Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 16719 of 2020
Petitioner :- Ashwani @ Shaiki And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mohd. Kalim,Mary Puncha (Sheeb Jose)
Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J. Hon'ble Samit Gopal,J.
Heard Sri Mohammad Kalim, learned counsel for the petitioners, Sri H.M.B. Sinha, learned A.G.A. for the State- respondents and perused the material on record.
This writ petition has been filed by the petitioners Ashwani@Shaiki, Ratan Singh, Subodh and Kaushalya, seeking quashment of FIR dated 20.10.2020 registered as Case Crime No. 0784 of 2020, for the offence under Sections 498A, 323, 354, 504, 506, 313, 376, 511 of I.P.C. and 3/4 D.P. Act, Police Station Surajpur, District Gautambudh Nagar and also for direction to the respondents not to arrest the petitioners in the matter.
Vide order dated 13.1.2021 the matter was referred to the Mediation Centre on the request of learned counsel for the petitioners with a direction that Rs. 20,000/- be deposited by the petitioners in Allahabad High Court Mediation and Conciliation Centre within a period of 10 days from the date of order and then the Mediation Centre shall proceed to take steps for issuing notice to the respondent no. 3. It was further ordered that the Mediation Centre shall make an attempt to conclude the mediation expeditiously preferably within a period of three months. No coercive action against the petitioners was ordered till 13.4.2021 which was the next date fixed in the matter. It was clarified that the order shall not operate in case the required amount has not been deposited by the petitioners within the time specified therein.
As per the office report dated 12.4.2021 the Mediation Centre of this Court has submitted a report dated 16.3.2021 mentioning therein that the petitioners have not complied with the order dated 13.1.2021 regarding deposit of money till 12.3.2021, and thus notices were not sent to the parties by the Mediation Centre. The report of Joint Registrar, In-Charge of the Mediation Centre of this Court is also on record.
Learned counsel for the petitioners states that he is ready to argue the matter on merits.
It is argued that the petitioner no. 1 has filed a case under Section 9 of Hindu Marriage Act and, thereafter, a divorce petition dated 13.3.2020 has also been filed under Section 13 of Hindu Marriage Act. It is next argued that the respondent no. 3, who is the first informant, is a lady constable posted in the same police station in which the present first information report has been registered. It is next argued that the petitioner no. 1 is an army man and the other family members are father-in-law, jeth and mother-in-law of the respondent no. 3. It is argued that the allegation against jeth of attempting to commit rape upon the respondent no. 3 is a false and fabricated allegation and also the other family members never demanded any dowry and the allegations to the same are also false. It is argued that the entire family members have been falsely implicated in the present matter and no offence under any sections is made out. The petitioners never demanded any dowry or dealt the respondent no. 3 with cruelty. It is argued that no case is made out against the petitioners from perusal of the F.I.R. and, as such, the same deserves to be quashed. Paragraph nos. 4, 6, 7, 8, 12, 13, 14 and 16 of the writ petition have been placed before the Court by learned counsel for the petitioners to buttress the said arguments.
It is argued that the dispute is purely matrimonial in nature and no notice has been served upon the petitioners. The respondent no. 3 is a lady constable and always used to threaten the petitioners, due to which a case under Section 9 of Hindu Marriage Act and subsequently another case under Section 13 of Hindu Marriage Act were filed. It is argued that the present F.I.R. be quashed.
Per contra, learned A.G.A. has submitted that from the perusal of the allegations made in the impugned F.I.R., it cannot be said that no cognizable offence is made out, hence the impugned F.I.R. is not liable to be quashed.
Perusal of the impugned FIR and material on record makes out a prima facie case against the petitioners. The submissions made by the learned counsel for the petitioners relate to disputed questions of fact, which cannot be adjudicated upon by this Court in its jurisdiction under Article 226 of the Constitution of India.
The Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P.
and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case.
Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.
From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. Hence, no ground exists for quashing of the F.I.R. or staying the arrest of the petitioners.
Accordingly, this writ petition fails and is dismissed.
However, the dismissal of the present writ petition will not come in the way of the petitioners to approach the appropriate court for anticipatory bail, if so advised.
The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner(s) along with a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.4.2021 Naresh