Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 5426 of 2021 Petitioner :- Anand Chaudhary And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Swetashwa Agarwal,Diwakar Singh,Varad Nath Counsel for Respondent :- G.A.,Anjani Kumar Rai,Ashok Kumar Rai,Shashi Prakash Rai
Hon'ble Surya Prakash Kesarwani,J. Hon'ble Gautam Chowdhary,J.
Heard Shri Daya Shankar Mishra, learned Senior Advocate assisted by Shri Diwakar Singh, learned counsel for the petitioners, Shri Patanjali Mishra, learned A.G.A. and Shri Mangala Prasad Rai assisted by Shri Ashok Kumar Rai, learned counsel for respondent nos.4 and 5.
This writ petition has been filed praying for the following reliefs :-
"A) a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 4.7.2021 vide Case Crime no.0249 of 2021, U/s 147, 148, 149, 342, 500, 504, 506, 354, 354A(IV), 354B I.P.C. and 9m/10 of POCSO Act, Police Station- Kotwali, District- Ballia (contained as annexure-1 to the writ petition.)
B) a writ, order or direction in the nature of mandamus commanding the respondent no.2 and his subordinate officers not to harass/arrest the petitioners in pursuance of FIR dated 4.7.2021 vide Case Crime no.0249 of 2021, U/s 147, 148, 149, 342, 500, 504, 506, 354, 354A(IV), 354B I.P.C. and 9m/10 of POCSO Act, Police Station- Kotwali, District- Ballia.
C) a writ, order or direction in the nature of mandamus commanding the respondent authorities, not to harass and prevent Petitioner No.1 from attending the oath ceremony scheduled on 12.07.2021 and further be pleased to restrict the respondent authorities to use illegal means against the petitioners till the oath ceremony on 12.07.2021."
Learned counsel for the petitioners submits that the impugned First Information Report has been maliciously lodged and Section 9/10 of the POCSO Act has been maliciously added subsequently, inasmuch as the informant is a political opponent and as on 7.7.2021 when POCSO Act was added, there was no material on record to add the offences under the POCSO Act. He submits that in view of the law laid down by Hon'ble Supreme Court in Criminal Appeal No.1164 of 2021 (Geo Varghese Vs. The State of Rajasthan & Anr.) decided on 5.10.2021, the impugned First Information Report deserves to be quashed. He further submits that petitioner no.1, after being given the certificate by the Returning Officer, was returning to his house peacefully under the police security as provided by the district administration and there was no crowd. The petitioners have neither participated in any procession nor they asked any of their supporters to do it.
Learned A.G.A. submits that perusal of the impugned First Information Report discloses commission of cognizable offences. He points out that during investigation commission of offences under the POCSO Act and other provisions of I.P.C. was found. He relied upon the judgement of Hon’ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918.
Learned counsel for the respondent no.4 and 5 submits that the impugned First Information Report discloses commission of cognizable offences and therefore no interference can be made. He submits that the incident has truly happened and therefore the impugned First Information Report was lodged for criminal acts committed by the petitioners.
We have carefully considered the submissions of learned counsel for the parties.
The perusal of the impugned First Information Report, prima facie, discloses commission of cognizable offences. The provisions of POCSO Act and certain other provisions of I.P.C. were added in the impugned F.I.R. on 7.7.2021. Along with counter affidavit the copy of case diary dated 6.7.2021 has been filed which discloses that the statement of the victim Smt. Ramuni Devi under section 161 Cr.P.C. was recorded in which she supported the F.I.R. version including the allegations made in the F.I.R. attracting provisions of offences under POCSO Act.
The judgement in the case of Geo Varghese (supra) relied by learned counsel for the petitioners relates to rejection of application under Section 482 Cr.P.C. In the said case Hon’ble Supreme Court found that even on minute examination the suicide note was a rhetoric document penned down by an immature mind and reading thereof suggests the hypersensitive temperament of the deceased which led him to take such an extraordinary step, otherwise it would not ordinarily induce a similar circumstanced student to commit suicide. In paragraph-40 of the judgement Hon’ble Supreme Court has found the allegations to be absurd. In paragraph-41 of the judgement the Hon’ble Supreme Court observed that in the absence of any specific allegation and material of definite nature, not imaginary or inferential one, it would be travesty of justice to ask that appellant-accused to face the trial.
In the present set of facts, specific allegations have been made in the impugned First Information Report which prima facie indicates commission of cognizable offences under various provisions of I.P.C. and of POCSO Act. Investigation has not yet been concluded by the investigating officer. Investigation is going on. Some evidences have been collected by the investigating officer as indicated in the counter affidavit filed by the State-respondents which prima facie indicates commission of cognizable offences.
In view of the aforesaid, we do not find any force in the submissions of learned counsel for the petitioners that the impugned F.I.R. is malicious.
For all the reasons afore-stated and also in view of the law laid down in Bhajan Lal (supra) and M/s Neeharika (supra) we do not find any good reason to interfere with the impugned First Information Report. Consequently, the writ petition is dismissed leaving it open for the petitioners to apply for bail in accordance with law before the appropriate court.
It is made clear that any of the observations made in the body of this order shall not be treated as adverse to the petitioners either in investigation, during trial or on bail application, if any.
Order Date :- 6.10.2021 shiv