Court No. - 2
Case :- CRIMINAL MISC. WRIT PETITION No. - 16062 of 2019
Petitioner :- Gauri Shankar
Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shiv Bahadur Singh Counsel for Respondent :- G.A.
Hon'ble Dinesh Kumar Singh-I,J. Hon'ble Pradeep Kumar Srivastava,J.
Heard Sri Shiv Bahadur Singh, learned counsel for the petitioner, Sri Vimal Kumar Pandey, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioner with a prayer to quash the F.I.R. dated 12.5.2019 registered as case crime no. 51 of 2019 under section 376 I.P.C. and under section 3/4 Protection of Children from Sexual Offences Act, 2012, police station Koirauna, District Bhadohi with a further prayer in the nature of mandamus commanding the respondents not to take coercive action against the petitioner in the aforesaid case crime..
It is argued on behalf of the petitioner that as per allegation of the FIR, the victim is 13 years old, who has been allegedly raped by the accused. It is further argued that because of animosity between the two sides pertaining to some courtyard, the accused has been falsely implicated as has been mentioned in paragraph no. 15 of the writ petition. It is further argued that the victim is above 16 to 18 years of age. She is at the verge of the majority. The houses of the accused and informant are adjoining to each other. He has no criminal history.
Learned A.G.A. opposed the prayer for quashing of the F.I.R. which discloses cognizable offence.
The Full Bench of this court in Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. and others (2000 Cr.L.J. 569) 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 as laid down by the Apex Court in various decisions including State of Haryana v. Bhajan Lal and others (AIR 1992 SC 604) attended with further elaboration that observations and directions contained in Joginder Kumar's case (Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260 contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under article 226 and the same are intended to be observed in compliance by the Police, the breach whereof, it has been further elaborated, may entail action by way of departmental proceeding or action under the contempt of Court Act. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the constitution as an alternative to anticipatory bail which is not invocable in the State of U.P. attended with further observation that what is not permissible to do directly cannot be done indirectly.
The learned counsel for the petitioner has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case.
Having scanned the allegations contained in the F.I.R. the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and/therefore no ground is made out warranting interference by this Court. The prayer for quashing the same is refused.
The petition lacks merit and is accordingly, dismissed.
(Pradeep Kumar Srivastava, J) (Dinesh Kumar Singh-I, J.)
Order Date :- 10.6.2019 AU