Hon'ble Rajendra Kumar-IV,J.
Heard learned counsel for the petitioner and learned AGA for the State.
The present writ petition has been filed by the petitioner, praying for quashing of the First Information Report, registered as Case Crime No.1100 of 2019 under Sections 363,366, 376D I.P.C. and 3/4 of POCSO ACt, P.S.- Naini, District-Prayagraj, with a further prayer to stay his arrest during pendency of investigation of the said case.
Learned AGA opposed the prayer for quashing of the First Information Report and stay of arrest and submitted that from the perusal of First Information Report, commission of a cognizable offence is clearly made out, therefore, the writ petition be dismissed.
We have gone through the allegations in the First Information Report and we find that the same clearly discloses commission of a cognizable offence, consequently, we agree with the submission of learned AGA that the First Information Report cannot be quashed.
In respect of the second prayer made by learned counsel for the petitioner for stay of arrest of the petitioner till submission of the report under Section 173(2) of the Code of Criminal Procedure, 1973, we would like to take notice of the law laid down by Supreme Court in State of Telengana v. Habib Abdullah Jellani; 2017 (2) SCC 779 wherein the Supreme Court has disapproved an order restraining the Investigating Agencies from arresting the accused where prayer for quashing the FIR has been declined. Relying on the said decision, the Supreme Court entertained Special Leave to Appeal (Crl.) No. 4650 of 2020 (Samiksha Singh @ Nikki v. The State of U.P. & Others) wherein similar direction issued by the High Court staying arrest until the submission of report under Section 173(2) Cr.P.C. was under challenge. The order is as follows: -
"1. Mr Sanchit Garga, learned counsel appearing on behalf of the petitioner, submits that while the High Court declined to quash the FIR, at the same time, it has granted an order protecting the accused from arrest until the submission of the report under Section 173(2) of the Code of Criminal Procedure 1973 which, it has been submitted, is impermissible in law. He relies on a decision of this Court in State of Telengana v. Habib Abdullah Jeelani.
2. Issue notice, returnable in three weeks.
3. Liberty to serve the Standing Counsel for the State of Uttar Pradesh, in addition."
Having regard to the law laid down by Supreme Court in State of Telengana (supra), we also decline to grant the second prayer.
The writ petition is accordingly dismissed. This is without prejudice to the right of the petitioner to seek anticipatory bail/bail, as may be maintainable or advised. If any such recourse is taken, the bail application shall be disposed of expeditiously, without being influenced by any observation made in the instant order.
(Rajendra Kumar IV, J.) (Manoj Kumar Gupta, J.) Order Date :- 8.1.2021 SL