Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1393 (ALL)

Mamta Pandey v. State of U. P.

2022-09-01

RAMESH SINHA, RENU AGARWAL

body2022
JUDGMENT : 1. Heard Shri Amarendra Kumar Bajpai, learned counsel for the petitioners, Dr. Pooja Singh, learned Counsel for the complainant/private respondent No. 4 and Shri Arunendra, learned Additional Government Advocate for the State-respondents. 2. Initially, the instant writ petition has been filed for the following reliefs: “(i) To issue a writ direction or order in the nature of Certiorari to quash the impugned First Information Report No. 0591 of 2021 dated 27.8.2021 under Sections 34, 302, 498-A and 504 IPC, in police station Gomtinagar, District Lucknow, contained as Annexure 1 to this writ petition. (ii) To issue a writ direction or order in the nature of mandamus commanding the opposite parties not to arrest the petitioners on the basis of impugned First Information Report No. 0591 of 2021 dated 27.8.2021 under Sections 34, 302, 498-A and 504 IPC, in police station Gomtinagar, District Lucknow, contained as Annexure 1 to this writ petition. (iii) To issue any other order which this Hon'ble Court deems fit in the circumstances of the case. (iv) To allow the writ petition with cost.” 3. From perusal of the order sheet of the case, it transpires that on 6.9.2021, after hearing learned Counsel for the parties, this Court passed an interim order staying the arrest of the petitioners, in pursuance of the impugned F.I.R., during pendency of investigation. 4. Thereafter, the case came before this Court at regular intervals and on 16.7.2022, a co-ordinate bench of this Court passed the following order: “Heard. C.M. Application No. 13 of 2022 - Application dated 29.11.2021 for not pressing the application for amendment of the writ petition is allowed. Accordingly, the first application for amendment dated 29.11.2021 by which inter alia charge-sheet filed against the accused including petitioners/applicants was sought to be challenged, is dismissed as withdrawn. (C.M. Application No. I.A. 12 of 2022 - Second Application for Amendment of the writ petition) By means of this amendment plea being taken is that according to the admission of the Investigating Officer in his Counter-affidavit in opposition of the bail application of co-accused, it has been stated that First Information Report was entered/lodged on 26.8.2019 but the FIR which is impugned herein is dated 27.8.2021 and there is no explanation as to lodging of the first FIR and how two FIRs can be lodged. He relies upon the decision of Hon'ble the Supreme Court in the case of T.T. Antony v. State of Kerala and others, (2001) 6 SCC 181 . Second Application for Amendment of the writ petition is allowed as no objection has been filed by the State. Let necessary amendment be made in this writ petition. Let the petitioner provide the amended copy of the petition to the State within three days. Counter-affidavit to the amended portion of the writ petition be filed within the next three days. List on 25.7.2022 amongst first five cases of the day. Interim order, if any, granted earlier shall continue till the next date of listing. Interim order which is operating shall not come in the way of the trial Court in proceeding against the other accused two of whom are in jail and one is on bail. It is also open for the trial Court to segregate trial of other accused from that of the petitioners, if it so deems fit. All pleas including the maintainability of this proceeding after non-pressing of the first amendment application dated 29.11.2021 are also open for consideration.” 5. In compliance of the order dated 16.7.2022, learned Counsel for the petitioners has made amendment in the prayer clause which reads as under: “(v) To issue a writ direction or order in the nature of Certiorari to quash the subsequently registered impugned F.I.R. dated 27.8.2021 being a creation of afterthought and contrary to the provisions of Section 154 Cr.P.C. (vi) To issue a writ direction or order in the nature of Certiorari to quash the charge-sheet dated 23.11.2021, against the Petitioners, for FIR number 0591 of 2021 dated 27.8.2021 under Sections 34, 302, 498-A, 504, 120-B and 201 IPC for Petitioners number 1 and 2 and under Sections 302, 498-A and 120-B for Petitioner Number 3 and further to set aside the summoning order against the Petitioners in consequent to the charge-sheet, after summoning from the respondents. (vii) To issue a writ direction or order in the nature of Mandamus commanding the O.P. No. 1 to issue Departmental/Criminal Proceedings against the present O.P. No. 3 for ignoring material evidences and misleading the Hon'ble Court for the reasons better known to him.” 6. As the pleadings between the parties were exchanged, a Co-ordinate Bench of this Court passed the following order on 29.7.2022: “Heard Mr. As the pleadings between the parties were exchanged, a Co-ordinate Bench of this Court passed the following order on 29.7.2022: “Heard Mr. Amarendra Kumar Bajpai, learned counsel for petitioners as well as Mr. S.N. Tilhari and Mr. S.P. Singh, learned AGA and Dr. Pooja Sigh, learned counsel for the informant. Judgment reserved. Interim order, granted earlier, shall continue till pronouncement of judgment.” 7. Thereafter, a Co-ordinate Bench of this Court which reserved the judgment passed the following order on 25.8.2022: “We had reserved our orders on 29.7.2022, however, while going through the file before dictating the judgment, we find that although the petitioners had not pressed their application dated 29.11.2021 wherein they had prayed for quashing of the charge-sheet dated 23.11.2021 by filing subsequent application bearing No. 13 of 2022 dated 11.3.2022, however, alongwith the said application separate application bearing No. 12 of 2022 seeking amendment of the writ petition was also filed and the affidavit in support of both these applications i.e., C.M. Application No. 13 of 2022 and C.M. Application No. 12 of 2022 is the same, a fact which we did not notice while passing the dated 16.7.2022, consequently, although we allowed the earlier application dated 29.11.2021 to be not pressed and accordingly allowed application No. 13 of 2013, but, we also allowed application No. 12 of 2022 which is supported by the same affidavit. Consequently, the prayer for quashing the charge-sheet got incorporated in the writ petition, therefore, this prayer is still there, whereas, during the argument we were given an impression as if this prayer had already been not pressed and only one issue as to whether the impugned FIR is the second FIR required to be considered whereas the prayer for quashing the charge-sheet still remains by virtue of amendment and learned counsel are required to address the Court on this count. The matter requires rehearing. Let the matter be placed before the Regular Bench on 1.9.2022. This matter shall not be treated as tied up or part heard to this Bench. Interim order, granted earlier, shall continue till next date of listing.” 8. In pursuance of the same, the matter has been listed today in the additional cause list before this Court. 9. Let the matter be placed before the Regular Bench on 1.9.2022. This matter shall not be treated as tied up or part heard to this Bench. Interim order, granted earlier, shall continue till next date of listing.” 8. In pursuance of the same, the matter has been listed today in the additional cause list before this Court. 9. A preliminary objection has been raised by the learned Additional Government Advocate and learned Counsel for the private respondent that as the investigation has been concluded and charge-sheet has been submitted against the petitioners, hence the writ petition which has been filed for quashing of the impugned First Information Report has become infructuous. Thus the same may be dismissed as infructuous with liberty to challenge the charge-sheet dated 23.11.2021 as well as the order taking cognizance on the basis of the charge-sheet for the offences in question before the appropriate Court under Section 482 Cr.P.C. 10. In reply to the said preliminary objection raised by the learned Additional Government Advocate and learned counsel for private respondent, learned Counsel for the petitioners has stated that a Co-ordinate Bench of this Court has allowed the petitioners to amend the writ petition incorporating the prayer for challenging the charge-sheet as well as the order taking cognizance and further, some other legal issues that the impugned F.I.R. is the second F.I.R. for the same incident, hence the impugned F.I.R. is liable to be quashed by this Court on the basis of the counter-affidavit filed by the State in a bail application No. 13889 of 2021 filed on behalf of the co-accused Krishna Kumar Pandey. 11. A Criminal Misc. Application No. 159435 of 2021 has been filed on behalf of the petitioners on 29.11.2021 for amending the said writ petition. Further, it transpires that a Criminal Misc. Application No. 12 of 2022 has been filed in the writ petition on 11.3.2022 with a prayer to allow the applicants/petitioners to amend the writ petition to the extent of legal issues in the prevailing circumstances alongwith Criminal Misc. Application No. 13 of 2022 for not pressing the first application for amendment dated 29.11.2021 both in support of an affidavit of petitioner No. 1 and on behalf of other petitioners. vide order dated 16.7.2022, a Co-ordinate Bench of this Court had allowed Criminal Misc. Application No. 13 of 2022 for not pressing the first application for amendment dated 29.11.2021 both in support of an affidavit of petitioner No. 1 and on behalf of other petitioners. vide order dated 16.7.2022, a Co-ordinate Bench of this Court had allowed Criminal Misc. Application No. 13 of 2022 dated 29.11.2021 for not pressing the first amendment application by which the charge-sheet filed against he petitioners, sought to be challenged, has been dismissed as withdrawn. So far as Criminal Misc. Application No. 12 of 2022 (second application for amendment in the writ petition) is concerned, it has been allowed. 12. It has been argued by the learned Counsel for the petitioners that a Co-ordinate Bench of this Court has observed in its order dated 25.8.2022 that the prayer for quashing of the charge-sheet got incorporated in the writ petition is still in the prayer and due to some misunderstanding, the Co-ordinate Bench of this Court was of the view that the said prayer had already been not pressed and only one issue is as to whether the impugned FIR is the second FIR required to be considered, but realizing the said fact, the prayer for quashing of the charge-sheet still remains by virtue of amendment and learned counsel are required to address the Court on this count, hence he prays for quashing of the charge-sheet as well as the impugned F.I.R. being the second F.I.R. 13. It is admitted to the learned Counsel for the parties that in the present case, the impugned charge-sheet has been submitted on 23.11.2021 for the offences under Sections 34, 302, 498-A, 504, 120-B and 201 IPC for petitioner Nos. 1 and 2 and under Sections 302, 498-A and 120-B IPC for petitioner No. 3 and the Court below has also taken cognizance. 14. In our opinion, as the Court below has already taken cognizance of the offences in question on the basis of charge-sheet and the investigation has already been concluded, hence the present writ petition for quashing the charge-sheet is not at all maintainable in view of law laid down by the Full Bench decision of this Court in the case of Ramlal Yadava and others v. State of U.P. and others, 1989 Cri LJ 1013 (FB). 15. 15. The Judgment of seven Judges' Full Bench in the case of Ramlal Yadava and others (supra) is clear and categorical that unless there is a matter pending before the subordinate Court no application under Section 482 Cr.P.C. can be entertained by the High Court. In other words it means that till the stage of investigation of a Criminal case and thereafter till the filing of the charge-sheet and taking cognizance of the offence by the Court, no application can be made in the High Court for quashing the First Information Report or investigation under Section 482 Cr.P.C. However in very exceptional cases the writ jurisdiction of the High Court under Article 226 of the Constitution can be invoked either for quashing the F'irst Information Report or for staying the investigation. 16. The dictum of the judgment passed in Ramlal Yadava and others (supra) has been followed by this Court in the case of A.S. Bindra v. Senior Superintendent of Police, 1998 Cri. LJ 3845. 17. Learned Counsel for the petitioners has elaborately made submissions for quashing of the charge-sheet on the ground that the petitioner Nos. 1, 2 and 3 are sister-in-law (nanad), brother-in-law (nandoi) and devar and they were living separate from the deceased, hence they have been falsely implicated in the present case by the informant, who is an influential person in order to harass them and their career would be spoiled being Government Servants. 18. As this Court is of the opinion that the order taking cognizance on the basis of the charge-sheet submitted against the petitioners which is under challenge in the present writ petition by way of amendment cannot be challenged in view of law laid down in the Full Bench decision of this Court in the case of Ramlal Yadava and others (supra) and of Division Bench of this Court in the case of A.S. Bindra (supra), hence it would not be appropriate to pass any orders on the said issue for quashing of the charge-sheet as the petitioners have remedy before the appropriate Court by filing an appropriate application under Section 482 Cr.P.C. 19. So far as the second issue raised by the learned Counsel for the petitioners is concerned, it has been argued that the incident took place in the night between 25/26.8.2021 and the First Information Report was registered on 27.8.2021 at the place of the private respondent No. 4/Ram Sewak Dwivedi and is apparent from the counter-affidavit filed by the State in the bail application of Krishna Kumar Pandey, hence the impugned First Information Report lodged on 27.8.2021 against the petitioners for the offences under Section 34, 302, 498-A, 504, 120-B and 201 IPC is liable to be quashed in view of the law laid down by the Apex Court in T.T. Antony v. State of Kerala and others, (2001) 6 SCC 181 . He further submitted that the deceased died as per post-mortem report as asphyxia as result of ante-mortem hanging as she committed suicide and the petitioners No. 1 to 3 are sister-in-law (nanad), brother-in-law (nandoi) and devar have been unnecessarily implicated in the present case to ruin their career and family though they were not even present on the date and time of incident. 20. Learned Additional Government Advocate and learned Counsel for the private respondent have vehemently opposed the said prayer of the learned Counsel for the petitioners and submitted that an information which was registered about the death of his daughter was given by the private respondent/Ram Sewak Dwivedi at the concerned police station by means of an application dated 26.8.2021 wherein he stated that a detailed application will be submitted before the police authorities as he was so upset after hearing the news of death of his daughter. The said information was also registered in the General Diary of Police Station Gomti Nagar, Lucknow on 26.8.2021 at 14.26 hours, copies of which have been annexed as Annexures CA1 and CA2 to the counter-affidavit. 21. Thereafter, the informant submitted an application for lodging the F.I.R. of the present incident on 27.8.2021 when he gained his mental state and the impugned F.I.R. No. 0591 of 2021 was registered on 27.8.2021 at 18.58 hours under Sections 34, 302, 498-A and 504 IPC against the petitioners and other co-accused persons. 21. Thereafter, the informant submitted an application for lodging the F.I.R. of the present incident on 27.8.2021 when he gained his mental state and the impugned F.I.R. No. 0591 of 2021 was registered on 27.8.2021 at 18.58 hours under Sections 34, 302, 498-A and 504 IPC against the petitioners and other co-accused persons. Though the impugned F.I.R. is not the second F.I.R. but the contention of the learned Counsel for the petitioners that the same is second F.I.R. be quashed in view of the judgment of the Apex Court is a fallacious one. 22. After having examined the submissions of the learned counsel for the parties on the said aspect and the material brought on record, the Court finds that the contention raised by the learned counsel for the opposite party No. 4 and the learned Additional Government Advocate appears to have substance as is evident from the application dated 26.8.2021 submitted by the private respondent at Police Station Gomtinagar, Lucknow. The private respondent/Ram Sewak Dwivedi who is the father of the deceased has given information about the death of his daughter which has taken place on 26.8.2021 and the same was registered at Police Station Gomti Nagar in G.D. No. 039 on 26.8.2021 at 14.26 hours and the complainant/private respondent lodged the impugned F.I.R. against the petitioners and thereafter on 27.8.2021 against the petitioners and other co-accused persons. Thus, it cannot be said that the impugned F.I.R. is a second F.I.R. and the same be quashed as has been prayed by the learned Counsel for the petitioners. Thus, the case law T.T.Antony [supra] cited by the learned counsel for the petitioners is not applicable in the facts and circumstances of the case. 23. In view of the aforesaid discussion, there appears to be no good ground for quashing the impugned F.I.R. and the prayer of the learned counsel for the petitioners is rejected. 24. Accordingly, the writ petition is dismissed. However, since the trial Court has taken cognizance of the offences of the charge-sheet under Sections 34, 302, 498-A, 504, 120-B and 201 IPC against the petitioners, they may take recourse to law before the appropriate Court. 25. It is made clear that this Court has not expressed any opinion with respect to the charge-sheet submitted in the present case and the order taking cognizance. 25. It is made clear that this Court has not expressed any opinion with respect to the charge-sheet submitted in the present case and the order taking cognizance. It would be open for the petitioners to raise all the issues before the Court concerned.