Court No. - 65
Case :- CRIMINAL MISC. WRIT PETITION No. - 3756 of 2019 Petitioner :- Mohammad Ali Shaan And Another Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Shivendra Raj Singhal Counsel for Respondent :- G.A.,Adarsh Singh,Indra Raj Singh
Hon'ble Karuna Nand Bajpayee,J. Hon'ble Ifaqat Ali Khan,J.
This writ petition has been filed seeking the quashing of F.I.R. dated 23.01.2019, registered as Case Crime No. 0030 of 2019, under Sections 420, 467, 468, 471, 307, 384, 504 and 506 I.P.C., P.S.- Prem Nagar, District- Bareilly.
Heard Sri Dharmendra Singhal, learned Senior Advocate assisted by Sri Shivendra Raj Singhal, learned counsel for the petitioners, learned counsel for the respondent no. 3 and learned A.G.A.
Entire record has been perused.
Submission of learned counsel for the petitioners is that the petitioner no.1 and first informant-respondent no.3 entered into an agreement for starting a gymnasium of which both of them were partners of 50% each. In the said gymnasium later on the name of new partner namely, Rahat Mian was introduced. In the said agreement he was made 25% share holder of the business which was being carried out by petitioner no.1 and the first informant. Further submission is that later on petitioner no.1, the first informant and aforesaid Rahat Mian entered into a mutual understanding dated 31.8.2017 in which the first informant and Rahat Mian had agreed to return Rs. 21,60,000/- to petitioner no.1. Copy of this mutual understanding dated 31.8.2017 is annexed as Annexure-6 to the present writ petition. It has been further submitted by the learned counsel for the petitioners that on 12.4.2018 Rahat Mian had executed a notarized affidavit by which he had declared that he had received all his entire amount of share and as such had withdrawn all his rights of being partner of the said gymnasium. But it was the first informant-respondent no.3 who had not paid the required amount to the petitioner no.1. On the other hand, he has lodged the present FIR on incorrect facts. Learned counsel for the petitioners has drawn the attention of this Court to the interim order of maintaining status quo passed by the Civil Judge (J.D.), Bareilly in O.S. No.369 of 2018. In the suit filed by petitioner no.1 the first informant arraigned as defendant praying regarding undue interference of defendant- first informant of the present case in the said gymnasium. Even the learned counsel for the petitioners has again drawn the attention of the Court to the Enquiry report submitted by the Circle Officer as well as letter of S.S.P., Bareilly dated 2nd January, 2019 which was addressed to A.D.G., Bareilly in which it was stated by the aforesaid authority that as the dispute between the parties is to be adjudicated through a proper court in O.S. No. 369 of 2018, therefore, no action was required against the petitioners. Copy of the Enquiry report is annexed as Annexure-10 to the present writ petition. Further submission is that the present case is of no injury and the allegation of alleged firing does not find place in the earlier application of the first informant which was moved on 16.12.2018. Certain other contentions have also been raised by the petitioners' counsel which relate to disputed questions of fact. The court has also been called upon to adjudge the worth of prosecution allegations and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of indictment has been questioned, absence of material which may substantiate the allegations has been contended and false implication has been pleaded.
The law regarding sufficiency of grounds which may justify quashing of F.I.R. in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. The view taken in the case of Satyapal vs. State of U.P. and others, 2000 Cr.L.J. 569 which was further confirmed by another Full Bench of this Court in the case of Ajit Singh @ Muraha v. State of
U.P. and others (2006 (56) ACC 433) makes the position of law in this regard clear and this Court does not find it advisable to whittle down the power or scope of investigation in the given case. The operational liberty to collect sufficient material, if there exists any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet and the same may also be good grounds to quash the F.I.R. Some of them are akin to the illustrative examples given in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused in the F.I.R. or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable or impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted only with ulterior motive or grudge and vengeance alone, may be illustratively the fit cases for the High Court in which the F.I.R. or the criminal proceedings may be quashed. If a particular case falls in some such categories as recognized by the Apex Court in Bhajan Lal's case, it may justify the interference by this Court in exercise of its inherent power as provided in Code of Criminal Procedure or in exercise of its powers vested by the Constitution of India.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the petitioners' learned counsel call for determination on pure questions of fact which may be adequately discerned only through proper investigation. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins or where the investigating agency should not be given fullest opportunity to make proper inquiry and reach at the just conclusions in the matter. This Court does not deem it proper to suffocate or trammel the ambit and scope of independent investigation into the case. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during investigation or trial. But it shall suffice to observe that the perusal of the record makes out prima facie offences at this stage and there appear to be sufficient ground for investigation in the case. We do not find any justification to quash the F.I.R. or the proceedings against the accused arising out of it as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as we do not see any breach of constitutional provisions or any abuse of the process of law.
However, in the wake of conspicuous facts and circumstances of the case and the nature of allegations and also keeping in view the various contentions raised on behalf of the petitioners based on the provisions of Section-157 Cr.P.C. and on the view taken by the Apex Court in the case of Joginder Kumar vs. State of U.P.; 1994 Cr.L.J. 1981, it is directed that the petitioners shall not be arrested in above mentioned case, unless credible evidence against them is collected by the Investigating Officer during investigation.
It is clarified that this order has been passed only with regard to the accused on behalf of whom this writ petition has been moved in this Court.
With the aforesaid observations this writ petition is finally disposed off.
Order Date :- 21.2.2019 Swati