Allahabad High Court
Santosh Kumar vs State Of U.P. Thru. Prin. Secy. Home And ... on 28 February, 2023
Bench: Ramesh Sinha, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 1608 of 2023 Petitioner :- Santosh Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Petitioner :- Mirza Shariq Aziz Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Narendra Kumar Johari,J.
(1) Heard Shri Nandit Srivastava, learned Senior Advocate assisted by Shri J.P. Awasthi and Shri Mohd. Ibrahim, learned counsel for the petitioner, Shri Shiv Nath Tilhari, learned Additional Government Advocate-I, for the State/respondents No.1 and 2 and perused the material brought on record.
(2) The present writ petition has been filed by the petitioner, Santosh Kumar, with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report along with all consequent proceedings which has been registered at Police Station - Karvi Kotwali Nagar, District - Chitrakoot, as Crime No.0088 of 2023, dated 11.02.2023, under Sections 387, 222, 186, 506, 201, 120-B, 195-A and 34 of Indian Penal Code, 1860 and Sections 42 B and 54 of the Prisons Act and Sections 7, 8 and 13 of the Prevention of Corruption Act, 1988.
(3) It transpires that the impugned F.I.R. has been lodged on the application of S.I. Shyamdeo Singh, Incharge Chowki Rangauli, Police Station Kotwali Karvi on 11.02.2023 at 04:20, alleging therein that informer had informed the complainant that Abbas Ansari, who is the son of infamous gangster Mukhtar Ansari incarcerated in Banda Jail and is MLA from Mau, is languishing in Chitrakoot Jail in connection with various serious crimes. The wife of Abbas Ansari, namely, Nikhut Bano and his driver Niyaz came to jail for the last several days at around 11:00 a.m. every day and spent 3-4 hours inside the jail without any ticket and without any hindrance. While staying in Chitrakoot Jail, Abbas Ansari threatens the witnesses of the case and the officials connected with the prosecution with his wife's mobile phone and through this, he also demands money by threatening people from his wife's mobile. The wife of Abbas also gives all kinds of gifts, money and allurements to the jail officials/employees for free access to the jail and for providing facilities to Abbas. Niyaz, the driver of his wife Nikhat Bano, plans to escape Abbas from jail with the help of jail officials and staff. On the basis of the aforesaid information, at around 01:00 p.m., the District Magistrate and Superintendent of Police, Chitrakoot as well as the complainant arrived in a private vehicle in plain clothes and suddenly started checking in the jail. During checking, it was found that Abbas Ansari was not in his assigned barrack. The Jail Superintendent and Jail personnel misled by not giving expected co-operation during checking. When asked strictly by the District Magistrate and the Superintendent of Police, the jail officials were told by a prison employee that Abbas was with his wife in the room next to the office of Jail Superintendent. When the locked room was opened by the District Magistrate and Superintendent of Police, the wife of Abbas, namely, Nikhat Bano was found present in the room. On searching the belongings of Nikhat Bano, a bag was found in her possession, in which two mobile phones and two rings of yellow metal like gold, two nose pins, two bracelets, two chains and cash Rs 21000 and 12 riyals were recovered.
(4) Learned counsel for the petitioner has argued that the petitioner is not named in the impugned F.I.R. He argued that the petitioner was posted as Jailor in District Jail, Chitrakoot since 19.07.2021. The allegations made in the impugned F.I.R. against the petitioner are absolutely frivolous because pursuant to the letter of Jail Headquarter, Alambagh, Lucknow dated 06.02.2023 (Annexure no.2) as well as on the direction of the Superintendent, Chitrakoot dated 07.02.2023 (Annexure no.3), the petitioner went to two days' training programme at Lucknow from 08.02.2023 to 09.02.2023 and one Mr. Piyush Pandey, Deputy Jailor, Chitrakoot District Jail, was assigned the duty of the petitioner on 07.02.2023 in Chitrakoot Jail. After completion of training, the petitioner obtained the completion certificate of training on 09.02.2023 from Dr. Sampoorna Nand Jail Training Centre, Lucknow (Annexure no.4) and reached back to Chitrakoot and resumed his duty at around 07:19 p.m. on 10.02.2023. On resuming duty, the petitioner came to know about the incident that took place in the afternoon of 10.02.2023. His submission is that the petitioner has not done any of the alleged act as mentioned in the impugned F.I.R. and the petitioner has falsely been implicated in the case as at the time of inspection of Jail, the petitioner was not present in Chitrakoot Jail and did not resume the duty as at that relevant time, he was returning back from Lucknow to Chitrakoot and in the way, his vehicle went out of order and after repairing it, he went to Chitrakoot and joined the duty in the evening of 10.02.2023. He further argued that after lodging the impugned F.I.R., the petitioner was suspended from his duty and was attached to Dr. Sampoornanand Jail Training Institute, Lucknow by means of suspension order dated 11.02.2023 (Annexure No.6). Hence the impugned F.I.R. is liable to be quashed.
(5) Learned Additional Government Advocate-I, on the other hand, opposed the submissions advanced by learned Counsel for the petitioner and submits that wife of accused Abbas Ansari was allowed by the Jail authorities illegally to meet Abbas Ansari, who was planning to get the said accused out of jail by illegal means. He argued that the inspection of the jail was made on the basis of the information of the informer that the Jail authorities without following the due procedure provided in jail manual has permitted the wife of accused Abbas Ansari to meet the accused Abbas Ansari and with the mobile of his wife, accused Abbas Ansari has threatened the witnesses and plan to escape from jail. During investigation, the involvement of the petitioner was also found and as such, the name of the petitioner has also been included in the array of the accused and a departmental enquiry was instituted against the petitioner by suspending him. He further submits that the name of the petitioner has wrongly been mentioned in the F.I.R. as "Sushil Kumar", though his name is "Santosh Kumar", who has posted as Jailor, in the District Jail, Chitrakoot. The aforesaid correction in the impugned F.I.R. has already been made. He further argued that from perusal of the impugned F.I.R., it cannot be said that no cognizable offence is made out against the petitioner.
(6) So far as the question of plea of alibi is concerned, learned AGA has argued that it is a defence of the petitioner, which is required to be proved by the petitioner by leading cogent evidence or the same could only be ascertained by thorough investigation by the Investigating Officer and at this stage, when the investigation is at initial stage, it cannot be said that the petitioner is not involved in the commission of the offence. He also argued that in the impugned FIR, not only, name of the petitioner and other accused persons are mentioned, but also involvement of the petitioner in helping the accused Abbas Ansari and his wife Nikhat Bano has been mentioned as Nikhat Bano was found in the room next to the office of Superintendent of Jail, District Jail, Chaitrakoot and without the help of officials of the jail, it cannot be possible that wife of the accused Abbas Ansari who is languishing in District Jail, Chitrakoot could reach to the room situated next to the office of the Superintendent of Jail, District Jail, Chitrakoot, hence the writ petition is liable to be dismissed.
(7) We have examined the submissions advanced by the learned Counsel for the parties and gone through the impugned F.I.R. as well as material brought on record.
(8) So far as the petitioner is concerned, the name of the petitioner in the impugned FIR as ''Sushil Kumar' Deputy Jailor, District Jail Rangauli, Karvia' has wrongly been mentioned and when this defect came to the knowledge, immediately the name of the petitioner has been corrected as ''Santosh Kumar' in place of ''Sushil Kumar' in the impugned F.I.R. It appears that the petitioner is named in the impugned F.I.R.
(9) So far as the question of alibi is concerned, it is well established principle of law that the burden heavily lies on a person who tries to take the benefit of plea of alibi. He has to prove the same by leading cogent evidence and not by preponderance of probabilities.
(10) The contention of the petitioner is that as the petitioner went for training at Lucknow pursuant to the direction of the Superintendent of Police, Chitrakoot from 08.02.2023 to 09.02.2023 and after completion of the training, the petitioner joined the duty on 10.02.2023 in the evening and the surprise inspection of the Jail as alleged in the impugned F.I.R. was made in the afternoon of 10.02.2023 and the petitioner was not present at that relevant time, hence the petitioner has falsely been implicated in the instant case. To substantiate his submission, the petitioner has annexed the letter dated 06.07.023 and the letter dated 07.02.2023 as Annexure Nos. 2 and 3, respectively, and also the certificate for completion of training from 08.02.2023 to 09.02.2023 as Annexure no.3. The petitioner has also annexed the receipt of repairing his vehicle while returning from Lucknow to Chitrakoot dated 09.02.2023 as Annexure no.5. Placing reliance upon the aforesaid documents, learned Counsel for the petitioner has contended that as the petitioner was not present at the time of inspection of the jail in District Jail, Chitrakoot, therefore, the petitioner has falsely been implicated in the instant case.
(11) It transpires from the impugned F.I.R. coupled with the suspension order of the petitioner contained in Annnexure no.6 that apart from other allegations levelled against other co-accused, the main allegation against the petitioner is that the petitioner, while discharging the duty before going for training, has permitted the wife of accused Nikhat Bano, who is the wife of the accused Abbas Ansari, along with his driver Niyaz to enter into jail premises illegally and permitted to meet with accused Abbas Ansari along with her mobile phone. Taking into consideration the aforesaid allegations made in the impugned F.I.R., prima facie, we find that it is a matter of investigation by which it can be ascertained as to whether the petitioner was involved in the alleged incident as enumerated in the impugned F.I.R. or not and at this stage, when the investigation is at preliminary stage, this Court cannot examine the authenticity of the documents placed reliance by the petitioner. Moreso, it is also well established principle of law that this Court while exercising the powers under Section 226 of the Constitution of India cannot conduct a detailed and roving enquiry into the correctness of the allegations made in the impugned F.I.R.
(12) At this juncture, it would be apt to mention that the legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C.
(13) In the well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, the Apex Court held that those guidelines should be exercised sparingly and that too in the rarest of rare cases. Guidelines are as follows:
"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety to do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 156(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
(14) In case of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed.
(15) In Neharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others : 2021 SCC OnLine SC 315, the Apex Court has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an F.I.R./complaint, quashing of which is sought, the Court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the F.I.R./complaint. The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the Court to be cautious. The Apex Court has emphasized that though the Court has the power to quash the F.I.R. in suitable cases, the Court, when it exercises power under Section 482 Cr.P.C., only has to consider whether or not the allegations of F.I.R. disclose the commission of a cognizable offence and is not required to consider the case on merit.
(16) In State of Orissa v. Saroj Kumar Sahoo : (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCCp. 550, para 11) "11......It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."
(17) From the above stated case laws, it is apparent that the above stated contentions raised by the learned counsel for the petitioner cannot be examined by this Court. The adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Article 226 of the Constitution of India. In view of the material on record, it can not be held that the impugned criminal proceedings are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. FIR or criminal proceedings can be quashed only in accordance with parameters laid down by Hon'ble Apex Court in catena of decisions.
(18) In the instant case, from the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. The present petition does not fall in any of such category, wherein, this Court can exercise jurisdiction under Article 226 of the Constitution of India to quash the impugned FIRs. Hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioners.
(19) In view of aforesaid, the petition lacks merit and thus, liable to be dismissed.
(20) The writ petition is, accordingly, dismissed.
(Narendra Kumar Johari,J.) (Ramesh Sinha,J.)
Order Date :- 28.2.2023
ML/Ajit/-