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2010 DIGILAW 793 (ALL)

MANISH KUMAR SIDDHARTH v. STATE OF U. P.

2010-03-10

IMTIYAZ MURTAZA, NAHEED ARA MOONIS

body2010
JUDGMENT Hon’ble N.A. Moonis, J.—By means of this petition, the petitioner has challenged the first information report registered at Case Crime No. 40 of 2010 under Section 395, I.P.C. police station Badalpur, District Gautam Budh Nagar. 2. Heard learned counsel for the petitioner, learned A.G.A for the State and perused the allegations of the impugned F.I.R. 3. The first informant is the owner of Truck No. UP 30 A-6427 which was carrying iron scrap of Pawan Kumar and others for transporting the same to M/s Shankar Enterprises 120/17 Tikambarpur Ghaziabad on 14.1.2010. The value of iron scrap weighing 59.5 quintals was Rs. 1,55,000/-. According to the allegations contained in the F.I.R. the Truck was being driven by Mohd. Yamin and on 15.1.2010 and when the said Truck reached near Centre Parade at 11 a.m. the employees of Sri Ram Transport Company who had financed the Truck stopped the Truck and forcibly took away the Truck along with key and other papers relating to the truck and cash Rs. 11.000/- which was given to the driver for route expenses. 4. Learned counsel for the petitioner submits that the petitioner being financer and full right to respossess the Truck and he cannot be prosecuted for the offence under Section 395, I.P.C. In support of his submission, learned counsel for the petitioner placed reliance on the decision of Apex Court in the case of Trilok Singh and others v. Satya Deo Tripathi, AIR 1979 SC 850 . In the said case the summons issued against the financer were quashed by the Apex Court on the ground that the proceeding initiated was clearly an abuse of process of the Court. It was further observed that the dispute raised by the respondent was purely of civil nature even if it is assumed that the facts stated by him were substantially correct. Another decision relied by the counsel for the petitioner is Charanjit Singh Chadha v. Sudhir Mehra, in which the Apex Court relying upon the case of Trilok Singh (supra) quashed the proceedings of the said case. Learned counsel for the petitioner also placed reliance in the case of Manager lCICI Bank Ltd. v. Prakash Kaur and others, AIR 2007 SC 1349 the Apex Court has held that where the repossession of the vehicle by the financer by hiring muscle men was deprecated. 5. Learned counsel for the petitioner also placed reliance in the case of Manager lCICI Bank Ltd. v. Prakash Kaur and others, AIR 2007 SC 1349 the Apex Court has held that where the repossession of the vehicle by the financer by hiring muscle men was deprecated. 5. On the contrary learned A.G.A. submits that from perusal of the allegations made in the F.l.R. a cognizable offence is clearly made out against the petitioner. 6. We have perused the allegations of first information report and the decisions cited by the learned counsel for the petitioner. The allegations against the petitioner substantially is that the Truck along with iron scrap valuing Rs. 1,55,000/- and cash Rs. 11,000/- was forcibly snatched from the possession of the driver of the Truck and it cannot be said that no criminal offence is disclosed. This is not a case where financer has only repossessed the vehicle. 7. The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. and others, 2006 (56) ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. and others, 2000 Cr. L.J. 569 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 as laid down by the Apex Court in various decisions including State of Haryana v. Bhajan Lal and others, AIR 1992 SC 604 attended with further elaboration that observations and directions contained in Joginder Kumar’s case (Joginder Kumar v. State of U.P. and others, (1994) 4 SCC 260 contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under Article 226 and the same are intended to be observed in compliance by the Police, the breach whereof, it has been further elaborated, may entail action by way of departmental proceeding or action under the contempt of Court Act. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the constitution as an alternative to anticipatory bail which is not invocable in the State of U.P. attended with further observation that what is not permissible to do directly cannot be done indirectly. 8. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the constitution as an alternative to anticipatory bail which is not invocable in the State of U.P. attended with further observation that what is not permissible to do directly cannot be done indirectly. 8. The learned counsel for the petitioners has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case. 9. Having scanned the allegations contained in the F.I.R. the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and/therefore no ground is made out warranting interference by this Court. 10. The petition is accordingly dismissed.