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2016 DIGILAW 3891 (ALL)

Dinesh Rai v. State of U. P.

2016-12-02

RAMESH SINHA, REKHA DIXIT

body2016
JUDGMENT Heard Sri T.M. Khan holding brief of Sri Ramesh Rai, learned counsel for the petitioner and Sri Imran Syed, learned AGA for the State and perused the record. The relief sought in this petition is for quashing of the F.I.R. dated 25.10.2015, registered as case crime no.1115 of 2015, u/s 302, 34, 120-B IPC, P.S. Tarya Sujan, district Kushinagar. Learned counsel for the petitioner submits that the FIR was lodged against unknown persons. It appears that subsequently respondent no.3 moved application in June, 2016 raising suspicion against the petitioner for being involved in the present case along with two other accused persons. The said two co-accused persons have already been granted bail by the competent court, hence present FIR lodged against the petitioner be quashed. Learned AGA opposed the prayer for quashing and vehemently refuted the argument of learned counsel for the petitioner and submitted that the impugned FIR discloses the cognizable offence. 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. 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. The learned counsel for the petitioner 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. After having examined the submissions advanced by learned counsel for the parties and perused the impugned FIR, we are not inclined to quash the FIR. The prayer for quashing the FIR is refused. However, the court below while considering the bail application of the applicant shall consider the fact that the two co-accused have already been granted bail, if the petitioner moved bail application before the court below. With the aforesaid direction, this petition is finally disposed of.