Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 5039 of 2021
Petitioner :- Raju Nishad @ Bihirru Respondent :- State Of Up And Other Counsel for Petitioner :- Shashank Tripathi
Hon'ble Pritinker Diwaker,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
Sri Shashank Tripathi, counsel for the petitioner and Sri Ankit Prakash, learned counsel for the State.
This writ petition has been filed seeking quashment of FIR dated 21.2.2021 registered against petitioner no.1, as Crime No. 23 of 2021, for the offence under Section 363 of IPC, Police Station Kishanpur, District Fatehpur.
Counsel for the petitioners submits that both the petitioners have performed marriage on 22.6.2021 and they have every right to live a happy married life. It has been argued that as per Aadhaar Car, petitioner no.2 is major and thus, no offence under Section 363 is made out. Learned counsel further submits that direction may be issued for medical examination of petitioner no.2 so that her age can be determined. He submits that if petitioner no.1 is arrested, he will suffer irreparable loss.
Opposing the aforesaid submissions, learned State counsel submits that as per FIR, age of petitioner no.2 is 17 years and thus she is minor. He submits that this Court cannot direct to create any evidence in favour of the accused and, therefore, no such direction can be issued for medical examination. He has opposed the prayer for quashing and stay of arrest. It has been argued that from a perusal of allegations made in the impugned F.I.R., a cognizable offence is made out against the petitioner no.1.
Heard counsel for the parties and perused the records.
Perusal of the impugned FIR and material on record makes out a prima facie case against the petitioner no.1. The submissions made by counsel for the petitioners relate to disputed questions of facts, which cannot be adjudicated upon by this Court in jurisdiction of under Article 226 of Constitution of India.
A Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P. and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case.
Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.
The Apex Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others (Criminal Appeal No. 330 of 2021) in its judgment dated 13th April, 2021 has in detail held that the Courts should not thwart any investigation into the cognizable offences. It is only in cases where no cognizable offence or offence of any kind is disclosed in the First Information Report that the Court will not permit an investigation to go on. The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases. While examining an FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. Criminal proceedings ought not to be scuttled at the initial stage. Quashing of complaint/FIR should be an exception rather than an ordinary rule. Ordinarily, the Courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere. The First Information Report is not an encyclopaedia which must disclose all facts and details regarding the offence reported. Therefore, when the investigation by the police is in progress, the Court should not go into merits of the allegations made in the FIR. Police must be permitted to complete the investigation.
From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. Hence, no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner.
Accordingly, this writ petition fails and is dismissed.
Dismissal of the writ petition may not come in the way of petitioner no.1 to seek other remedies available to him under the law.
The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner along with a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 29.7.2021 RK
Digitally signed by Justice Pritinker Diwaker Date: 2021.07.30 16:48:02 IST Reason: Document Owner Location: High Court of Judicature at Allahabad Digitally signed by Justice Manju Rani Chauhan Date: 2021.07.30 16:52:12 IST Reason: Document Owner Location: High Court of Judicature at Allahabad