Allahabad High Court
Devendra Pratap Upadhyay Advocate & ... vs State Of U.P.Through.Prin.Secy.Home & ... on 26 February, 2020
Bench: Anil Kumar, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- MISC. BENCH No. - 5749 of 2020 Petitioner :- Devendra Pratap Upadhyay Advocate & Ors. Respondent :- State Of U.P.Through.Prin.Secy.Home & Ors. Counsel for Petitioner :- Sharad Pathak,Ramendra Mohan Tripathi Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri H.G.S. Parihar, learned Senior Counsel, assisted by Sri Sharad Pathak, learned counsel for the petitioners and Sri S.P. Singh, learned A.G.A.
By means of the present writ petition the petitioners have prayed for following main relief:-
"issue a writ order or direction to the opposite parties in the nature of mandamus, not to harrass and torture the petitioners and family member."
At the very outset, learned counsel for the petitioners submits that he does not want to press this petition on behalf of petitioners No. 2 to 10 and the same may be dismissed as not pressed.
Learned A.G.A. has no objection.
Accordingly, so far as petitioners No. 2 to 10 are concerned, the writ petition is dismissed as not pressed.
At this stage, learned A.G.A. submits that in respect of the incident in question a writ petition (M/B) No. 5468 of 2020 (Vimal Singh Vs. State of U.P.) was filed in which on 22.2.2020 an order has been passed, which reads as under:-
"Heard Dr. V.K. Singh, learned counsel for the petitioner, Sri S.P. Singh, learned Additional Government Advocate and perused the record.
By means of the present writ petitioner, the petitioner has prayed for the followed main relief:-
A. Issue a writ, order or direction in the nature of Certiorari to quashing thereby the impugned First Information Report dated 20.02.2020 lodged by opposite party no. 4 registered as Case Crime NO. 0311 of 2020 under Sections 302 & 427 of I.P.C. at Police Station - Gomtinagar, District - Lucknow so far it relates to petitioner contained in as Annexure NO. 1 to this writ petition.
B. Issue a writ, order or direction in nature of Mandamus commanding the opposite parties not to arrest or harass the petitioner or his family members or take any coercive measure against the petitioner or his family members in furtherance of the impugned first information report mentioned above contained in as Annexure No. 1 to this writ petition."
Learned counsel for petitioner while challenging the impugned F.I.R. submits that from the bare perusal of the impugned F.I.R. the position which emerged out is that the crime in question has been committed by one Arpan Shukla and his friends (not named in the F.I.R.) and there is no evidence whatsoever to the effect that petitioner is involved in the crime.
In order to elaborate his argument, learned counsel for petitioner submits that even complainant/Alok Yadav/respondent No. 4 who has lodged the F.I.R. is not an eye witness, so taking into consideration the said facts, the arrest of the petitioner may be stayed.
He also submits that father of the petitioner/Sri Vinod Kumar Singh was called by the police authorities, in spite of the fact that he is not involved, in any manner, in incident in question and police authorities, is being detained in the police station, are harassing.
In this regard, he has placed reliance on the paragraph Nos. 10 & 11 of the writ petition which on reproduction reads as under:-
"10. That the local police is not only harassing the petitioner but also his entire family members for no fault of their own. The police called tech father of the petitioner on 20.02.2020 at 10 PM to the colic station who as law abiding citizen went there but he was not only detained for the whole night at Gomtinagar Police Station, Lucknow but also was continuously threatened and mentally harassed. The police officers are continuously harassing the family members of the petitioner in connection with the alleged incident in which he is wrongly being framed by the police.
11. That the father of the petitioner was allowed to leave the Police Station, Gomtinagar, Lucknow on 21.02.2020 at 8.30. A.M. The police is making continuous telephonic calls to the petitioner's father to again come to the police station hereby causing tremendous mental agony to the petitioner's entire family."
Accordingly, learned counsel for petitioner submits that the arrest of the petitioner pursuant to the impugned F.I.R. may be stayed and the police authorities may be directed not to harass the father of the petitioner (Sri Vinod Kumar Singh) in any manner.
Sri S.P. Singh, learned A.G.A. on the basis of instructions received to him, placed before us and taken on record, submits that during investigation on the basis of CCTV Footage the petitioner is involved in the matter in question, so the petitioner is not entitled for any interim relief.
He further submits that so far as in respect to harassment of the father of the petitioner (Sri Vinod Kumar Singh), is concerned, he will not be unnecessarily harassed otherwise not involved in any case/crime,however, in the matter in issue he should cooperate in the investigation.
Learned counsel for petitioner has given assurance that father of the petitioner (Sri Vinod Kumar Singh) will cooperate in the investigation.
After hearing learned counsel for parties and going through the record as well as material on record, placed before us,it appears that on the basis of the allegations made therein a prima facie cognizable offence is made out against the petitioner, so the relief as claimed by the petitioner in the present petition cannot be granted under Article 226 of the Constitution of India. (See: State of Harayana and others Vs. Bhajan Lal and others, AIR 1992 SC 604; State of Bihar and another Vs. Md. Khalique and another, 2002 (1) SCC 652 and Girish Kumar Suneja Vs. Central Bureau of Investigation, (2017) 14 SCC 809.
So far as the matter in regard to detention and calling of the father of the petitioner (Sri Vinod Kumar Singh) is concerned, taking into consideration the statement given by Sri S.P. Singh, learned A.G.A. we hereby provide that he should not be unnecessary harassed and detained otherwise if he is wanted in any case, however, he should cooperate in the investigation.
With the above observations, writ petition is dismissed. "
In the light of aforesaid order, learned A.G.A. submits that petitioner No.1, Devendra Pratap Upadhyay, will not be harassed and detained unless he is wanted in any case, subject to his cooperation in the investigation pending against his son.
Sri H.G.S. Parihar, learned Senior Counsel has assured that petitioner No.1 will cooperate in the investigation.
After hearing learned counsel for the parties and going through record, we disposed of this petition with a direction that petitioner No.1, Devendra Pratap Upadhyay, shall not be harassed or detained by the concerned police officer of District- Lucknow, unless he is wanted in any case, provided that he will cooperate in the investigation.
The writ petition is disposed of.
[Virendra Kumar Srivastava, J.] [Anil Kumar, J.] Order Date :- 26.2.2020 Vandana