Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 28571 of 2017 Petitioner :- Pawan Kumar And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Adesh Kumar Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ghandikota Sri Devi,J.
Heard learned counsel for the petitioners and learned A.G.A. 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. 425 of 2017, under Sections- 498A, 323, 504, 506, 376, 511 IPC & 3/4 D.P. Act, P.S.- Mawana, District- Meerut.
Learned counsel for the petitioners submitted that the impugned first information report has been lodged by the complainant- respondent containing absolutely false and concocted allegations against the petitioners with the ulterior intention of harassing the petitioners; The further contention of the learned counsel for the petitioners is that vide order dated 21.12.2017 passed by another Bench, the matter was referred to the Mediation Center. We have perused the report of the Mediation Center dated 17.02.2018 which shows that even though both the parties had appeared before the Mediation Center, however, the parties were not willing for the Mediation and thus the same was failed. In this view of the matter, the Court proceeds the case on its merit with the consent of counsel for both the parties. We have perused the First Information Report; 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 petitioners 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 .
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.
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.
So far as petitioner no. 1 is concerned, who happens to be the husband, the following order is being passed;
After hearing learned counsel for petitioner no. 1 and learned AGA, it is directed that in case, petitioner no. 1 appears and surrenders before the court below within two months from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of two months from today or till petitioner no. 1 surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against petitioner no. 1. However, in case, petitioner no. 1 does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
So far as petitioner nos. 2 and 3 are concerned, they are jeth and jethani, a specific plea has been taken and they are living separately as mentioned in the paragraph 10 of the writ petition and they had no role to play in controversy in issue, the following order is being passed;
Considering the peculiar facts and circumstances of the case and the submissions advanced by learned counsel for the parties and also in view of the law laid down by the Apex Court in the cases of B.S. Joshi v. State of Haryana; 2003(4) SCC 675 and Rajesh Sharma and others v. State of U.P. and others decided on 27.7.2017 passed in Special Leave Petition (Crl.) No.2013 of 2017, we dispose of this writ petition with the direction that petitioner nos. 2 and 3 shall not be arrested in the aforementioned case till submission of police report under Section 173(2) Cr.P.C. However, petitioner nos. 2 and 3 shall participate and co-operate with the investigation.
With the aforesaid observations, the instant writ petition is finally disposed off.
Order Date :- 19.12.2018 V.S.Singh