Allahabad High Court
Kamal Kishor And 5 Others vs State Of U.P. And Another on 16 December, 2020
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9375 of 2020 Applicant :- Kamal Kishor And 5 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohd. Ayub Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Heard Mohd. Ayub, learned counsel for the applicants, Ms. Anjali Upadhyay, learned A.G.A. for the State and perused the record.
The instant application has been filed before this Court with the following prayers:
" It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to grant anticipatory bail to the accused/applicants in Case Crime No. 190 of 2020, Under Section 323, 498A, 504, 506 I.P.C. and 3/4 D.P. Act, Police Station Linepaar, District Firozabad, during the pendency of the investigation of the case by the Police, otherwise the applicants shall suffer irreparable loss and injury."
Learned counsel for the applicants states that the applicants had previously filed a Crl. Misc. Writ Petition No. 15083 of 2020 which has been dismissed vide order dated 8.12.2020 on the ground of Apex Court judgment. The disclosure has been made in paragraph 2 which is quoted hereinbelow:
"The present writ petition has been filed by the petitioners, namely, Jafar Malik, Jakir Malik, Yamin, Shahhasan, Shoyeb and Deep Shukla, seeking quashing of the First Information Report of Case Crime No. 661 of 2020 under sections 376, 323, 504, 506, 392, 120-B I.P.C. and 3 (2) (V) S.C./S.T. Act, police station Gajraula, District Amroha with a further prayer to stay the arrest during the pendency of the investigation of the said case."
The said disclosure is erroneous. The said writ petition has been dismissed on merits by a Division Bench of this Court vide order dated 8.12.2020. The said order is extracted hereinbelow:
"Heard Sri S.K. Tiwari, learned counsel for the petitioners, Sri Gaurav Pratap Singh, learned Brief Holder for the State and perused the First Information Report and the material on record.
The present writ petition has been filed by the petitioners, namely, Jafar Malik, Jakir Malik, Yamin, Shahhasan, Shoyeb and Deep Shukla, seeking quashing of the First Information Report of Case Crime No. 661 of 2020 under sections 376, 323, 504, 506, 392, 120-B I.P.C. and 3 (2) (V) S.C./S.T. Act, police station Gajraula, District Amroha with a further prayer to stay the arrest during the pendency of the investigation of the said case.
Learned counsel for the petitioner argued that earlier the victim had lodged an F.I.R. against petitioner no. 1 which was registered as case crime no. 143 of 2020 under sections 376, 323, 506 I.P.C. and 3 (2) (V) S.C./S.T. Act in which petitioner no. 1 got anticipatory bail by this Court vide order dated 30.5.2020 passed in Crl. Misc. Anticipatory Bail Application No. 2674 of 2020 copy of which is annexed as annexure-3 to the present petition. Thereafter, the victim-respondent no. 4 lodged the present F.I.R. against petitioner no. 1 and his family members including one Deep Shiksha, who is employer of petitioner no. 1 in Sanjeeveni Hospital levelling false and frivolous allegation just for harassment, hence the impugned F.I.R. is liable to be quashed.
Learned Brief Holder for the state opposed the prayer for quashing of the First Information Report and argued that from the perusal of the First Information Report, a cognizable offence is made out against the petitioner, and therefore, the present writ petition be dismissed.
The Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P. and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case.
Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.
From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. Hence, no ground exists for quashing of the F.I.R. or staying the arrest of the petitioners.
Accordingly, this writ petition fails and is dismissed.
The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
Since the prayer for quashing of the first information report and stay of the arrest of the petitioner during the pendency of the investigation has been declined by a Division Bench of this Court, this Court is not inclined to interfere in the present application under Section 438 Cr.P.C.
The application under Section 438 Cr.P.C. is, thus, rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal, J.) Order Date :- 16.12.2020 CS