Decided on November 21,2013

Mohd. Ali And Others Appellant
State of Uttarakhand and another Respondents


U.C. Dhyani, J. - (1.) The applicants, by means of present Application under Section 482 Cr.P.C., seek to quash the charge-sheet dated 10.02.2010 as well as the summoning order dated 19.02.2010 passed by the Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar in Criminal Case No. 532 of 2010 titled as State v. Mohd. Arif and others , under Sections 153A and 500 IPC. The applicants also seek to quash the proceedings of the aforementioned criminal case pending before the said court.
(2.) An FIR was lodged by respondent no.2 (Haji Mohd. Rais) against 7 accused persons (applicants herein) on 08.01.2010, which was registered as case crime no.23/2010 at Police Station Kashipur, District Udham Singh Nagar for the offences punishable under Sections 153A & 500 IPC. After the investigation, a charge-sheet was submitted against the accused-applicants for the selfsame offences. The cognizance was taken by the Additional Chief Judicial Magistrate, Kashipur, vide order dated 19.02.2010 and accused-applicants were summoned to face the trial. Aggrieved against the same, present application under Section 482 Cr.P.C. was filed by the accused-applicants.
(3.) According to FIR, the informant and his society were engaged in the task of upliftment of the members of his community. Some anti-social elements were inimical to the informant and his society. They were trying to create enmity between different groups of the society. On 08.01.2010, they distributed obscene pamphlets with a view to malign Muslim Cheepi Siddiqui Society. The members of the community suspected the involvement of Mohd. Arif @ Naita, Mohd. Khalid Cylinder-Wale, Intkhar Hussain @ Badde, Musharaf Hussain @ Harry, Mohd. Ali s/o Hazi Usman, Mohd. Hanif @ Guddu Cycle-Wale and Badruddin s/o Shamshiddin. The owner of the printing press, who published those pamphlets, was also responsible for the same. A copy of the pamphlet is enclosed as Annexure-1 to the counter affidavit filed on behalf of the respondent State. Mohd. Yameen s/o Ahmad Vaksh stated under Section 161 Cr.P.C. that he saw Intkhar Hussain @ Badde (applicant no.3 herein) and Badruddin (applicant no.7 herein) distributing such pamphlets. Mohd. Yameen stated that Intkhar Hussain @ Badde and Badruddin were riding on motorcycle and throwing pamphlets. He saw the same on 08.01.2000. One such pamphlet was thrown in the house of Rais, Thekedar. None of the other witnesses said anything against other accused-applicants, except the fact that suspicion was cast upon the rest of the accused persons that they were behind such anti-social activities. The suspicion cannot partake the place of proof. Presuming that Intkhar Hussain @ Badde and Badruddin were throwing pamphlets as was told to Investigating Officer by witness Mohd. Yameen, there was no material against other accused persons-applicants to indict them for the offences complained of against them. The name of the printing press, where the said pamphlets were published, did not come to the fore. Presuming further that Intkhar Hussain @ Badde and Badruddin did what Mohd. Yameen said, the ingredients of Section 153A IPC were not made out against them (Intkhar Hussain @ Badde and Badruddin). The foundation of offence under Section 500 IPC is, however, laid against applicants no.3 and 7 (Intkhar Hussain @ Badde and Badruddin) only. No offence was made out against remaining applicants.;

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