The High Court dismissed a writ petition seeking quashing of an FIR for attacks on police during lockdown and stayed arrest. The court held the FIR could not be quashed as it disclosed a cognizabole offence and denied the stay of arrest relying on Supreme Court precedent.
Prayer for quashing of FIR and stay of arrest was dismissed.
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Court No. - 35
Case :- CRIMINAL MISC. WRIT PETITION No. - 13719 of 2020
Petitioner :- Ashok And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vikram Singh Counsel for Respondent :- G.A.
Hon'ble Manoj Kumar Gupta,J. Hon'ble Ravi Nath Tilhari,J.
Heard Sri Vikram Singh, learned counsel for the petitioners and learned AGA for the State.
The present writ petition has been filed by the petitioners, praying for quashing of the First Information Report, registered as Case Crime No. 117 of 2020, under Sections 147, 148, 149, 323, 307, 504, 188, 332, 353, 269, 270, 336 IPC, P.S. Goverdhan, District Mathura, with a further prayer to stay their arrest during pendency of investigation of the said case.
The allegation is that during lockdown, the shops were found open and when the police tried to get the market closed, the accused persons attacked the police party with lathi and also hurled stones at it, in which certain police personnels also received injuries. As per opinion of the doctor, all injuries were caused by hard and blunt objects.
Learned AGA opposed the prayer for quashing of the First Information Report and stay of arrest and submitted that from the perusal of First Information Report, commission of a cognizable offence is clearly made out, therefore, the writ petition be dismissed.
We have gone through the allegations in the First Information Report and we find that the same clearly discloses commission of a cognizable offence, consequently, we agree with the submission of learned AGA that the First Information Report cannot be quashed.
In respect of the second prayer made by learned counsel for the petitioners for stay of arrest of the petitioners till submission of the report under Section 173(2) of the Code of Criminal Procedure, 1973, we would like to take notice of the law laid down by Supreme Court in State of Telengana v. Habib Abdullah Jellani; 2017 (2) SCC 779 wherein the Supreme Court has disapproved an order restraining the Investigating Agencies from arresting the accused where prayer for quashing the FIR has been declined. Relying on the said decision, the Supreme Court entertained Special Leave to Appeal (Crl.) No. 4650 of 2020 (Samiksha Singh @ Nikki v. The State of U.P. & Others) wherein similar direction issued by the High Court staying arrest until the submission of report under Section 173(2) Cr.P.C. was under challenge. The order is as follows: -
" 1. Mr Sanchit Garga, learned counsel appearing on behalf of the petitioner, submits that while the High Court declined to quash the FIR, at the same time, it has granted an order protecting the accused from arrest until the submission of the report under Section 173(2) of the Code of Criminal Procedure 1973 which, it has been submitted, is impermissible in law. He relies on a decision of this Court in State of Telengana v. Habib Abdullah Jeelani.
Having regard to the law laid down by Supreme Court in State of Telengana (supra), we also decline to grant the second prayer.
Before parting, we would like to quote the observations made by the Supreme Court in Jogender Kumar Vs. State of U.P., AIR 1994 SC 1349 in relation to personal liberty of a citizen and the manner in which police officer should exercise his power to arrest accused person, so that the same is duly complied with:-
“ A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”
The writ petition is accordingly dismissed with the above observations. This is without prejudice to the right of the petitioner(s) to seek anticipatory bail/bail, in case the situation warrants. If any such recourse is taken, the bail application shall be disposed of expeditiously, without being influenced by any observation made in the instant order.
(Ravi Nath Tilhari, J.) (Manoj Kumar Gupta, J.)
Order Date :- 1.12.2020 Jaideep/-
2 issues framed by the court
Whether the First Information Report disclosing commission of a cognizable offence can be quashed.
Whether an order staying arrest pending submission of report under Section 173(2) Cr.P.C. is permissible after FIR quashing is declined.
Colour shows how this judgement treated each authority
State of Telangana v. Habib Abdullah JellaniApplied¶10
State of Telengana v. Habib Abdullah Jellani; 2017 (2) SCC 779 · Who else cites this
Samiksha Singh @ Nikki v. The State of U.P.Referred¶10
Special Leave to Appeal (Crl.) No. 4650 of 2020 (Samiksha Singh @ Nikki v. The State of U.P. & Others)
Jogender Kumar v. State of U.P.Referred¶15
Jogender Kumar Vs. State of U.P., AIR 1994 SC 1349 · Who else cites this
Ashok And 3 Others
State Of U.P. And 2 Others
Manoj Kumar Gupta
Ravi Nath Tilhari
As recorded by the court registry
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