Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 15308 of 2019 Petitioner :- Himanshu Srivastav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Atharva Dixit,Manish Tiwary(Senior Adv.),Syed Imran Ibrahim Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Pankaj Bhatia,J.
Heard Sri Manish Tiwary(Senior Adv.), assisted by Sri Atharva Dixit,, learned counsel for the petitioner and Sri Yogeshwar Rai, learned A.G.A. appearing for the State.
This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F. I. R. which has been registered as Case Crime No.45 of 2015, under Sections 409, 420, 467, 468, 471, IPC, Police Station Babri, District Shamli (Prabudh Nagar).
Learned counsel for the petitioner submitted that the impugned first information report has been lodged by the complainant- respondent containing absolutely false and concocted allegations against the petitioner with the ulterior intention of harassing the petitioner; that initially an FIR was lodged with regard to embezzlement of an amount. Subsequently it was found that the embezzlement amount has been increased and therefore, the present second FIR has been lodged against the petitioner which is not permissible under the law; that the matter needs a deeper and fairer investigation before any arrest should be given effect to; that apart from the bald allegations made in the impugned F.I.R., no evidence is forthcoming even prima facie indicating at the complicity of the petitioner in the commission of alleged offence and hence the impugned F.I.R. which is a bundle of lies and motivated by malice, is liable to 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.
Having heard the submissions advanced by learned counsel for the parties and perused the impugned first information as well as the other material brought on record, we are not inclined to quash the impugned F.I.R.
However, considering the peculiar facts and circumstances of the case and the submissions advanced by learned counsel for the parties, we dispose of this writ petition with the direction that the petitioner shall not be arrested in the aforementioned case till submission of police report under Section 173(2) Cr.P.C. However, petitioner shall participate and co-operate with the investigation and police authorities shall conclude the investigation as early as possible from the date of production of certified copy of the order.
With the aforesaid observations, the instant writ petition is finally disposed of.
The investigating officer will also consider and keep this fact in mind that this is the second FIR with regard to same cause of action, while investigating the matter.
Order Date :- 30.5.2019 VKG