Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 5779 of 2021
Petitioner :- Chandra Dev Pandey And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shams Uz Zaman,Mukesh Kumar Pandey Counsel for Respondent :- G.A.
Hon'ble Surya Prakash Kesarwani,J. Hon'ble Piyush Agrawal,J.
Heard Sri Mukesh Kumar Pandey, learned counsel for the petitioners and Sri Patanjali Mishra, learned A.G.A. for the State-respondents.
The instant petition has been filed by the petitioners with the following prayers :-
"(i) Issue a writ order or direction in the nature of certiorari quashing the impugned FIR dated 25.05.2021 registered as Case Crime No. 286 of 2021, under Sections 498A, 323, 504, 506 I.P.C. and 3/4 D.P. Act, , Police Station Shivpur, District Varanasi.
(ii) Issue a writ order or direction in the nature of mandamus commanding the respondents not to arrest the petitioners in pursuance of the impugned FIR dated 25.05.2021 registered as Case Crime No. 286 of 2021, under Sections 498A, 323, 504, 506 I.P.C. and 3/4 D.P. Act, , Police Station Shivpur, District Varanasi".
As per FIR version, the informant-respondent no.3 was married with the petitioner no.1 on 22.05.2013. The petitioner no.1 is the resident of Kanpur Nagar, while parental house of the informant-respondent no.3 is at Varanasi. In para no.9 of the writ petition, it has been stated that petitioner no.1 was residing in Pune since 2013 till 2017 and thereafter, during the year 2018-19, he along with informant-respondent no.3 remain in Japan for his job. In his support, a copy of the visa of the informant-respondent no.3 and daughter Dyuti Pandey has been filed along with writ petition as Annexure-3, which shows that date of departure from India is 18.02.2018. It appears that father of petitioner nos. 2, 4 and 5 and husband of petitioner no.3, namely, Arjun Pandey died on 19.05.2021,and on that account the brother of the informant-respondent no.3 came to the house of the petitioner no.1 on 22.05.2021 on which date the alleged incident of demand of Rs. 10 lakhs and a Honda Civic Car was allegedly made by the petitioners from the brother of the informant-respondent no.3 and for that reason, the informant- respondent no.3 was allegedly ousted from the matrimonial house. The petitioner nos. 4 and 5 are married Nand of the informant-respondent no.3. It is highly improbably that petitioner nos. 1 and 2, who are sons, petitioner nos. 4 and 5 who are married daughters, and petitioner no.3, who is wife of late Arjun Pandey, would demand dowry within two or three days of the death of Late Arjun Pandey, which the entire family would have been in grief. Thus, prima facie, the allegation of the informant-respondent no.3 with respect to the incident dated 22.05.2021 appears to be highly improbable and prompted by malafide. So far as the allegations of continuous harassing since the time of marriage dated 22.05.2013 is concerned, it also appears to be improbable on the very face of the impugned FIR, inasmuch as informant-respondent ho.3 was residing with her husband i.e. petitioner no.1, who was serving either at Pune or abroad and the petitioner nos. 4 and 5 being married Nand were residing at their matrimonial house. Thus, the entire story built up in the impugned FIR, prima facie appears to be improbable and malicious. Prima facie, it appears that differences between the petitioner nos.1 and informant-respondent no.3 have been alleged to be converted into a criminal case by implicating the entire family of the petitioners.
In such a estate of affair, the lodging of the impugned FIR is, prima facie, abuse of the process of law.
In a recent judgement in Special Leave Petition (Criminal) No. 3875 of 2021 (A.P. Mahesh Cooperative Urban Bank Shareholders Welfare Association Vs. Ramesh Kumar Bung and others), decided on 20.7.2021, Hon'ble the Apex Court has observed as follows:-
"22. As rightly pointed out by the learned senior counsel appearing for Respondents 1 to 3, Neeharika (supra) certainly allowed space for the High Court to pass an interim order of the nature impugned herein, "in exceptional cases with caution and circumspection, giving brief reasons". What is frowned upon in Neeharika (supra) is the tendency of the courts to pass blanket, cryptic, laconic, non-speaking orders reading "no coercive steps shall be adopted". In Paragraph 60 of the Report in Neeharika (supra), this Court recognized that there may be allegations of abuse of process of law, converting a civil dispute into a criminal dispute, with a view to pressurize the accused. In the order impugned in these petitions, the High Court has given elaborate reasons as to how the allegations of bank fraud were developed during the proceedings concerning allegations of election fraud. Therefore, the impugned order cannot be said to be bad in the light of Neeharika principles.
23. In fact, Neeharika reiterates the parameters laid down in the celebrated decision in State of Haryana vs. Bhajan Lal6. One of the cardinal principles evolved in Bhajan Lal (supra) found in paragraph 102
(7) reads as follows:
"where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge"
In paragraph 37 of the decision in Neeharika, the above passage from Bhajan Lal is extracted. In fact Bhajan Lal (supra) took note of the view expressed by Bhagwati, C.J. in Sheonandan Paswan vs. State of Bihar to the effect "that a criminal prosecution, if otherwise justifiable and based upon adequate evidence, does not become vitiated on account of malafides or political vendetta of the first informant or complainant." Yet Bhajan Lal (supra) laid down seven principles in paragraph 102, the last which we extracted above. The seven principles enunciated in paragraph 102 of Bhajan Lal (a two member Bench) are actually quoted with approval in Neeharika (a three member Bench)."
In view of the aforesaid, matter requires consideration.
Issue notice to opposite party no.3 returnable at an early date.
Steps be taken by ordinary process as well as by registered post within a week.
All the respondents may file Counter affidavit within three weeks. Petitioners shall have two week thereafter to file rejoinder affidavit.
List/put up on 04.10.2021 in the additional cause list before the appropriate bench.
Considering the facts and circumstances of the case as briefly discussed above, as an interim measure, it is provided that till the next date fixed, petitioners shall not be arrested pursuant to the impugned first information report, provided the petitioners cooperate in the investigation.
Order Date :- 30.7.2021 T.S.