Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2206 (ALL)

Usha Tiwari v. State of U. P.

2016-06-16

K.J.THAKER, SUDHIR AGARWAL

body2016
JUDGMENT : 1. Heard Sri Om Prakash Mishra, learned counsel for petitioners and perused the record. 2. By means of present writ petition, petitioners have sought for a writ of certiorari to quash first information report registered as Case Crime No. 254 of 2016, under Sections 304-B, 498 A IPC and Section 3/4 of Dowry Prohibition Act, Police Station Maharajganj, District Jaunpur. 3. One Shashi Tiwari was married with Santosh Tiwari son of Surya Nath Tiwari on 12.12.2008; though in the FIR, it is said that marriage was solemnized about six years back in a temple. The girl has died due to burn injuries sustained on account of pouring of kerosene oil on 7.5.2016. Deceased's mother Kalawati Devi has lodged aforesaid FIR against husband Santosh Tiwari, Nanad Usha Tiwari, father-in-law Surya Narayan Tiwari and two petitioners. Petitioner-2 is father-in-law of deceased, and petitioner-1 is 'Nanad' of deceased. 4. Sri O.P. Mishra, learned counsel for petitioners submitted that time of marriage has wrongly been stated in FIR. The identity of petitioner2 has not been correctly mentioned in as much as father's name of petitioner-2 has not been disclosed and description of petitioner-1 is also incorrect. Petitioners are residing separately from Surya Narayan Tiwari and his children, after getting constructed their new house which is at some distance from the house of Surya Narayan Tiwari, father-in-law of deceased. The agricultural land of petitioners is also separate from his brother Surya Narayan Tiwari and therefore petitioners have nothing to do with the family of Surya Narayan Tiwari. 5. It is further argued that from the date of marriage i.e. 12.12.2008 more than 7 years have passed on the date of incident i.e. 7.5.2016 and therefore Section 304-B IPC is not attracted. The marriage of deceased was solemnized in 2008 as is also evident from the fact that she had two daughters Anshika and Dipika, born on 15.5.2009 and 26.6.2010. Despite the fact that petitioners have no concern or role in the matter, police is harassing them and threatening to arrest which is patently illegal. Petitioners have six children including one son and five daughters and their arrest by police would disturb peaceful lives of petitioners' family. The husband of deceased also sustained burn injuries which shows that there was no question of killing of deceased by any act of third person but it was an accident for which none is responsible. Petitioners have six children including one son and five daughters and their arrest by police would disturb peaceful lives of petitioners' family. The husband of deceased also sustained burn injuries which shows that there was no question of killing of deceased by any act of third person but it was an accident for which none is responsible. Infact while saving the deceased, husband also sustained certain burn injuries. 6. Initially when deceased was taken to District Hospital, Medical Officer who attended deceased, opined that deceased had sustained 25% burn injuries but in the post mortem report, level of burn injuries has been opined as 100%. Sri Mishra submitted that there is no ground, no material whatsoever to point out guilt of petitioners and therefore if police is allowed to arrest them, it will frustrate justice and would violate fundamental rights of petitioners' life and liberty. 7. Learned counsel for petitioners has argued at length referring to entire documents appended to the writ petition and also placed before us Article 14, 22 & 226 of Constitution of India, Section 41, 157(1) & 167 of Code of Criminal Procedure (herein after referred to "Cr.P.C.") and provisions of Indian Penal Code(hereinafter referred to "IPC") under which FIR has been registered. He contended that no offence under Section 304-B IPC is made out. Even otherwise there are circumstances showing that the allegations of burning of deceased by petitioners and others are incorrect and therefore, FIR in question should be quashed and this Court should protect, in any case, petitioners from probable arrest by police. Reliance has also been placed on a judgment in Asha & another vs. State of Uttarakhand in Criminal Appeal No.1893 of 2013 decided on 1.11.2013, reported in 2014(1) Alld JIC 167. 8. Here in this case, an innocent girl having two children has died of burn injuries to the extent of 100% as reported in post mortem report, in a broad day light on 7.5.2016. Girl's mother has lodged report on 8.5.2016 at about 1 P.M. She has specifically named girl's husband, father-in-law, sister-in-law(Nanad) and two petitioners, uncle(Chacha) and aunt(Chachi), of deceased. 9. It is not a case of petitioners that informant has any malice against petitioners to name them in the report. Girl's mother has lodged report on 8.5.2016 at about 1 P.M. She has specifically named girl's husband, father-in-law, sister-in-law(Nanad) and two petitioners, uncle(Chacha) and aunt(Chachi), of deceased. 9. It is not a case of petitioners that informant has any malice against petitioners to name them in the report. Petitioners in paragraph 27 of writ petition have set up a case that there was no attempt of killing deceased either by petitioners or other family members of Santosh Tiwari meaning thereby, defence taken by petitioners is in respect to all the named accused in FIR and that too at the stage when writ petition has been filed seeking writ of certiorari for quashing first information report, i.e. at a nascent stage. 10. Scope of judicial review is limited to the extent that allegations contained in FIR, if taken to be true on the face value show commission of no cognizable offence, else this Court would not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. Whether accused persons are guilty of committing offence or have any role, is the matter of investigation and not to be judged by this Court in writ jurisdiction under Article 226 of Constitution of India treating matter as a regular trial. It is true that persons' liberty is of utmost importance but when a cognizable heinous crime is committed, it is open to police to arrest a person if the circumstances so justify and it is not for the Court to prepare a chart controlling Investigating Officer in regard to exercise of his statutory power of arrest. 11. It is not pleaded anywhere in the writ petition that police has no jurisdiction or no material before it to proceed with investigation against accused persons. If necessary, it may exercise its statutory power of arrest. 12. Mere assertion that petitioners have apprehension of arrest or that police personnels are coming to the house of petitioners to arrest them are not sufficient to suggest that police is trying to arrest petitioners illegally or with gross abuse of its power. If necessary, it may exercise its statutory power of arrest. 12. Mere assertion that petitioners have apprehension of arrest or that police personnels are coming to the house of petitioners to arrest them are not sufficient to suggest that police is trying to arrest petitioners illegally or with gross abuse of its power. Unless there is proper pleading supported by material to show that police is likely to exercise its power to arrest maliciously, illegally or for the reasons other than bonafide or is violating the guidelines set by the Court in D.K. Basu vs. State of West Bengal reported in 1997(1) SCC 416 , we do not find any justification to pass any order in a writ petition in which prayer for certiorari for quashing FIR is made so as to obstruct statutory function of police in making investigation of heinous crime and process of arrest which is an inherent part of investigation, is not to be interfered lightly or for mere asking. Submission that petitioners have no concern with death of Shashi Tiwari or that nobody has killed her but it was an accidental death, is a matter of investigation which cannot be prejudged by us at this stage. 13. Reference made by learned counsel for petitioners to decision in Asha & another(supra) is thoroughly misconceived in as much as that was a case where after trial, accused were convicted and sentenced to ten years' Rigorous Imprisonment under Section 304-B IPC and judgment was confirmed by High Court. In appeal, Supreme Court acquitted accused for want of compelling evidence sufficient for conviction of accused persons under Section 304-B IPC. In the present case, it is only the stage of investigation when petitioners have come to this Court. Hence aforesaid judgment is not applicable whatsoever to the facts and issues involved in the present case. 14. From perusal of FIR it cannot be said that a cognizable offence has not been committed, if allegations contained therein are taken to be true on the face value. 15. In these facts and circumstances, we find no merit in this writ petition which is totally misconceived and ill advised at this stage. It is accordingly dismissed with cost of Rs.50,000/-which the petitioners shall deposit in Government Treasury within 30 days; failing which District Magistrate concerned shall be entitled to recover as arrears of land revenue. 16. 15. In these facts and circumstances, we find no merit in this writ petition which is totally misconceived and ill advised at this stage. It is accordingly dismissed with cost of Rs.50,000/-which the petitioners shall deposit in Government Treasury within 30 days; failing which District Magistrate concerned shall be entitled to recover as arrears of land revenue. 16. However, before parting we find it appropriate to place on record that here is a case facts whereof justify that police should have acted with due expeditiousness and diligence to investigate the matter. Report has been lodged on 8.5.2016 and it is already more than a month since thereafter. It is an unfortunate case where an innocent girl has died of 100% burn injuries at the residence of her in-laws. Hence police must have completed investigation with due pace and should have reported before concerned Magistrate expeditiously. It should not have kept the matter pending. Speedy investigation is now necessity of time so as to control crime in society. We have no hesitation in observing that those who are responsible for maintaining law and order are not showing their due concern and sincerity for expeditious enquiry, investigation and cooperation in trial so that criminal matters may be concluded with reasonable pace and may prove a real and effective deterrent to criminals. If investigation, inquiry or trial, as the case may be, continues and takes long time in finalization, criminals and law breakers will be encouraged in indulging in such activities frequently with the hope and trust that even in their life time they would not be punished. In the matter of criminal administration of justice, delay at every stage is bound to encourage offenders and frustrate purpose of object of punishment. Innocent members of society will have no option but to live a fearful life. This situation would be a curse on an innocent and law-abiding citizen and will be a boon to offenders. However, at every stage whether executive or judiciary, persons managing system have to show serious concern and diligence so as to cater need of the society in due time. They cannot test patience of people to watch and wait irrespective of any control over a time period in functioning of responsible persons whether in police or judiciary. However, at every stage whether executive or judiciary, persons managing system have to show serious concern and diligence so as to cater need of the society in due time. They cannot test patience of people to watch and wait irrespective of any control over a time period in functioning of responsible persons whether in police or judiciary. They must act and execute their functions and duties with reasonable expeditiousness and pace so that things are done within a reasonable time and prove to be effective yielding positive result to entire society. 17. In this backdrop, we find it appropriate in this particular case to direct Investigating Officer to conclude enquiry/investigation expeditiously and in any case, within two months and submit report to the Magistrate concerned. Further, we also observe that Magistrate having jurisdiction in the matter shall also watch progress in investigation and ensure that guilty persons are not allowed to roam freely due to mere laxity of Investigating Officer. If necessary, Investigating Officer shall not show any hesitation in immediate arrest of accused persons. 18. A copy of this order shall be communicated to respondent-2 as also CJM, Jaunpur forthwith. Registry shall also furnish a copy of this order to the Principal Secretary (Home) for information and compliance of observations made above, by issuing necessary instructions to all concerned in the State.