Vivek Bharti Sharma, J
1. By means of present writ petition, petitioners seek to quash the order dated 08.09.2008 passed by Chief Judicial Magistrate, Haridwar in Criminal Case No.4761 of 2017 as well as proceedings of Criminal Case No.4761 of 2017 “State vs. Sageer and others” pending in the court of Chief Judicial Magistrate, Haridwar, District Haridwar.
2. Heard on admission.
3. Learned counsel for the petitioners/accused would submit that FIR/case crime No.619 of 2006 (Annexure-3) dated 21.12.2006 was lodged against 18 named and 30-40 unknown persons including Baby w/o Late Saleem and Rehman S/o Akhtar u/s 147, 148, 332, 353, 307, 336, 504 and 506 of IPC and Section 7 of Criminal Law Amendment Act at Police Station Jwalapur, District Haridwar; that, thereafter charge sheet dated 12.02.2008 (Annexure-4) was filed under the same sections against 14 persons including above two named persons; that, the learned C.J.M. Haridwar, vide order dated 03.09.2008, took cognizance against all the 14 persons u/s 147, 148, 332, 353, 307, 336, 504 and 506 of IPC and Section 7 of Criminal Law Amendment Act.
4. He would further submit that the petitioners were harassed by the police as the police wanted to arrest the petitioners in this case notwithstanding the fact that the petitioners did not have any role in commission of crime as alleged in the FIR and the charge sheet.
5. Learned counsel for the petitioners would further submit that this is a case of mistaken identity as petitioners are not specifically named in the FIR. However, the prosecution alleges that petitioner no.1 Kaneej Fatima is none other but Baby w/o Late Saleem and the petitioner no.2 Abdur Rehman is none other but Rehman S/o Akhtar.
6. He would further submit that he has brought on record ration card, Adhar card and voter ID of petitioner no.1 (Annexure-1) which clearly indicates the name of petitioner no.1 as Kaneej Fatima as stated in the writ petition and not Baby w/o Late Saleem as alleged by the prosecution. Similarly, for petitioner no.2 his voter ID and PAN card has been filed which is also part of Annexure-1 to show that the name of father of petitioner no.2 Abdur Rehman is Asgar Ali and not Akhtar. He would further submit that there is not an iota of doubt that petitioner no.1 Kaneej Fatima is not Baby W/o Saleem and petitioner no.2 Abdur Rehman S/o Asgar Ali is not Rehman S/o Akhtar.
7. He would further submit that the petitioner no.1 is a renowned person and a sitting counsellor also and thus it cannot be believed that police do not know her name.
8. Learned Additional Advocate General, per contra, would submit that the criminal case set into motion when the police party got the information that the dreaded criminal Nazim, who happens to be real brother-in-law (devar) of petitioner no1, was harboring criminals and the police party went to raid the house of Nazim, then Nazim and his family members and associates as named in the FIR attacked the police party. He would further submit that in the FIR itself petitioners were specifically named by their aliases/nick names by which they were popularly known in the society i.e. Baby w/o Late Saleem and Rehman s/o Akhtar.
9. Learned State counsel would further submit that this is not a case of mistaken identity rather the petitioners are misusing their real names for getting the criminal proceedings quashed notwithstanding the fact that Kaneej Fatima w/o Late Saleem and Baby w/o Saleem is one and the same person. Likewise, Abdur Rehman i.e. the petitioner no.2 is none other but Rehman S/o Akhtar, named in the charge sheet, is one and same person.
10. Learned State Counsel would further submit that petitioner no.1 is popularly known as Baby in her locality and petitioner no.2 is called by name Rehman in his locality and his father’s another name is Akhtar by which he is popularly called. He would further submit that the cognizance in the matter was taken on 03.09.2008 but the present petition was filed only after non-bailable warrants were issued and the proceedings u/s 82/83 of Cr.P.C. were initiated against the petitioners.
11. Learned State Counsel would refer to Annexure1 to the supplementary counter affidavit dated 20.07.2023 which is report of In-charge Inspector, Kotwali Jwalapur, District Haridwar dated 26.10.2017 filed in the court of C.J.M. Haridwar wherein it was stated that when the police officials went for the execution of the non-bailable warrants upon the petitioner no.1 then she admitted her name as Baby also but disputed her identity therefore C.O. Chandan Singh who was the Investigating Officer on the relevant date, was called and he identified the petitioners and stated that petitioner no.1 Kaneej Fatima and Baby is one and same person and petitioner no.2 Abdur Rehman S/o Asgar Ali and Abdur Rehman S/o Akhtar is also one and same person and that it is the petitioners who were involved in commission of crime.
12. Learned Additional Advocate General would further submit that the Report (Annexure SA-1 to the second supplementary affidavit) on NBW issued against the petitioner no.1 also states that petitioner no.1 told that her other name is “Baby”; that, the Report by S.I. Sunder Lal on execution of Processes u/s 82 Cr.P.C. (Annexure SA-4 to the second supplementary affidavit) also stated that Kaneej Fatima is also popularly known as “Baby”.
13. Learned State Counsel would further submit that the plea taken by the petitioners of mistaken identity for getting the criminal proceedings quashed is false and fabricated as the petitioners are none other but the persons named in the FIR and the charge sheet.
He would further submit that a person cannot run away from facing a trial under the garb of having his several aliases or nick names or the names by which he/she is popularly known in society.
14. He would further submit it was the petitioners along with other accused persons who had attacked the police party when the police party had gone to arrest the dreaded criminals.
15. He would further submit that the question of mistaken identity is a matter of evidence and trial and cannot be decided in a petition filed u/s 482 Cr.P.C.
16. In the light of above submissions, perused the record.
17. The majority of documents annexed herewith the petition to claim the case of mistaken identity are the documents which have been issued after the registration of FIR except the Voter ID of petitioner no.2, thus, no inference can be drawn from such documents. On the last date of hearing, this Court had directed the petitioners to file the documents in original to establish their identity but the said order has not been complied with by the petitioners despite the fact that their identity is at stake and the case solely rests on this point.
Though the learned counsel for the petitioners sought further time to file the documents in original but this Court is not inclined to grant further time as the present petition is pending admission since 2017 and the proceedings of the criminal case pending in the trial court is stayed since 2017 and the charge sheet had been filed on 12.02.2008 and the offence itself was committed on 21.12.2006.
18. Having heard learned counsel for the parties and on perusal of entire material available on record, what emerges out to this Court is that the issue involved in the present writ petition viz. mistaken identity requires evidence and is a matter of trial. This issue cannot be decided by this Court by invoking jurisdiction u/s 482 of Cr.P.C. The powers under Section 482 Cr.P.C. have to be exercised sparingly, carefully and with caution and only to prevent abuse of process of any Court or otherwise to secure ends of justice. In the considered view of this Court, this is not the fit case for exercising powers u/s 482 Cr.P.C.
19. In view of the above, there is no merit in the present C482 petition. Same is hereby dismissed in limine. Interim order dated 06.11.2017 is hereby vacated.
