Hon'ble Vedpal,J.
Heard Sri S.C. Shukla, learned counsel for the petitioners and learned Additional Government Advocate who has accepted notice on behalf of opposite parties no. 1 to 4. Issue notice to opposite party no. 5 returnable at an early date.
Opposite parties may file counter affidavit within six weeks. Two weeks thereafter are granted to the petitioners to file rejoinder affidavit, if any.
List the petition immediately after expiry of aforesaid period.
Under challenge in this petition is existence of FIR relating to case crime No 768 of 2009 under Section 376, 307, 323, 504, 506, 147 & 342 IPC of Police Station Jaisinghpur, district Sultanpur.
We have gone through the contents of the FIR.
Submission of learned counsel for the petitioners is that on an earlier occasion, Raj Narain Pandey, father of opposite party no. 5, had lodged an FIR vide Case Crime 28 of 2007 under Sections 363 & 366 IPC of Police Station Jaishinghpur, district Sultanpur with respect to an incident said to have been committed at 11.00 pm in which his daughter (opposite party no.
5) was kidnapped by one Surendra Kumar Vishwakarma in which after the prosecutrix was recovered; her medical examination was conducted; and her statement under section 164 Cr.P.C. was recorded, trial, being Sessions Trial No. 58 of 2007, commenced against said Surendra Kumar Vishwakarma which ultimately resulted in acquittal of the accused vide judgment dated 11.08.2009. Against acquittal of the accused in aforesaid Sessions Trial, father of opposite party no.5, who was complainant in that case has filed Criminal Revision No. 521 of 2009 which is still pending.
Copy of the FIR of aforesaid Case Crime No. 28 of 2007 under Sections 363 & 366 IPC of Police Station Jaishinghpur, district Sultanpur; statement of the prosecutrix recorded under Section 164 Cr.P.C and of other prosecution witnesses recording during the trial have been annexed along with the writ petition.
Learned counsel for the petitioner emphasized upon the Court that the incident relates to 11.01.2007 and the impugned FIR giving rise to Case Crime No.768 of 2009 under Section 376, 307, 323, 504, 506, 147 and 432 IPC of Police Station Jaisinghpur, district Sultanpur speaks with respect to rape having been committed upon the prosecutrix by accused Uma Kant Upadhyay and Lakshmi Narain. What the learned counsel for the petitioners intends to submit is that if the allegations made in the present FIR are true, then nothing could have prevented the prosecutrix to state it in her statement recorded earlier under Section 164 Cr.P.C. as also in her statement recorded during trial. He submitted that this itself shows that the impugned FIR has been lodged against the accused with mala fide intentions.
Learned counsel for the petitioners further submitted that since the trial arising from the earlier FIR relating to case crime no. 28 of 2007 resulted in acquittal as such, the opposite party no. 5/complainant has got the impugned FIR lodged with respect to the same incident relating to the episode of the date 11.01.2007 as such, the accused cannot be prosecuted with respect to two different stories of the same incident. It is submitted that opposite party no. 5 is residing with Surendra Kumar Vishwakarma, accused of the earlier Sessions Trial No. 58 of 2007, and just to falsely harass the petitioners, the present FIR has been lodged. He further submitted that lodging of the impugned FIR by opposite party no. 5, would amount to abuse of process of law and the impugned FIR suffers from the vice of mala fide and ulterior motive.
We find force in what has been argued by learned counsel for the petitioners.
Accordingly, it is directed that petitioners shall not be arrested in Case Crime No. 768 of 2009 under Section 376, 307, 323, 504, 506, 147 & 342 IPC of Police Station Jaisinghpur, district Sultanpur till further orders of this Court or till submission of police report under Section 173 Cr.P.C., whichever is earlier.
Order Date :- 22.1.2010 anb