Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 2841 of 2021 Petitioner :- Kirti And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Abhishek Gupta Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sbhishek Gupta, learned counsel for petitioners and Mr. H. M.B. Sinha, learned A.G.A. representing respondents 1, 2 and 3.
2. This writ petition under Article 226 of Constitution of India has been filed challenging the F.I.R. dated 04.03.2021, lodged by first informant/ respondent-4 Smt. Rekha Khatik and registered as Case Crime No. 66 of 2021 under Sections 323, 354, 354A, 376, 504 and 506, 511 and Section 3 (2) (va) S.C./S/T Act, Police Station-Dankaur, District-Gautam Budh Nagar.
3. Perusal of record goes to show that in respect of an incident which is alleged to have occurred on 07.06.2020, a delayed F.I.R dated 04.03.2021 was lodged by first informant, respondent-4, Smt. Rekha Khatik which was registered as Case Crime No. 66 of 2021 under Sections 323, 354, 354A, 376, 504 and 506, 511 and Section 3 (2) (va) S.C./S/T Act, Police Station-Dankaur, District-Gautam Budh Nagar. In the aforesaid F.I.R. two persons namely Vinod Kumar Sharma and Smt. Kirti W/o Vinod Kumar Sharma i.e. petitioners here in, have been nominated as named accused.
4. According to the prosecution story as unfolded in the F.I.R., it is alleged that accused persons abused the first informant, assaulted her and further, made an attempt to dislodge her modesty.
5. Learned counsel for petitioners contends that impugned F.I.R. dated 04.03.2021 is wholly malicious and is therefore, liable to be quashed by this Court. Elaborating his submission, learned counsel for petitioners, contends, that husband of informant namely Shiv Kumar is Manager of Old Age Home run by petitioners. In discharge of his duty, he is alleged to have mis-appropriated certain amount as well as goods belonging to petitioner-2 Vinod Kumar Sharma. Consequently, petitioner-2 filed original suit registered as CNR NO. UPGBO 40/33362020 (Vinod Kumar Sharma Vs. Jan Kalyan Parishad and another) for a decree of mandatory injunction regarding return of goods and further for permanent prohibitary injunction restraining the dependants from causing any damage to the property in dispute..
6. As a counter blast to aforesaid, civil proceedings initiated by petitioner-2, impugned F.I.R. has been lodged as a pressure tactics to gain mileage in above mention civil suit. It is thus urged that impugned F.I.R. consequently is malicious and therefore liable to be quashed by this Court. To buttress his submission learned counsel for petitioners has relied upon the judgement of Supreme Court in State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426.
7. Per contra Mr. H.M.B. Sinha, learned A.G.A has opposed this writ petition. He contends that from the allegations made in the F.I.R. giving rise to this writ petition, it is apparent that on account of allegations made in the F.I.R. the provisions of Sections 354 and 354A as well as provisions of Section 3 (2) (va) S.C./S/T Act have also been invoked. It is next contended that modesty of a women is alleged to have been dislodged but nighter the statement of the prosecutrix as recorded under Section 161 Cr.P.C. or Under Section 164 Cr.P.C. have been annexed alongwith writ petition. He further contends that provisions of Section 3 (2) (va) S.C./S/T Act have also been invoked. The issue as to whether any such incriminating words were uttered by petitioners or not, is an issue of fact, veracity of which cannot be decided in proceeding under Article 226 of the Constitution of India as this Court is denuded of its power regarding appraisal and appreciation of evidence. On the cumulative strength of aforesaid, it is submitted by learned A.G.A. that no case for quashing of F.I.R. is made out. Therefore, the writ petition is liable to be dismissed.
8. Having heard learned counsel for petitioners and learned A.G.A. for State and upon perusal of record, prima facie, we are of view that perusal of F.I.R. clearly denotes commission of cognizable offence. The issue as to whether allegation made in the F.I.R. are true or false is an issue of fact which can be more appropriately decided in the trial.
9. On the facts and circumstances of the case, we are unable to agree with the submission of learned counsel for petitioner that impugned F.I.R. has been engineered as a counter blast to the civil proceedings initiated by petitiioner-2 against husband of first informant i.e. respondent-4. The averments made in the body of the writ petition and the submission urged by learned counsel for petitioners, do not make out a cast iron case regarding quashing of F.I.R.; on the ground of malafide.
10 For the reasons noted above, the present writ petition fails and is liable to be dismissed.
11. It is accordingly, dismissed.
Order Date :- 6.5.2021 YK