Court No. - 51
Case :- CRIMINAL MISC. WRIT PETITION No. - 37353 of 2018 Petitioner :- Saleem Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ravindra Prakash Srivastava Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ghandikota Sri Devi,J.
Heard learned counsel for the petitioner 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.0180 of 2018, under Section 376, IPC, Police Station Walterganj, District Basti.
Learned counsel for the petitioner submitted that the impugned first information report has been lodged by the complainant-respondent containing absolutely false and concocted allegations against the petitioner with the ulterior intention of harassing the petitioner; that initially the FIR was lodged only under Sections 323 and 354 IPC, in which a writ petition was filed before the another Bench of this Court being Writ Petition No. 31177 of 2018, which was disposed of finally with the following observations:-
"The fact of the matter is that till date arrest has not been effectuated and this is mere apprehension of the petitioner that he would be arrested in breach of provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C. Once there is statutory provision provided for then it is always expected that the said provisions would be adhered to and in case there is any violation of the same, complaint can also be made before the Magistrate concerned to remedy the situation.
In view of the above, it is hereby directed that in case arrest of petitioner is to be effectuated and the offence, in which he is wanted, will not entail sentence of more than 7 years, then in that event, concerned police personnel should deal with the matter in compliance of the provisions as contained under Section 41 (1) (b) read with Section 41-A of the Cr.P.C.
It is further provided that in case, the investigation of this case has been completed and police report under Section 173 (2) Cr. P. C. has been filed, the petitioner shall not be entitled to any benefit of this order.
Writ petition stands disposed of."
The contention of the counsel for the petitioner in this second writ petitioner is to the effect that subsequently the police has also added section 376 IPC, on totally baseless and false allegations. The further contention of the counsel for the petitioner is that keeping in view the background of the case, the matter requires a deeper and fair investigation before any arrest can be effected. Further contention of the counsel for the petitioner is that 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 petitioner 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 quashed.
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, hence the impugned F.I.R. is not liable to be quashed.
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.
However, considering the peculiar facts and circumstances of the case and the submissions advanced by learned counsel for the parties, we dispose of this writ petition with the direction that the petitioner shall not be arrested in the aforementioned case till submission of police report under Section 173(2) Cr.P.C. However, petitioner shall participate and co-operate with the investigation and police authorities shall conclude the investigation within three months from the date of production of certified copy of the order.
With the aforesaid observations, the instant writ petition is finally disposed of.
Order Date :- 19.12.2018 VKG