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2018 DIGILAW 438 (ALL)

PRATEEK GARG v. STATE OF Uttar Pradesh

2018-02-19

A.P.SAHI, RAJEEV MISRA

body2018
JUDGMENT : 1. Heard Sri Rajrshi Gupta, learned counsel for the petitioner who has advanced his submissions contending that this is a clear case where there is absolutely not even an iota of evidence and it is a case of false implication of the petitioner in the incident arising out of the impugned first information report dated 18.11.2017 in Case Crime No.1093 of 2017, police station Farrukhabad Kotwali, district Farrukahabad, under Section 147, 302 I.P.C. 2. Learned counsel while advancing his submissions contends that in relation to the same incident which is alleged to have taken place at about 2.00 p.m. according to the other first information report of the same date that was lodged at about 2.30 p.m. a motor-cycle theft was reported by one Vikas Kumar son of Jwala Prasad alleging that the motor-cycle was sought to be lifted by one Vishal Pathak son of Ramu Pathak resident of Rampura, Rajepur, Fatehgarh, Uttar Pradesh. This is how the description of the alleged accused has been recited in the first FIR that was registered as Case Crime No.1092 of 2017 dated 18.11.2017 and a copy of the said first information report is annexure-3 to the writ petition. The narration in the said first information report is that Vikas Kumar had gone for shopping in V-Mart where he parked his motor-cycle and when he went inside and came after shopping he saw somebody lifting his motor-cycle who was chased and was later-on nabbed and handed-over to the police. Thereafter it appears that Vishal Pathak the named accused in the said first information report died. 3. His father Chandra Mohan Pathak resident of village Bamiyari police station Rajepur district Farrukahabad is stated to have lodged the impugned first information report stating therein that his son had gone for some shopping at V-Mart and the petitioner along with four unknown persons assaulted his son Vishal Pathak with sticks as a result whereof he received grievous injuries whereafter the police was called by dialing no.100 on the telephone. The victim was thereafter taken to Ram Manohar Lohiya Hospital for treatment where he was declared dead. The timing of this incident in the first information report is 2.30 p.m. which is immediately after the lodging of the first FIR referred to hereinabove. 4. The victim was thereafter taken to Ram Manohar Lohiya Hospital for treatment where he was declared dead. The timing of this incident in the first information report is 2.30 p.m. which is immediately after the lodging of the first FIR referred to hereinabove. 4. Learned counsel for the petitioner has vehemently urged that the description of the petitioner as the owner of V-Mart is absolutely incorrect inasmuch as V-Mart is a shopping mall that has been constructed over a land leased out by the father of the petitioner and the said shopping mall has nothing to do with the petitioner either as a owner or otherwise. Secondly there was no occasion for implicating the petitioner inasmuch as no evidence is available, much less credible evidence so as to connect the petitioner with the alleged assault on the deceased Vishal Pathak. 5. Learned counsel has urged that this background clearly demonstrates that the earlier first information report which has been lodged for the theft of a vehicle in relation to the deceased where the deceased had already been taken into police custody does not make out any case of the involvement either of the petitioner or anyone so as to frame a case of alleged assault, that too even after the deceased was taken in police custody pursuant to the first FIR. It is further the submission of learned counsel for the petitioner that as a matter of fact this appears to be a case of custodial death which is also evident from the news-paper report on which reliance has been placed and it is also submitted that the police appears to have framed up the impugned first information report later on in order to cover up whatever had happened if at all as disclosed in the first FIR. 6. The post mortem report has also been placed on record which indicates the ante-mortem injuries and the cause of death being not ascertained, the viscera has been preserved. 7. Learned A.G.A. on the other hand contends that this is a case of a heinous offence where the death of the deceased prima-facie appears to have been caused due to ante-morten injuries as per the post-mortem report and is a day light incident. 7. Learned A.G.A. on the other hand contends that this is a case of a heinous offence where the death of the deceased prima-facie appears to have been caused due to ante-morten injuries as per the post-mortem report and is a day light incident. The evidence would therefore be forthcoming and consequently this Court should not interfere in the exercise of its jurisdiction under Article 226 of the Constitution of India to quash the FIR on such allegations. 8. This is not the stage for this Court to examine the material collected during investigation for quashing the FIR where a categorical allegation has been made nominating the petitioner along with four other persons having assaulted the deceased who was allegedly trying to flee away upon being idetified as a motor-cycle lifter stealing a motor-cycle. No amount of defence can be pleaded at this stage on the facts of the present case as disclosed in both the FIR's. 9. Prima facie the question as to whether the injuries received by the deceased were accidental as alleged or were the result of an assault that involved the petitioner at the time of the incident as per both the FIR's, is a matter of investigation and enquiry and any opinion would be dependant upon the assessment of such material for the investigation to submit a report or for the prosecution to charge the accused. 10. We find that this Court passed the following interim order on 30.11.2017 that was continued vide order dated 12.12.2017 and 03.01.2018 whereafter the case was nominated to DB-6 that is to this Bench: "Order dated 30.11.2017 It is contended that deceased was caught stealing motorcycle outside the building where V-Mart is located by one of the accused Vikas Kumar who after apprehending the deceased called the police by dialing 100 and handed him over to the police and thereafter he died. The father of the deceased has lodged the impugned First Information Report naming the present petitioner also as one of the accused though the V-Mart is situated in commercial building and the place belongs to father of the petitioner who has let it out to the V-Mart. To support the contention, learned counsel for the petitioner has drawn the attention of the Court to the lease agreement between the father of the petitioner and V-Mart. To support the contention, learned counsel for the petitioner has drawn the attention of the Court to the lease agreement between the father of the petitioner and V-Mart. It is also submitted that petitioner has no concern or relationship either with the V-Mart or with the deceased and for no rhyme or reason he has been named in the impugned First Information Report only on the presumption that he is owner of V-Mart. Learned A.G.A. may seek instructions in the matter within a week particularly in respect to the progress in the investigation, if any, made by the police. Put up as fresh on 8.12.2017. Till then petitioner shall not be arrested in case crime no.1093 of 2017, under Sections 147, 302 I.P.C., Police Station- Farrukhabad Kotwali, District- Fatehgarh." Order dated 12.12.2017 The interim order stand discharged. "Learned AGA prays for and is allowed a further time of two weeks to seek instructions and to file counter affidavit. List on 03.01.2018. Interim order already granted shall continue till then. Order dated 03.01.2018 Let this petition for writ be listed before the Bench, to which one among us (Hon'ble Ashok Kumar, J.) be not a Member. Necessary nomination be obtained from Hon'ble the Chief Justice. The interim order, already in operation, shall remain in currency till the next date of listing." 12. We have considered the submissions raised and we find that the arguments that have been advanced on behalf of the petitioner are clearly in the nature of suggestions of defence or a possible defence that can be taken in order to ascertain the correctness or otherwise of the prosecution version which is yet to come after completion of investigation. 13. In view of the law laid down by the Apex Court in the case of State of Telangana Vs. Habib Abdullah Jeelani and others, 2017 Law Suit (SC)23 the parameters that have been laid down in our opinion do not make out any possible case for entertaining this writ petition. The argument of the learned counsel is that since there is no provision for an anticipatory bail in the State of Uttar Pradesh therefore the only remedy lies in filing of a writ petition. The argument of the learned counsel is that since there is no provision for an anticipatory bail in the State of Uttar Pradesh therefore the only remedy lies in filing of a writ petition. We are unable to subscribe to this view on the facts of the present case keeping in view the nature of the offence, the allegations made in the first information report and in view of the law laid down in the case of State of Telangana (Supra). Learned counsel contends that the grant of interim order by the Division Bench on 12.12.2017 had called upon the State of obtain instructions. We find that no prima-facie opinion keeping in view the legal principles as enunciated by the Apex Court or this Court was formed as so to construe that this was a rare case of alleged murder in broad day-light warranting interference. Consequently there is no material at this stage for quashing of the FIR. The writ petition lacks merit and is accordingly dismissed.The interim order stands discharged.