Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 3176 of 2019 Petitioner :- Rajiv Chopra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Birendra Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioner; learned AGA for the respondent nos. 1, 2 and 3; and perused the record.
The instant petition seeks quashing of the first information report dated 06.12.2018 registered as Case Crime No. 0091 of 2018, under Section 3/4 of the Public Gambling Act, 1867 and Sections 420, 467, 468, 471 IPC, Police Station Kotwali, District Agra.
The allegation in the first information report is that a police raid was conducted upon information that a place was being used for gambling on cricket match. It is alleged that when the raid was conducted, a large number of equipments i.e. laptop, mobile phone, etc. were recovered. The accused persons however escaped from the spot therefore the first information report was lodged against unknown persons.
The petitioner filed this petition by claiming that there is no cogent material to link the petitioner with the crime reported, yet, the police is harassing the petitioner.
On the basis of the aforesaid contention, on 07.02.2019 we had passed the following order:
"The impugned first information report has been lodged against unknown persons upon recovery of multiple mobile phones; laptop; and Airtel connection for creating a HOTSPOT which were being allegedly used by the accused persons for betting. It is alleged that accused, upon seeing the police party, managed their escape.
The contention of the learned counsel for the petitioner is that there is no credible information against the petitioner and the place from where the recovery has been made does not belong to the petitioner and therefore the petitioner is being unnecessarily harassed by the police.
Put up this matter in the additional list on 27.02.2019, by which date, the learned A.G.A. shall seek instructions and file a short counter-affidavit disclosing the material on the basis of which the petitioner is said to be involved in the crime. The affidavit shall also disclose whether CDR detail of the mobile phones have been obtained to demonstrate the involvement of the petitioner in any manner.
Till the next date of listing, no coercive action shall be taken against the petitioner in Case Crime No. 91 of 2018, under Sections 3/4 of Public Gambling Act, 1867 and sections 420, 467, 468, 471 I.P.C., P.S. Kotwali, District Agra."
Pursuant to the above order, a short counter affidavit has been filed by the Investigating Officer disclosing that in the statement of Vinod Vij, who is the owner of the house from where recovery was effected, it has come that the petitioner and co-accused had taken the premises on rent for trading. It is stated that rent deed was in favour of accused Susheel. It is stated that SIMS of mobile phone that were recovered, disclose that they were issued in the name of the petitioner. It is also stated that the vehicle, namely, Scooty Activa, bearing registration no. UP 80-EA-2285, which was recovered was found registered in the name of the petitioner. On the above basis, learned AGA has pointed out that there is credible information against the petitioner and, therefore, the petitioner is wanted in the case.
Learned counsel for the petitioner has sought to dispute the aforesaid allegations. But, it is well settled that the correctness of the allegations are not to be tested in writ jurisdiction, particularly, when the matter is under investigation.
At this stage, learned counsel for the petitioner has submitted that even if the allegations are accepted as correct, it cannot be said that any offence punishable under Sections 420, 467, 468, 471 IPC is made out.
It is well settled that when a first information report discloses commission of cognizable offence, the investigation of the case has to be conducted and brought to its logical conclusion. If the complicity of the accused is ascertainable on the basis of material received during the course of investigation, then the police, on the basis of material collected during the course of investigation, has to come to a conclusion as regards offence committed by him. At this stage, it would be premature to comment as to what offence is made out and what is not. Suffice it to say that the first information report discloses commission of cognizable offence, therefore the matter would have to be investigated and the investigation would have to be brought to its logical conclusion.
In view of the above, we decline to interfere with the investigation and, therefore, the prayer of the petitioner to quash the impugned first information report is refused. The petitioner is at liberty to apply for bail.
The petition is dismissed.
Order Date :- 27.2.2019 Lbm/-