This High Court dismissed a writ petition seeking quashing of an FIR alleging obstruction of court decree execution. The court held that defence contentions were irrelevant, as the allegations clearly constituted a cognicable offence under IPC.
Writ petition for quashing of FIR dismissed; the FIR is maintained.
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Neutral Citation No. - 2023:AHC:102846-DB
Reserved on 24.04.2023
Delivered on 12.05.2023
Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 3562 of 2023
Petitioner :- Kamlesh Jaiswal Alias Monu Jaiswal And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashwaini Mishra,Dhruv Mishra Counsel for Respondent :- G.A.,Anil Kumar Ray
Hon'ble Anjani Kumar Mishra,J. Hon'ble Ms. Nand Prabha Shukla,J.
Heard learned counsel for the petitioners, learned counsel appearing for the first informant and learned A.G.A. for the State.
The instant writ petition seeks a writ of certiorari for quashing of the FIR dated 13.02.2023 giving rise to Case Crime No.024 of 2023, under Sections 186, 147, 352, 353, 441, 447 I.P.C. and Section 7 of the Criminal Law Amendment Act, 1932, Police Station- Peepri, District- Sonbhadra.
The allegation in the first information report is that the Court Ameen along with Police force went to the spot along with a JCB to execute a decree in pursuance of the order passed in an execution case by the Civil Judge (Senior Division), Sonbhadra. While the decree was being executed and a tin-shed was being demolished, certain persons including the petitioners, arrived on the spot and stopped the execution proceedings. Due to the action of the petitioners and other persons, the decree could not be executed and the JCB was not permitted to be moved from the spot. The Ameen was sought to be assaulted and had to be rescued from the spot with the help of the local Police. All the tyres of the JCB were punctured and the JCB was also damaged by the persons present on the spot.
The contention of learned counsel for the petitioners is that they were opposing the execution of the decree only to the extent demolition was sought to be made beyond the decree. Property which was not required to be demolished under the decree was also sought to be demolished.
The contention of learned AGA is that the presence of the petitioners is established by the photographs filed along with the writ petition. A writ petition filed by the one co-accused has already been dismissed. The decree could not be executed on account of the obstruction of the petitioners.
In rejoinder, the contention of learned counsel for the petitioners is that the writ petition of the co-accused which has been dismissed is distinguishable as that writ petition had been filed by the son of the judgment-debtor. The petitioners have no concern with the decree.
Upon hearing learned counsel for the parties and upon perusal of the first information report, it emerges that the decree which was to be executed could not be executed on account of obstruction and actions of persons including the petitioners. It is, therefore, clear that the petitioners along with other persons have obstructed the Government machinery. For the same reason, the allegations in the FIR constitute ingredients of a cognizable offence.
The submissions that have been made on behalf of the petitioners are their defence. It is settled law that the defence of an accused is not liable to be taken into account while dealing with the writ petition which seeks quashing of first information report. The only aspect to be considered is whether the allegations constitute the ingredients of a cognizable offence. It has already been observed here-in-above that allegations do constitute the ingredients of cognizable offence. Under the circumstances, first information report cannot be quashed.
The writ petition, accordingly, fails and is dismissed.
Order Date :- 12.5.2023 Aditya Tripathi
Digitally signed by :- ADITYA TRIPATHI High Court of Judicature at Allahabad
1 issue framed by the court
Whether the petitioners' obstruction of court decree execution constitutes ingredients of a cognizable offence factually disclosed in the FIR.
2 provisions across 2 enactments
Kamlesh Jaiswal Alias Monu Jaiswal
State Of U.P.
Anjani Kumar Mishra
Nand Prabha Shukla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
