Allahabad High Court
Km. Arju @ Arzoo And Another vs State Of U.P. And Another on 11 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:163739 Court No. - 35 Case :- APPLICATION U/S 482 No. - 29554 of 2023 Applicant :- Km. Arju @ Arzoo And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anshu Singh,Hemendra Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Heard Sri Hemendra Pratap Singh, learned counsel for the applicants, Sri Rajeev Pandey, learned A.G.A. for the State and perused the material brought on record.
This application under Section - 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 23040 of 2021 (State vs. Kalu @ Yogendra and others), arising out of Case Crime No. 0065 of 2021, under Section - 174-A I.P.C., Police Station - Naujheel, District - Mathura, pending in the Court of Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Court No.2, Mathura as well as impugned charge-sheet dated 12.03.2001 and the impugned cognizance order dated 27.09.2021, passed by the Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Court No.2, Mathura.
The case of the applicants is that a first information report was lodged against the applicants, who are two in number as well as 12 others at Police Station - Nauhjheell, District ? Mathura, being F.I.R. No. 0780 on 18.09.2018 at 12:01 hours by one Sri Chandra Pal Singh, son of Dumar Singh purported to be under Sections - 147, 148, 436, 307, 427, 323, 506, 120-B and 452 I.P.C.
The applicants claimed to have preferred a Criminal Misc. Writ Petition No. 32683 of 2018, in which following orders were passed on 15.11.2018 :-
"Heard learned counsel for the petitioners and learned A.G.A. for the State.
This writ petition has been filed by the petitioners to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 18.09.2018 registered as Case Crime No. 780 of 2018, under Sections 147, 148, 436, 307, 427, 323, 506, 120-B, 452 I.P.C., P.S. Naujheel, District Mathura.
Learned counsel for the petitioners submitted that petitioner nos. 1 to 4 are the cousin sisters, fathers of the petitioner nos. 1 to 4 are real brothers, husband of petitioner nos. 5 and 6 are also the real brothers of the fathers of petitioner nos. 1 to 4. The impugned F.I.R. has been lodged by the respondent no. 3 containing absolutely false and concocted allegations against the petitioners roping in the entire family members of Yogendra Singh, Khellan, husband of petitioner nos. 5 and 6 and co-accused Gyani Singh, father of petitioner nos. 3 and 4. The role of the petitioners who are the ladies is clearly distinguishable from that of the other co-accused. Moreover apart from the bald allegations made in the impugned FIR, there is credible evidence on record even even prima facie supporting the prosecution case against the petitioners and hence the impugned FIR is liable to be quashed.
Per contra learned A.G.A. submitted that from the perusal of the impugned FIR and on the basis of the allegation made therein, it cannot be said that no cognizable offence is disclosed against the petitioners.
After having heard learned counsel for the parties present and perused the impugned FIR, we are not inclined to quash the same.
However, considering the peculiar facts and circumstances of the case, we direct that investigation of the aforesaid case shall go on but the petitioners shall not be arrested till the submission of police report under section 173(2) Cr.P.C. subject to their extending full co-operation during investigation.
With the aforesaid direction, this petition is finally disposed of."
According to the learned counsel for the applicants, now the impugned first information report has been lodged against the applicants by the opposite party no.2 at the same police station being F.I.R. No. 0065 of 2021, dated 20.02.2021 at 18:41 hours against the applicants, who are two in number and one Sri Yogendra alias Kalu, with an allegation that in pursuance of the first information report lodged at Case Crime No. 780 of 2018, the proceedings under Section - 82 of the Cr.P.C. was initiated on 05.01.2021 and summons were issued by the Chief Judicial Magistrate, Mathura, which was effectuated upon the applicants on 15.01.2021, but the applicants did not appear before the court concerned on the said date.
Learned counsel for the applicants thus submits that the impugned proceedings are wholly insustainable in law, as the applicants herein possesses an order passed in their favour in Criminal Misc. Writ Petition No. 32683 of 2018 (Arju and 5 others vs. State of U.P. and 2 Others), wherein though direction was issued to the investigating agency to conduct the investigation, but the applicants herein, who are petitioners therein were not to be arrested till the submission of the police report, under Section 173(2) Cr.P.C.
He submits that as per the summoning order dated 17.08.2021, the charge-sheet was submitted before the court below on 17.08.2021 and their first information report has been lodged even prior to it i.e. on 20.02.2021, which is much prior. He submits that till the submission of the charge sheet, the applicants were protected and armed with the order of Writ Court in Criminal Writ Petition and thus by no stretch of imagination, any process under Section - 82 Cr.P.C. could have been issued and further, there was no question of lodging of the first information report. Learned counsel for the applicant submits that now non-bailable warrants have been issued on 27.06.2023.
Sri Rajeev Pandey, learned A.G.A. for the State on the other hand submits that though on the basis of the documents available on record, he does not dispute the facts that the applicants herein had been granted interim protection in Criminal Misc. Writ Petition No. 32683 of 2018 on 15.11.2018 restraining the police authorities from arresting them till the submission of the police report under Section 173(2) of the Cr.P.C. However, in view of the recital contained in the summoning order dated 17.08.2021, the charge-sheet was submitted on the said date. Thus, according to him prima facie, the first information report could not have been lodged under Section - 174 (A) I.P.C. on 20.02.2021. He further submits that in the facts and circumstances of the case, let the applicants prefer a discharge application before the court below and till the decision on the discharge application, the applicants would not be arrested in the aforesaid case.
Considering the submission of the rival parties as well as the stand taken by them, the application is being disposed off granting liberty to the applicants to prefer a discharge application before the court below, Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Court No.2, Mathura through counsel within a period of three weeks' from today and the same shall be decided within further next one month period.
Till the disposal of the discharge application, no coercive action shall be taken against the applicants.
Accordingly, the present application stands consigned to record.
Order Date :- 11.8.2023 S Rawat