Allahabad High Court
Ashraf Siddiqui vs State Of U.P. And Another on 16 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. – 2024:AHC:7433
Court No. – 80
Case :- APPLICATION U/S 482 No. – 46143 of 2023
Applicant :- Ashraf Siddiqui
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Jeeshan Ahmad Siddiqui,Kanhaiya Lal,Mohammed Iftekhar
Counsel for Opposite Party :- G.A.,Mohammad Sadab Khan
Hon’ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the applicant, learned counsel for the respondent No.2, learned AGA for the State and perused the material placed on record.
2. The present 482 Cr.P.C. application has been filed against the order dated 20.7.2023, passed by Additional District Judge, Court No.22, Allahabad in Criminal Revision No.318 of 2021 (Abdul Mannan and others vs. State of UP and others) arising out of Case Crime No.0279 of 2019, under Sections 498-A, 323, 504, 506, 406, 354 IPC and Section 3/4 of DP Act, Police Station Mahila Thana, District Prayagraj as well as entire consequential proceeding of present case.
3. The brief facts leading to filing of present application are that the respondent No.2 is sister-in-law (wife of brother-in-law) of the applicant. She had lodged an FIR against her husband Javed Akhtar, father-in-law Abdul Mannan, brother-in-law (devar), sister-in-law (nanad), brother-in-law (nandoi), who is applicant herein, on 1.7.2019 at 17:10 hours, under aforesaid sections with averment that her marriage was solemnized with accused Javed Akhter on 3.10.2004, in which her parents had given sufficient gifts, cash and valuables to her husband and in-laws. However, they were not satisfied with the dowry given in the marriage and they started demanding a Scorpio Car after marriage and due to non-fulfillment of demand of additional dowry, they subjected the informant to matrimonial cruelty and torture. Her brother-in-law (devar) Taushif and Nandoi Ashraf, the present applicant would often held her hand with obscene intention and speak obscene things to her and when she complained this to her husband and parents-in-law, they would not paid any heed to this. On 23.9.2009, she gave birth to a son. She was ultimately kicked out from her matrimonial house on 10.2.2019 and she shifted to her parental place on 3.6.2019, at 3:50 PM, the accused persons visited her parental place by a car and they again revived their demand of dowry and when the informant opposed this, they created a scene at her parental place. They have her beating by pulling her hair and dashing her on ground, in which she suffered injuries. They also assaulted her with wiper. The matter was referred to District Court Mediation Center, as dispute related to matrimonial discord. The accused persons including present applicant moved an application for anticipatory bail under Section 438 Cr.P.C., which was allowed during pendency of mediation. However, this is admitted fact that the applicant did not file any bail bond before the Investigating Officer pursuant to the order of anticipatory bail.
4. Learned counsel for the applicant submitted that the marriage of Javed Akhtar and respondent No.2 was solemnized according to Muslim rites and rituals on 3.10.2014 and since then, both were leading a peaceful and happy married life and a male child namely, Mohd. Shah was born on 23.9.2009 out of their wedlock. An FIR was lodged at the instance of Smt. Sayma Dau, (respondent No.2), on 1.7.2019, under Sections 498-A, 323, 504, 506, 406, 354 IPC and Section 3/4 of DP Act against her husband, father-in-law, devar- Tausif, Nanad- Afsana Bano and Nandoi Ashraf Siddiqui- present applicant, in which allegations of misbehave and molestation are levelled against the applicant and Tausif (devar), only with a view to give a color to FIR version. This is the second application under Section 482 Cr.P.C. filed by the applicant before this Court challenging the validity of the impugned order dated 20.7.2023, passed in Criminal Revision No.318 of 2021, (Dr. Abdul Mannan and others vs. State of UP and others), which is perverse and illegality and is liable to be set aside. The earlier application filed under Section 482 Cr.P.C. was withdrawn by the applicant with permission of the court on 15.9.2023 with liberty to file fresh one. The co-accused Dr. Abdul Mannan and Afsana Bano had filed a Criminal Revision No.318 of 2021, under Section 397/399 Cr.P.C. before the Court of Session against cognizance and summoning order passed in Criminal Case No.95 of 2021 (State vs. Javed Akhtar and others). An application 16-kha was moved by the applicant in said criminal revision with averment that the applicant is posted as a clerk in North Central Railway and he was posted as such during 11.4.1991 to 31.12.2021. The Investigating Officer has filed chargehseet against the applicant also without any proper inquiry and without taking sanction from Central Government or authorized officer for the purpose under Section 197 Cr.P.C. The cognizance of the alleged offence was barred in respect of the applicant for want of sanction as he was a Central Government Employee during the period when offence is said to have committed. The application was opposed by opposite party No.2, the complainant, and learned court below has dismissed the application by impugned order dated 20.7.2023 without taking consideration the grounds taken therein in legal and proper manner. No specific role has been assigned to the applicant in alleged offence. Ambiguous allegations have been made against the applicant alongwith co-accused persons. There is no specific averment in FIR as to when the applicant misbehaved with the complainant as alleged therein. The investigation has been carried out in perfunctory and biased manner. The continuation of proceeding against the applicant, who is brother-in-law (nandoi) of the complainant is nothing but abuse of process of law.
5. Per contra, learned AGA as well as learned counsel for the opposite party No.2 opposed the prayer made in present application under Section 482 Cr.P.C. and submitted that the applicant had wrongly moved the application -16(kha) for setting aside the cognizance taking and summoning order in respect of the applicant, passed by the court below, in criminal revision pending before the court of session. Learned Additional Session Judge has dismissed the application with reasoned order and has cited explanation of Section 197(b) Cr.P.C. There is no illegality in impugned order passed by the learned court below and the matter does not require interference of this Court under inherent jurisdiction of this Court under Section 482 Cr.P.C.
6. Instant application has been filed against the cognizance order dated 25.6.2021, passed by Additional District Judge, Court No.22, Allahabad in Criminal Revision No.318 of 2021 (Abdul Mannan and others vs. State of UP and others), whereby the application 16-kha, moved by the applicant in said criminal revision for setting aside the cognizance taking and summoning order in respect of him by learned trial court, mainly on the ground that the cognizance was barred under Section 197 Cr.P.C.
7. The applicant is brother-in-law (nandoi) of the complainant/opposite party No.2, herein. In FIR as well as in statement under Section 161 as well as 164 Cr.P.C., the complainant has levelled allegations of misbehavior and molestation against the applicant and one Taushif, who is her devar. However, general allegations are made against both of them, without further specification.
8. Section 197 Cr.P.C. provides as under:-
“197. 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 officer 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-
(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:
[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.] [Added by Act 43 of 1991, Section 2 (w.e.f. 2-5-1991).]
[Explanation. – For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB,] [Inserted by Criminal Law (Amendment) Act, 2013 ] or section 509 of the Indian Penal Code.] [Inserted by Act 63 of 1980, Section 3 (w.e.f. 23.9.1980).]
(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.[(3-A) 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.(3-B) 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.] [Added by Act 43 of 1991, Section 2 (w.e.f. 2-5-1991).]
(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, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”
9. Hon’ble Apex Court in Rajib Ranjan and others vs. R. Vijay Kumar (2015) 1 SCC 513, held that if any offence is alleged to have been committed by a public servant who cannot be removed from the office except by or with the sanction of the Government, the Court is precluded from taking cognizance of such offence except with the previous sanction of the competent authority specified in this provision. Sub-section 1 of Section 197 Cr.P.C. provides that previous sanction for prosecution will be required where a public servant not removable from his office save by or with the sanction of the Government is accused of any ofence alleged to have been committed by him “while acting or purporting to act in the discharge of his official duty”.
10. In the present case, it cannot be said that the alleged act was committed by the applicant in discharge of his official duty. There is no nexus between the official duty of the applicant as clerk in Central Government Establishment like Railway and the alleged criminal act attributed to him by the complainant. Therefore, it cannot be said that the alleged act is committed in discharge of official duty. For application of Section 197 Cr.P.C., it is necessary to show that what the applicant/accused had done, was committed by virtue of his official position.
11. Explanation to Section 197 Cr.P.C. makes it clear that no sanction will be required in a case of public servant, accused of an offence alleged to have been committed under sections 354, section 354A, section 354B, section 354C and section 354D and in present case, the court below has taken cognizance of offence under Section 354 IPC alongwith other penal sections, which are not covered in said explanation. Therefore, in view of this explanation also, the cognizance of the offence taken by the trial court against the applicant is not barred for want of sanction envisaged under Section 197 Cr.P.C. I find no illegality, irregularity or abuse of process of law in said proceeding. The impugned order is well reasoned and lawful and no interference is warranted therein in present petition, wherein inherent jurisdiction of this court is invoked by the applicant. Present application is devoid of merits and is liable to be dismissed.
12. Accordingly, present application stands dismissed.
13. However, the observations made herein are confined to impugned order dated 20.7.2023, passed by Additional District Judge, Court No.22, Allahabad in Criminal Revision No.318 of 2021 (Abdul Mannan and others vs. State of UP and others) and will have not bearing on the merits of said criminal revision or the case pending before the trial court.
Order Date :- 16.1.2024
Kamarjahan
