicant- Anish@ Mithai involved in aforesaid case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide by the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

The Allahabad High Court while setting aside the summoning order passed by Civil Judge (J.D.)( FTC II) District Kaushambi, in Complaint Case stated that, while summoning an accused, the Court has to see prima facie evidence.

A Single Bench of Justice Rajeev Misra passed this order while hearing an application filed by Shiv Lal and 5 others.

Challenge in the application under section 482 CrPC is to the summoning order dated 22.08.2022 passed by Civil Judge (J.D.)( FTC II) District Kaushambi, in Complaint Case under sections 452, 323 IPC, P.S‐ Charwa, District Kaushambi now pending in the Court of Civil Judge (J.D.)( FTC II) District Kaushambi.

Counsel for the applicants invited attention of the Court to the summoning order dated 22.08.2022 .

He submitted that the order impugned in present application is wholly arbitrary and therefore liable to be set aside by the Court.

Elaborating his submission, Counsel for the applicant submitted that the Court below has simply recorded a conclusion that on the basis of the complaint, the statement of the complainant and his witnesses, prima facie an offence under sections 452, 323 IPC appears to have been committed. The said conclusion recorded by the Court below is not preceded by a discussion of the allegations made in the complaint or the statement of the complainant and his witnesses as recorded under sections 200 and 202 CrPC.

He, therefore, submitted that in absence of any finding recorded by the Court below, on the basis of the averments made in the complaint, the statement of the complainant and that of the witnesses, no prima facie satisfaction was recorded by the Court below for summoning the applicant under section 452, 323 IPC.

Hence, same is liable to be quashed by the Court.

The Court relied upon the case of Hariram Verma and 4 Others Vs The state of U.P and Anohter, where it was observed that “It is settled principle that while summoning an accused, the Court has to see prima facie evidence. The ”prima facie evidence’ means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not.”

“In the light of the judgements referred to above, it is explicitly clear that the summoning order passed by Court below is cryptic and does not stand the test laid down by the Court”, the Court further observed while allowing the application.

“The summoning order dated 22.08.2022 passed by Civil Judge (J.D.)( FTC II) District Kaushambi, in Complaint Case under sections 452, 323 IPC, P.S‐ Charwa, District Kaushambi now pending in the Court of Civil Judge (J.D.)( FTC II) District Kaushambi is set aside.

The Civil Judge (J.D.)( FTC II) District Kaushambi, shall pass a fresh order in the light of the observations made herein above”, the Court ordered.

The Allahabad High Court has observed that once a court has rejected the final report submitted by the police, it cannot take cognisance on the same.

The Single Bench of Justice Rajeev Misra observed that the Additional Sessions Judge/Special Judge (POCSO) Act, Bijnor should have disapproved (Aswikar) the report. This having not been done, the impugned order was illegal, perverse and unsustainable in law, it added.

The High Court passed the order on a petition filed by Shahid and three others.

The challenge in this application under Section 482 CrPC was to the order dated 2.4.2022, passed by the court below in FIR’s Case under Sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO), Bijnor.

The Court observed, “Record shows that in respect of an incident which is alleged to have occurred on 26.5.2018, a delayed FIR dated 6.6.2019 was lodged by first informant/opposite party-2 Rifaqat and was registered as Case under sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor.”

It noted that in the aforesaid FIR five persons namely, Shahnawaz @ Shanu, Shahid, Rashid, Shawqat and Aslam have been nominated as named accused.After lodging the aforementioned FIR, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter XII CrPC.

The High Court was apprised that the IO examined the first informant and other witnesses under Section 161 CrPC. The prosecutrix was also medically examined. However, no sign was found on her body by the Doctor to conclude commission of sexual assault. Subsequently, the statement of the prosecutrix under section 164 CrPC was also recorded.

On the basis of above and other material collected by the IO during the course of investigation, he came to the conclusion that offence as complained of is not established. He submitted the Police report on November 10, 2021 (Final report).

The first informant/opposite party-2 then filed a protest petition on March 31, 2022.

Additional District and Sessions Judge/Special Judge (POCSO), Bijnor, proceeded to consider the Police report so submitted in the light of protest petition filed by first informant/opposite party-2, noted the High Court.

Ultimately, by means of order dated 2.4.2022 , Additional District and Sessions Judge/Special Judge (POCSO), Bijnor rejected the final report and simultaneously took cognizance in exercise of his jurisdiction under section 190 (1) (b) CrPC.

Counsel Mithilesh Tiwari contended that once the Police report under Section 173 (2) CrPC was itself rejected by the court below, then there was no report before the court to take cognizance on.

Remedy for the Court below was to disapprove the Police report (aswikar) and thereafter take cognizance upon the same. The Counsel further referred to the judgement of the Court in Application under Section 482 No 14899 of 2022 (Dabeer and Others vs State of UP).

It was next contended that the FIR giving rise to the criminal proceedings has been lodged with delay of more than one year from the date of occurrence, which was May 26, 2018.

Placing reliance upon the judgement of Supreme Court in P Rajagopal Vs State of Tamilnadu, AIR 2019 SC 2866, he contends that since delay in lodging the FIR itself has not been explained by prosecution either in the FIR or in the statement recorded under section 161 CrPC, the proceedings cannot be maintained. This aspect of the matter has been clearly ignored while considering the protest petition/final report, added the Counsel.

Per contra, the AGA opposed the application, submitting that from the material on record, it cannot be said that there is no evidence against applicants in the papers accompanying the Police report.

As such, no illegality has been committed by the court below in taking cognizance upon police report in exercise of jurisdiction under section 190 (1)(b) CrPC. However, the AGA could not dislodge the legal submissions urged by the counsel for the applicant.

“Having heard the counsel for applicants, the A.G.A for State and upon perusal of record, the Court found that once Court below rejected the police report (final report) then Court below could not have taken cognizance upon aforesaid Police report. The course of action open to Court below was to disapprove (Aswikar) the report. This having not been done, the Impugned order is illegal perverse and unsustainable in law.

In view of above, the application succeeds and is liable to be allowed”, the Court observed while allowing the application.

“Impugned summoning order dated 2.4.2022, passed by Additional Sessions Judge/Special Judge (POCSO) Act, Bijnor in FIR Case No 1319 of 2021 (Rifaqat Vs Shahnawaz @ Shanu and Others), under sections 452, 376, 120 B IPC and Sections 3/7 POCSO Act, Police Station – Afzal Garh, District Bijnor, arising out of Case Crime No 0151 of 2019 (State Vs Shehnawaz and Others), under sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO), Bijnor is hereby quashed”, the Court ordered. 

The Allahabad High Court has set aside an order passed by the Additional Sessions Judge/Special Judge (POCSO) Act Bijnor, stating that once a lower court has rejected the final report submitted by police, the same court cannot take cognisance on the report.

The Single-Judge Bench of Justice Rajeev Misra observed that the court should have disapproved the report. This having not been done, the impugned order was illegal, perverse and unsustainable in law, the High Court ruled.

The Single-Judge Bench passed the order on a petition filed by Shahid and three others.

Challenge in this application under Section 482 CrPC is to the order dated 2.4.2022, passed by Additional Sessions Judge/Special Judge (POCSO) Act, Bijnor in FIR’s Case under Sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO), Bijnor.

The Court observed, “Record shows that in respect of an incident which is alleged to have occurred on 26.5.2018, a delayed FIR dated 6.6.2019 was lodged by first informant/opposite party-2 Rifaqat and was registered as Case under sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor.”

It noted that in the aforesaid FIR, five persons namely, Shahnawaz @ Shanu, Shahid, Rashid, Shawqat and Aslam have been nominated as named accused.After lodging the aforementioned FIR, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of Chapter XII CrPC.

The IO examined the first informant and other witnesses under section 161 CrPC. The prosecutrix was also medically examined. However, no sign was found on her body by the Doctor to conclude commission of sexual assault, observed the court.

It said subsequently, the statement of the prosecutrix under Section 164 CrPC was also recorded. However, on the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that offence as complained of is not established. The Investigating Officer submitted a final report on November 10, 2021.

The court noted that the first informant/ opposite party-2 filed a protest petition on March 31, 2022.

The Additional District and Sessions Judge/Special Judge (POCSO), Bijnor, proceeded to consider the Police report so submitted in the light of protest petition filed by first informant/opposite party-2, it added.

Ultimately, by means of order dated 2.4.2022 , Additional District and Sessions Judge/Special Judge (POCSO), Bijnor rejected the final report and simultaneously took cognizance in exercise of his jurisdiction under section 190 (1) (b) CrPC.

Counsel Mithilesh Tiwari contended that once the Police report under Section 173 (2) CrPC was itself rejected by the Court of Sessions Judge/Special Judge (POCSO) Act Bijnor, then there was no police report before it on which the lower court could have taken cognizance.

Remedy for the Sessions Judge was to disapprove the Police report (aswikar) and thereafter take cognizance upon the same. The Counsel also referred to the judgement of the court in Application U/S 482 No 14899 of 2022 (Dabeer and Others Vs. State of U.P).

He contended that the FIR giving rise to the criminal proceedings has been lodged with delay of more than one year from the date of occurrence i.e 26.5.2018.

Placing reliance upon the judgement of Supreme Court in P Rajagopal Vs State of Tamilnadu, AIR 2019 SC 2866, he contends that since delay in lodging the FIR itself has not been explained by prosecution either in the FIR or in the statement recorded under section 161 CrPC, the proceedings cannot be maintained. This aspect of the matter has been clearly ignored while considering the protest petition/final report.

Per contra, the AGA has opposed the application. He submitted that from the material on record, it cannot be said that there is no evidence against applicants in the papers accompanying the Police report. As such, no illegality has been committed by Court below in taking cognizance upon police report in exercise of jurisdiction under section 190 (1)(b) CrPC. However, AGA could not dislodge the legal submissions urged by the counsel for the applicant.

“Having heard the counsel for applicants, the A.G.A for State and upon perusal of record, the Court found that once Court below rejected the police report (final report) then Court below could not have taken cognizance upon aforesaid Police report. The course of action open to Court below was to disapprove (Aswikar) the report. This having not been done, the Impugned order is illegal perverse and unsustainable in law.

In view of above, the application succeeds and is liable to be allowed”, the High Court observed, while allowing the application.

“Impugned summoning order dated 2.4.2022, passed by Additional Sessions Judge/Special Judge (POCSO) Act, Bijnor in FIR Case No 1319 of 2021 (Rifaqat Vs Shahnawaz @ Shanu and Others), under sections 452, 376, 120 B IPC and Sections 3/7 POCSO Act, Police Station – Afzal Garh, District Bijnor, arising out of Case Crime No 0151 of 2019 (State Vs Shehnawaz and Others), under sections 452, 376, 120B 506 IPC, and Sections 7/8 POCSO Act, Police Station – Afzalgarh, District Bijnor now pending in the Court of Additional District and Sessions Judge/Special Judge (POCSO), Bijnor is hereby quashed”, the Court ordered.