The High Court observed the writ petition was not maintainable due to prior disposition on similar cause of action and lack of new grounds. The petitioner agreed to drop the petition.
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Court No. - 74 Case :- CRIMINAL MISC. WRIT PETITION No. - 7015 of 2022 Petitioner :- Dr. Dev Narayan Shukla Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Varad Nath,Hariom Kamal Singh Counsel for Respondent :- G.A.
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Hariom Kamal Singh holding brief of Sri Varad Nath, learned counsel for the petitioner, Sri K.K. Dwivedi, learned counsel for the informant/respondent no. 2 and learned A.G.A. for the State-respondents.
This writ petition has been preferred for the following reliefs:
"(i) Issue a writ order or direction in the nature of certiorari quashing Section 377 I.P.C. from the charges levelled against the petitioner in First Information Report dated 16.01.2020 registered as Case Crime No. 0005 of 2020, under Sections 498-A, 323, 504, 506, 377, 354, 406, 313, 307, 120-B, 420 of I.P.C. and 3/4 of Dowry Prohibition Act, Police Station- Mahila Thana, District Agra.
(ii) Issue a writ, order or direction in the nature of mandamus directing and commanding the respondent no. 1 and 3 to conclude the investigation in Case Crime No. 0005 of 2020, registered in Police Station- Mahila Thana, District Agra in a free and fair manner."
Learned counsel for the respondent no. 2 raised preliminary objection regarding the maintainability of the writ petition on the ground that for the similar cause of action the petitioner has already invoked the remedy under Article 226 of the Constitution of India, by filing Criminal Misc. Writ Petition No. 2146 of 2020 (Dev Narayan Shukla and 10 others Vs. State of U.P. and 3 others) before the Coordinate Bench of this Court and the same was disposed of vide order dated 07.02.2020 with following observations:-
"Heard Sri Dinesh Mishra, learned counsel for the petitioners and Sri S.R. Pandey, the learned A.G.A.
This writ petition has been filed, seeking a writ of mandamus, directing the respondent concerned, not to arrest the petitioners, with a further prayer for quashing the impugned FIR dated 16.01.2020 registered as Case Crime No. 0005 of 2020, under Section 498A, 323, 504, 506, 377, 354, 406, 313, 307, 120-B, 420 I.P.C. and 3/4 D.P. Act, Police Station Mahila Thana, District Agra.
Learned counsel for the petitioners submits that FIR has been lodged on false / vexatious / mischievous allegations, no offences are made out, FIR be quashed.
Learned AGA has opposed the submission.
After having heard learned counsel for the parties and perusing the impugned FIR as well as the other material brought on record, it cannot be said that prima facie no offence is made out against the petitioners. Therefore, the prayer for quashing the FIR is refused.
However, we dispose of this writ petition with the direction that investigation of the aforesaid case shall go on but the petitioner no.5-Brij Vallabh Shukla shall not be arrested in the aforesaid case till the submission of police report under Section 173(2) Cr.P.C., subject to his cooperation during investigation and we deem it appropriate to dismiss this petition without prejudice to the right of petitioner nos.1 to 4 & 6 to 11 apply for anticipatory bail in accordance with law, in light of the notification No.1058/79-V-119-1 (Ka)-20-2018 dated 6th June 2019."
Thereafter, Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 671 of 2021 (Dr. Dev Narayan Shukla Vs. State of U.P.) has also been filed by the petitioner before the Coordinate Bench of this Court and the same has been dismissed as not pressed vide order dated 28.01.2021 with following observations:-
"Heard Mr. Raghubir Singh, learned counsel for the applicant, Mr. Vinay Saran, learned Senior Counsel assisted by Ms. Vatsala, learned counsel for the first informant and learned Additional Government Advocate representing the State.
At the very outset, Mr. Raghubir Singh submits that he does not want to press this application and he may be permitted to withdraw the same with liberty to approach before the concerned court below.
The aforesaid request of learned counsel for the applicant, has not been objected from other sides.
In view of above, present application is rejected as not pressed with liberty to the applicant to file an application under Section 438 Cr.P.C. before the concerned court below."
It is submitted by learned AGA that without availing the remedy as provided in the aforesaid order and more so once earlier criminal misc. writ petition for similar cause of action has already been disposed of, present writ petition is not maintainable.
The Court has proceeded to examine the record in question and find substance in the objection raised by learned AGA.
Confronted with this, learned counsel for the petitioner fairly states that he is not inclined to press the present writ petition. In view of this, the writ petition is dismissed as not pressed.
Order Date :- 9.6.2022 Ishan
Digitally signed by ISHAN JAISWAL Date: 2022.06.14 12:53:40 IST Reason: Location: High Court of Judicature at Allahabad
Dr. Dev Narayan Shukla
State Of U.P.
Mahesh Chandra Tripathi
Sanjay Kumar Pachori
As recorded by the court registry
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