Court No. - 1
Case :- CRIMINAL MISC. WRIT PETITION No. - 3250 of 2018 Petitioner :- Shahzad Ali And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Nitesh Kumar Srivastava,Anjali Singh,Manvendra Nath Singh Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Krishna Pratap Singh,J.
1. Heard Sri N.K. Srivastava and Ms. Anjali Singh, learned counsel for the petitioners, Sri Imran Ullah, learned counsel for the respondent no. 3, Sri Vikas Sahai, learned AGA for the State and perused the impugned F.I.R. as well as material brought on record.
2. This petition has been filed by the petitioners with a prayer to quash the F.I.R. dated 16.11.2015 registered as case crime no. 1081 of 2015 under sections 498-A, 304-B I.P.C. and 3/4 D.P. Act, police station Gauri Bazar, District Deoria.
3. On 12.2.2018 this Court passed the following order:-
"Heard Ms. Anjali Singh, learned counsel for the petitioners and Sri Ashish Pandey, learned A.G.A. for the State and perused the record.
Learned counsel for the petitioners has submitted that the first information report was lodged against the petitioners as well as Mairunnisha (mother-in-law) of the deceased. Petitioner no. 1 is the husband and petitioner no. 2 is the Nanad of the deceased. It is further submitted that there is a dying declaration of the deceased wherein she has stated that it is an accidental burn while she was preparing tea in the kitchen and no one is responsible for the said act. It is further submitted that on 03.09.2015 Doctor Rajesh Yadav recorded the dying declaration of the deceased and stated that the deceased was in a fit state of mind and was able to give statement for which a certificate was also issued by him. It is also submitted that during investigation the Investigating Officer submitted a charge-sheet against the mother-in-law of the deceased namely Mairunnisha on 16.10.2016 and a copy of which has been annexed as Annexure-4 to the writ petition. It is further submitted that the mother-in-law of the deceased has surrendered and has been released on bail by another coordinate Bench of this Court in Criminal Misc. Bail Application No. 1672 of 2017 on 16.01.2017 and the investigation of the petitioner is yet to be pending.
Further it transpires from the record that the FIR was registered on 16.11.2015 and the dying declaration of the deceased was recorded on 03.09.2015 and the present FIR has been lodged on the application under Section 156(3) Cr.P.C. Admittedly, in the dying declaration there appears to be no allegation made against any of the accused including mother- in-law who has been granted bail and the investigation with respect to petitioner is kept pending and more than two years have lapsed the investigation has not been concluded till date.
The Superintendent of Police, Deoria is directed to call an explanation under what circumstances he had filed charge- sheet against the Mairunnisha (mother-in-law) of the deceased while there is no any allegation against the petitioners who are responsible for the death of the deceased. The said explanation should be submitted by the S.P. Deoria by means of his personal affidavit and under what circumstances the investigation has been kept pending for more than two years while there is no allegation against the petitioners in the dying declaration.
List this matter on 27.02.2018.
Till then no coercive action shall be taken against the petitioners. "
4. Thereafter on 12.3.2018 this Court passed the following order:-
"Affidavit of compliance filed today on behalf of the Superintendent of Police, Deoria which is taken on record.
Heard Sri Nitesh Kumar Srivastava and Ms. Anjali Singh, learned counsel for the petitioners Sri Vikas Sahai, learned A.G.A. for the State.
A perusal of para-13 of the compliance affidavit of Superintendent of Police, Deoria shows that one of the co- accused Mahrunnisha was arrested and sent to jail and thereafter remaining two accused persons who are stated to be the petitioners are absconding and concealing themselves in Nepal to which learned counsel for the petitioners has categorically denied on the basis of instructions received from the petitioners but in order to verify the said fact the learned counsel appearing on behalf of the petitioners has stated that he is ready to produce the petitioners before this Court on next date.
In view of the same, we direct the learned counsel for the petitioners to produce the petitioners in person before this Court on the date fixed.
List this matter on 15.03.2018.
Interim order, if any, granted earlier shall continue till the next date of listing. "
5. Thereafter on 15.3.2018 this Court passed the order which reads as under:-
"Sri N.K. Srivastava and Ms. Anjali Singh, learned counsel for the petitioners are present along with Sri Vikas Sahai, learned A.G.A. for the State.
On 12.3.2018 this Court passed the following :-
"Affidavit of compliance filed today on behalf of the Superintendent of Police, Deoria which is taken on record.
Heard Sri Nitesh Kumar Srivastava and Ms. Anjali Singh, learned counsel for the petitioners Sri Vikas Sahai, learned A.G.A. for the State.
A perusal of para-13 of the compliance affidavit of Superintendent of Police, Deoria shows that one of the co- accused Mahrunnisha was arrested and sent to jail and thereafter remaining two accused persons who are stated to be the petitioners are absconding and concealing themselves in Nepal to which learned counsel for the petitioners has categorically denied on the basis of instructions received from the petitioners but in order to verify the said fact the learned counsel appearing on behalf of the petitioners has stated that he is ready to produce the petitioners before this Court on next date.
In view of the same, we direct the learned counsel for the petitioners to produce the petitioners in person before this Court on the date fixed.
List this matter on 15.03.2018.
Interim order, if any, granted earlier shall continue till the next date of listing."
In compliance of the order of this Court dated 12.3.2018, petitioners, namely, Shahzad Ali and Sajra Khatoon are present in the Court today and identified by their counsel Sri N.K. Srivastava and Ms. Anjali Singh.
Thus, the affidavit of compliance filed by the S.P. Deoria on 12.3.2018 stating in para-13 of the said affidavit that the petitioners could not be arrested as they are absconding and concealing themselves somewhere in Nepal, appears to be false on the face of it.
The S.P. Deoria is directed to appear in person before this Court on the next date fixed to show cause as to why the Court should not proceed against him for swearing a false affidavit.
Put up/list the matter on 21st March, 2018 in the additional cause list.
Interim order, if any, granted earlier shall continue until further order.
The presence of the petitioners is hereby dispensed with unless otherwise directed by the Court.
Office is directed to issue a certified copy of this order to the learned A.G.A. free of cost for its compliance."
6. Thereafter on 21st March, 2018 this Court passed the following order:-
"Affidavit of compliance filed by the S.P. Deoria through learned AGA is taken on record.
Heard Sri Nitesh Kumar Srivastava and Ms. Anjali Singh, learned counsel for the petitioners Sri Vikas Sahai, learned A.G.A. for the State.
The S.P. Deoria namely Rakesh Shankar is present in the Court in compliance of the Court's order dated 15.3.2018. It is said in the affidavit of compliance by him that he called an explanation from the I.O of the present case as to why the investigation of the case is pending for the last two years. He further submitted that the erstwhile Investigating Officer namely Shitanshu Kumar, Circle Officer submitted his report disclosing the progress of the investigation in which he stated that the petitioners are not traceable as they are residing in Nepal. In such eventuality, the investigation of criminal case is still pending.
From the perusal of the explanation given by S.P. Deoria in his affidavit that the petitioners have absconded to Nepal and the said averment made by him in the affidavit dated 12.3.2018 in para no.13 was only on the basis of the report submitted by the then Investigating Officer in Parcha No.SCD-
11 dated 25.12.2017 that he interrogated one Anil Kumar Kannaujia and Ram Deen who have stated that the petitioners have fled away in Nepal after the arrest of co-accused Mahrunnisha.
On the basis of the said report, he filed affidavit of compliance on 27.2.2018 mentioning the aforesaid fact in para no.13 of the said affidavit. It is further pointed out in affidavit of compliance that preliminary inquiry against the erring police personnels with regard to pendency of criminal case for last two years was also ordered and the Additional S.P. Deoria has been directed by the S.P. Deoria Ravi Shankar to submit his report at the earliest. The Addl. S.P, Deoria has concluded his preliminary inquiry and submitted his report dated 16.3.2018 before the S.P. Deoria holding therein that the erstwhile three and one present Investigating Officers who are four in numbers, had un-necessarily delayed the completion of the investigation on the part of the latches and as such the deponent has recommended the higher competent authority to take necessary disciplinary action against the police personnel.
The S.P. Deoria has tendered his unconditional apology before this Court for submitting his reply regarding querry made by this Court for the pendency of the investigation for the last two years because of the casual approach of the concerned Investigating Officer on very serious issue and stated that he has also written to the I.G. Gorakhpur Region, Gorakhpur to show cause the concerned Investigating Officer Vijendra Rai and to take appropriate action against him for the misleading and casual investigation without doing deep rooted investigation regarding the accused persons. Copy of the said letter dated 17.3.2018 sent by the S.P. Deoria to I.G. Gorakhpur for taking appropriate action against the I.O. has been annexed as annexure no.2 to the affidavit of compliance.
The S.P. Deoria has further stated that he has also initiated an inquiry by a Senior police officer i.e. Addl. S.P. Deoria to inquiry about the role of the Investigating Officer during the course of investigation and also the reason for which such misleading facts without investigation was incorporated in the case diary vide letter dated 18.3.2018. It was further pointed out in the affidavit of compliance that out of four Investigating Officers of criminal case in question, one Investigating Officer Mr. Nagendra Singh, Circle Officer-Rudrapur was completed his superannuation age of retirement on 31.5.2017.
The S.P. Deoria has further stated that he has been transferred to another district recently and another officer is taking charge in his place and he would inform him about the matter for further course of action in the matter.
From the present affidavit of compliance of S.P. Deoria, it is evident that the other querry of the Court was as to under what circumstances, the charge sheet was submitted against Mairunnisha the mother-in-law of the deceased by the Investigating Officer though as per dying declaration of the deceased, she died accidental death as has been stated by her has not been answered, hence the new S.P. who is taking charge of the present case shall file his personal affidavit by the next date on the issue also.
Sri Nitesh Kumar Srivastava and Ms. Anjali Singh, learned counsel for the petitioners have stated that they have received instructions from co-accused Mairunnisha, the mother-in-law of the deceased that some marriage was scheduled to be held on 21.3.2018 in her family and because of the action being taken by the S.P. Deoria against the erring police officials, they have threatened her also and because of which the marriage has also be postponed but there appears to be no evidence on record regarding the said fact. If any such incident has taken in the family of Mairunnisha, then it would be open for her to file an affidavit along with documentary proof by the next date also.
List/put up the matter on 28.3.2018.
The personal appearance of S.P. Deoria is hereby dispensed with accepting his unconditional apology before the Court.
Interim order, if any, granted earlier shall shall continue until further orders of this Court.
Learned AGA is directed to inform about the pendency of the present petition to respondent no.3 who may also appear in the matter in person or through the pleader on the next date . "
7. Learned counsel for the petitioners submits that the petitioners are the husband and Nand of the deceased and as per the dying declaration of the deceased no allegation has been levelled against any person and she died an accidental death while preparing tea in the house. The genuineness of the dying declaration cannot be doubted as the same has been recorded by the Naib Tehsildar and fitness certificate has been given by the doctor of District Hospital, Deoria and the present F.I.R. has been lodged on the basis of application under section 156 (3) Cr.P.C. on 16.11.2015 just for the harassment of the petitioners and their family members, hence the same is liable to be quashed.
8. Learned counsel for respondent no. 3 submits that the veracity of the dying declaration may be enquired into by the Investigating Officer.
9. Considering the facts and circumstances of the case and the submissions advanced by learned counsel for the parties and perusing the record, we are of the view that as the deceased died on account of accidental burn while she was preparing tea at the house as her clothes caught fire. The dying declaration of the deceased was recorded by the Naib Tehsildar on 3.9.2015 and Dr. Rajesh Yadav, Emergency Medical Officer, District Hospital, Deoria has given fitness certificate before and after recording the dying declaration. Though it appears from the record that charge-sheet has been submitted against the mother- in-law of the deceased, namely, Mehrunnisa and no charge- sheet was submitted against the petitioners for two years and the matter was kept pending investigation and during the course of investigation also it appears that the dying declaration of the deceased was not questioned by the Investigating Officer. The present F.I.R. appears to have been registered on 16.11.2015 on the basis of application under section 156 (3) Cr.P.C. though the incident has taken place on 3.9.2015 and the last rites of the deceased was also performed in the presence of the family members of the deceased. The mother-in-law of the deceased has been granted bail by this Court on 16.1.2017 considering the fact that there was no allegation against any persons in the dying declaration of the deceased. It appears that respondent no. 3 just to harass the petitioners and their family members has lodged the present F.I.R. on the basis of application under section 156 (3) Cr.P.C. which is an afterthought. Moreover, it appears from the various orders of this Court that four investigating officers were found to be at fault by the S.P. Deoria for keeping the investigation pending for the last two years against the petitioners for which a disciplinary enquiry has been ordered which is pending against them. The S.P. Deoria on 21.3.2018 has also not been able to give any explanation in his affidavit stating as to how charge-sheet has been submitted against the mother-in-law of the deceased though there was no allegation against her in the dying declaration. On 21.3.2018, the S.P. Deoria has informed the Court that in the preliminary enquiry four investigating officers were found to be at fault for keeping the investigation pending against the petitioner for two years by the Additional S.P. Deoria, hence he recommended the competent authority to take disciplinary action against them which is pending. The role of the investigating agency in the present matter also does not appear to be a fair one and the charge-sheet which was submitted against the mother-in-law of the deceased also was due to unfairness of the investigating agency, hence the impugned F.I.R. along with its all consequential proceedings including the charge-sheet which was submitted against the mother-in-law of the deceased, namely, Mehrunnisa is hereby quashed and the writ petition is allowed.
10. There shall however be no order as to costs.
11. The S.P. Deoria is directed to inform this Court about the outcome of the enquiry as soon as it is received by him through Registrar General which shall be placed before us in Chamber at the earliest.
12 Copy of the order may be given to learned A.G.A. free of cost for its compliance.
(Krishna Pratap Singh, J.) (Ramesh Sinha, J.) Order Date :- 28.3.2018 Shiraz