Allahabad High Court
Hori Lal Patel vs State Of U.P. And Another on 27 July, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:154495
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 42863 of 2024
Hori Lal Patel
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Girish Pandey, Manoj Kumar
Counsel for Opposite Party(s)
:
G.A.
Court No. - 81
HON'BLE MADAN PAL SINGH, J.
1. Rejoinder affidavit filed on behalf of the applicant in the Court today is taken on record.
2. Heard learned counsel for the applicant and the learned A.G.A. for the State.
3. This application under Section 528 B.N.S.S. has been filed with a prayer to quash the charge-sheet dated 5th December, 2020, cognizance/summoning order dated 4th February, 2022 as well as the entire proceedings of the Criminal Case No. 171 of 2022 (State Vs. Hori Lal Patel), arising out of Case Crime No. 617 of 2020, under Section 41 Cr.P.C. and Section 411 I.P.C., Police Station-Ghoorpur, District-Prayagraj, pending in the Court of Judicial Magistrate, Court No.3, Allahabad.
4. Learned counsel for the applicant submits that no first information report can be registered or lodged under Section 41 Cr.P.C. as there no provision therein. Similarly, when as per the statement of learned A.G.A. for the State that no first information report was lodged under Section 379 I.P.C. in respect of alleged stolen electric transformer, then without lodging a first information report under Section 397 I.P.C. for any stolen property, no first information report can be registered under Section 411 I.P.C. He further submits that though the Investigation Officer claimed that the electric transformer has been recovered from the accused-applicant on an information given by an informer (Mukhbir), but in the entire case diary, the Investigating Officer has not pointed out or disclosed the exact owner of the said electric transformer. It is then submitted that on the information given by an informer the applicant was intercepted by the Police and the stolen electric transformer is alleged to have been recovered from the applicant and on the basis of his confessional statement, the present first information report has been lodged against the applicant under Section 41 Cr.P.C. and Section 411 I.P.C. The owner of the alleged stolen transformer i.e. Electricity Department has not come forward to lodged any report in that regard. For releasing of the alleged stolen transformer, no one has cropped up before the trial court. It is also stated that not only the Investigating Officer has committed gross error in submitting the charge-sheet but also the trial court has done the same. Though the first information report has been lodged under Section 41 Cr.P.C. and Section 411 I.P.C., whereas the trial court has taken cognizance against the applicant under Sections 41 and 411 I.P.C.
5. On the above premise, learned counsel for the applicant submits that since not only the impugned charge-sheet but also the entire proceedings of the aforesaid criminal case are illegal, therefore, the same are liable to be set aside.
6. On the other-hand, learned A.G.A. could not dispute the above submission made by the learned counsel for the applicant.
7. On 1st December, 2026, a Coordinate Bench of this Court passed following order:
“1. Heard Shri Manoj Kumar, learned counsel for the applicant and learned AGA for the State.
2. Learned counsel for the applicant submits that he has filed the present application under Section 482 CrPC for the following prayer, which has been mentioned in the prayer clause of this application. The prayer clause is delineated below:-
?It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow this application and quash the charge sheet dated 05.12.2020, cognizance and summoning order dated 04.02.2022 passed by the Judicial Magistrate, Court No.3, Allahabad as well as entire proceedings of Case No.171 of 2022 (State Versus Hori Lal Patel) arising out of Case Crime No.617 of 2020, Under Section 41 Cr.P.C. and Section 411 I.P.C. relating to Police Station Ghoorpur, District Prayagraj, pending in the Court of Judicial Magistrate, Court No.3, Allahabad.?
3. The learned counsel for the applicant submits that there is no provision under the CrPC for lodging an FIR under Section 41 of the Code of Criminal Procedure, 1973 and without lodging an FIR under Section 379 IPC for the stolen property, no FIR can be registered under Section 411 IPC. Further, learned counsel for the applicant submits that though the police is alleging that the electric transformer has been recovered from the accused/applicant on the information of the Mukhbir, yet the owner of that very transformer has not been disclosed by the police.
4. This Court, after perusing the entire records of the case as provided by the learned counsel for the applicant treating it appropriate to direct the concerned S.H.O. as well as the Circle Officer, on whose instance, after his verification of the entire material collected by the Investigating Officer, the charge-sheet/ police report has been submitted in the concerned trial court. In the Code of Criminal Procedure, for the fair investigation, procedure has been made at every stage so that any person may not be harassed in a case of faulty investigation and ultimately acquittal on technical ground. And if the investigation is done by the police/ State against the provision of law, it will be treated as violation of fundamental right of a person provided under Article 21 of the Constitution of India, i.e. “No person shall be deprived of his life or personal liberty, except according to procedure established by law”.
5. The Station House Officer, Police Station Ghoorpur, District Prayagraj and Circle Officer/Assistant Commissioner of Police of the area concerned shall appear before this Court along with the entire Case Diary to apprise this Court that the accused has been intercepted by the police on the information of Mukhbir (the identity of the witness cannot be disclosed at any cost at any stage of proceedings as per Section 125 of the Evidence Act, 1972) and on the basis of confessional statement, the First Information Report has been lodged under Section 41 of CrPC as well as Section 411 IPC and as per the statement of the learned AGA, no FIR was registered under Section 379 IPC in respect of the alleged stolen property. The provision of Section 379 IPC (corresponding Section 303 B.N.S.) is delineated below :-
?379 IPC. Punishment of theft.- Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.?
6. In every case, above the Investigating Officer, there is one Circle Officer/ Deputy Superintendent of Police or any higher officer to see the records/ material collected by the Investigating Officer, before submitting the police report before the trial court concerned for taking cognizance and in this case, no FIR has been registered under Section 379 IPC in respect of stolen property, nor name of the owner of the alleged property, i.e., transformer belongs to him, has been disclosed, nor any person is claiming under Section 457 of the Code of Criminal Procedure for releasing the alleged item from the court concerned.
7. In this case, FIR was lodged under Section 41 CrPC and Section 411 IPC and charge-sheet was submitted in the same Sections i.e. Sections 41 CrPC & 411 IPC but the learned Magistrate took cognizance under Sections 41 IPC and 411 of IPC rather than 41 CrPC, which is against the provision of law. The provisions of Section 41 CrPC (corresponding Section 35 B.N.S.S.), Section 41 I.P.C. (corresponding Section 2(30) B.N.S.) and Section 411 IPC (corresponding Section 317(2) B.N.S.) are delineated below :-
?41 CrPC. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
(a) who commits, in the presence of a police office, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i) the police has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary –
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reason in writing;
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment far a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule, made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]?
?41 IPC. ?Special Law?.- A ?special law? is a law applicable to a particular subject.?
?411 IPC. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extended to three years, or with fine, or with both.?
8. In view of the above facts, the Station House Officer, the Circle Officer, as well as the Deputy Commissioner of Police of the concerned area, shall go through the entire record and the Circle Officer along with Station House Officer shall appear before this Court on 08 December 2025.
9. In the meantime, the concerned trial court shall also furnish his explanation as to whether cognizance can be taken under Section 41 IPC or not. For ready reference of the concerned trial court/ Magistrate, the first and second page of the FIR, the first page of charge-sheet dated 05.12.2020 bearing cognizance order dated 04.02.2022 “??????? ???? ???, ???? ??????? ??” and cognizance order dated 04.02.2022 are pasted herein below for submitting proper reply from the then Judicial Magistrate, Court No. 3, Allahabad and the present trial court of Magistrate in respect of the current status of the trial court proceedings :-
10. Put up this case as fresh on 08.12.2025.
11. Registrar (Compliance) shall obtain report from the concerned Judicial Magistrate as well as the present Presiding Officer and place the same before this Court.
12. Shri Pankaj Tripathi, learned AGA for the State is directed to inform to the Government Advocate, High Court, Allahabad to communicate this order to the Commissioner of Police, Prayagraj, Deputy Commissioner of Police, Yamuna Nagar, Assistant Commissioner of Police of area Ghoorpur, Station House Office of Police Station- Ghoorpur to prepare instructions, forthwith and place the same before this Court.
13. Registrar (Compliance) shall also seek instructions in this regard from the authorities concerned through C.J.M., Allahabad/Prayagraj.”
8. On 8th December, 2025, the same Coordinate Bench of this Court has required the concerned trial court to submit its explanation as to when the charge-sheet has been submitted under Section 41 Cr.P.C. and Section 411 I.P.C., then in what circumstances, the trial court has taken cognizance under Sections 41 and 411 I.P.C.
9. Pursuant to the order dated 1st December, 2026, the State House Officer, Ghoorpur, namely, Dinesh Singh has filed his affidavit, wherein he has stated that the Investigating Officer has committed illegality in the submitting the charge-sheet and therefore, he has written a letter to the Deputy Commissioner of Police, Yamuna Par, Prayagraj Commissionerate, Prayagraj for preliminary inquiry into the matter against him. He also submits that after preliminary inquiry, suitable order shall be passed against the erring official Sub Inspector Bhupendra Singh, who has investigated the case and submitted the charge-sheet against the applicant. The Circle Officer/Assistant Commissioner of Police, Kaundhiyara, Prayagraj has also filed his affidavit wherein same averments have been made. The relevant paragraphs of both the affidavits are quoted here-under:
“9.That the investigating officer did not recover the transfer from any F.I.R. under section 379 I.P.C. he did not collected any information with regard to the ownership of the recovered electric transformer he did not any evidence with
regard to the Vehicle Pick-up and as such he did not properly investigated the matter and after considering all these facts this Hon’ble Court has been taken cognizance of the illegality committed by the investigating officer and as such deponent has written a letter on 06.12.2025 to D.C.P Yamunapar Commissionerate Prayagraj on 06 12.2025 for preliminary enquiry into the matter committed by the investigating officer Sub Inspector Sri Bhupendra Singh is in progress.
10. That after report of preliminary enquiry suitable order will be passed against the erring official Sub Inspector Sri Bhependra Singh PNO No.0152034335 of Police Station Ghoorpur Commissionerate District Prayagraj.”
6. I have considered the facts and circumstances of the case, the submission made by the learned counsel for the applicant and the learned A.G.A. and perused the material available on recording including the impugned order framing charges against the applicant.
7. Bare perusal of the affidavits filed by the Station House Officer, Ghoorpur Police Station, Prayagraj and Assistant Commissioner of Police, Kaundhiyara, Prayagraj reveal that they have admitted that the Investigating Officer has committed gross error in submitting the charge-sheet against the applicant as no evidence has been collected by him against the applicant during the course of investigation and an inquiry has also been directed to initiated against him for his committing the said error.
8. Under such circumstances, this Court holds that since the the charge-sheet dated 5th December, 2020, cognizance/summoning order dated 4th February, 2022 as well as the entire proceedings of the Criminal Case No. 171 of 2022 (State Vs. Hori Lal Patel), arising out of Case Crime No. 617 of 2020, under Section 41 Cr.P.C. and Section 411 I.P.C., Police Station-Ghoorpur, District-Prayagraj, pending in the Court of Judicial Magistrate, Court No.3, Allahabad cannot be legally sustained, therefore, the same are, hereby, quashed.
10. The present application is allowed.
(Madan Pal Singh,J.)
July 27, 2026
Sushil/-
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