Allowed

Hemant v. State of U.P. and 2 Ors.

Allahabad HC19 Jul 2021CRLP/3963/2021

Case brief

AI extract

What is this about?

This court quashed an FIR lodged under Sections 366 and 506 IPC against the petitioner. Relying on a Section 164 Cr.P.C. statement revealing domestic threats and the victim's voluntary presence, the court held the FIR was malafide and lacked prima facie offence disclosure.

What did the court decide?

The impugned first information report dated 16.5.2021 bearing Case Crime No. 241 of 2021 was quashed.

Hemant Vs State of U.P. and 2 Ors. — Quashing and FIR | Allahabad HC (2021)

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Court No. - 46

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Case :- CRIMINAL MISC. WRIT PETITION No. - 3963 of 2021

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Petitioner :- Hemant Respondent :- State Of U.P. And 2 Ors Counsel for Petitioner :- Paritosh Sukla Counsel for Respondent :- G.A.,Ajeet Singh

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Piyush Agrawal,J.

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Heard Sri Paritosh Shukla, learned counsel for the petitioner, Sri Patanjali Mishra, learned AGA for State-respondents and Sri Ajeet Singh, learned counsel for the informant-respondent no. 3.

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This writ petition has been filed praying for the following reliefs:

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1. Issue a writ, order or direction in the nature of Certiorari for quashing the F.I.R. dated 16.5.2021 bearing Case Crime No. 241 of 2021 under Section 366, 506 IPC, P.S. Phase II, District Gautam Budh Nagar (Annexure No. 1 to writ petition).

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2. Issue a writ order or direction in the nature of mandamus directing the respondent no. 3 not to arrest the petitioner F.I.R. dated 16.5.2021 bearing Case Crime No. 241 of 2021 under Section 366, 506 IPC, P.S. Phase II, District Gautam Budh Nagar.

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By the order dated 2.6.2021, this Court directed the victim to be produced before Chief Judicial Magistrate, Aligarh for recording her statement under Section 164 Cr. P. C. In compliance thereof, the statement under Section 164 Cr. P. C. of the victim namely Rajeshwari wife of the informant -respondent no. 3 was recorded by Judicial Magistrate on 7.6.2021, a copy of which has been sent to this Court by the concerned Chief Judicial Magistrate via email, which is available on record.

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In her statement under Section 164 Cr. P. C., the victim has stated that the petitioner is son of her real maternal uncle and she has gone along with her maternal uncle as well as the petitioner for the reason that the informant - respondent no. 3 used to beat her and she has life threat from him therefore, she came along with her maternal uncle and the petitioner to their house. She further stated that she has no illicit relation with the petitioner, who is her brother. She

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further stated that the impugned F.I.R. has been lodged on false allegations merely for harassment.

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Learned Counsel for the informant-respondent no. 3 has filed counter affidavit today, a copy of which has also been produced before the Court. He referred to paragraph nos. 10 and 14 of the counter affidavit, which are reproduced below:

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"10. That, the contents of paragraph no. 11 & 12 of the writ petition is not correct as stated hence denied, it is submitted that the petitioner is never given moral support of the wife of the informant he alluring her and runaway, the father of Rajeshwari Upadhyay clearly mentioned in his application dated 14.06.2001 that the petitioner is characterless persons. There is no dispute between the petitioner and his wife Rajeshwari Upadhyay, the petitioner given colour this case, the father of Rajeshwari Upadhyay never made any complaint against any where and not presently support the story of the petitioner developed in this case.

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14. That, the contents of the paragraph no. 17 of the writ petition is not correct as stated hence denied, it is submitted that the petitioner misconceived the court and not disclosed that he has already been filed Anticipatory Bail Application No. 2856 of 2021, Hemant Kumar Vs. State, case crime no. 241 of 2021, u/s 366, 506 IPC, P.S. Face III, Gautam Budh nagar, in which previous date has been fixed on 16.7.2021 and next date has been fixed on 27.7.2021, but the petitioner is misleading the court and not disclose about the Anticipatory Bail Application pending in the Court of learned District & Session Judge, Gautam Budh Nagar. A true copy of the Anticipatory Bail Application and order sheet is being filed herewith and marked as Annexure No. CA-2 to this affidavit."

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Learned counsel for the informant-respondent no.3 submits that in view of the averments made in paragraph nos. 10 and 14, the writ petition deserves to be dismissed.

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Learned Counsel for the petitioner submits that the impugned first information report is malicious and has been lodged merely to harass the petitioner by abusing process of law which fact is evident from the statement of the victim recorded under Section 164 Cr P C by the Chief Judicial Magistrate on 7.6.2021.

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Learned A.G.A. submits that there appears to be some matrimonial dispute between the informant-respondent no. 3 and the victim and for that reason the impugned first information report appears to have been lodged.

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We have carefully considered the submissions of learned counsel for the parties.

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The petitioner's father is the real maternal uncle of the victim. As per the statement of the victim recorded under Section 164 Cr P C, she has wilfully gone with her maternal uncle as well as the petitioner to their house for the reason that the informant -respondent no. 3 used to beat her and she has life threat him. The informant-respondent no. 3 was well aware of this fact yet he filed the impugned first information report making false allegations against the petitioner.

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Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 has illustrated certain grounds for interference with a first information report. The relevant paragraphs of the said judgement is reproduced herein below:

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"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to given an exhaustive list of myriad kinds of cases wherein such power should be exercised:-

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(a) 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 do not prima facie constitute any offence or make out a case against the accused;

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(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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 155 (2) of the Code;

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(c) where the un-controverted 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;

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(d) 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;

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(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

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(f) 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

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grievance of the aggrieved party;

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(g) 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."

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Facts of the present case leaves no manner of doubt that a statement of the victim has been recorded on 07.06.2021 by the Chief Judicial Magistrate under Section 164, Cr.P.C. and in her statement she has stated that she has wilfully gone with her maternal uncle and the petitioner to their house for reason that the informant- respondent No.3 used to beat her and she has life threat from him. Under the circumstances, no offence under Section 366, 506 I.P.C. is made out. Even in his counter affidavit, the respondent No.3 has not disputed the facts stated by the victim in her statement recorded under Section 164, Cr.P.C. Thus, the proceedings initiated by the informant respondent No.3 by means of the impugned first information report is manifestly attended with mala fide. Therefore, in view of aforenoted principles laid down by the Apex Court in the case of Bhajan Lal and others (supra) , the impugned first information report deserves to be quashed and is hereby quashed and the writ petition is allowed .

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Order Date :- 19.7.2021 Rahul Dwivedi/-

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Digitally signed by Justice Surya Digitally signed by Justice Piyush Prakash Kesarwani Agrawal Date: 2021.07.20 17:15:16 IST Date: 2021.07.20 17:16:00 IST Reason: Document Owner Reason: Document Owner Location: High Court of Judicature at Location: High Court of Judicature at Allahabad Allahabad

Hemant v. State of U.P. and 2 Ors.

Case brief

What is this about?

What did the court decide?

Hemant v. State of U.P. and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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