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Allahabad High Court · body

2023 DIGILAW 477 (ALL)

Kuldeep Yadav v. State Of U. P.

2023-02-16

RAJIV GUPTA, RAMESH SINHA

body2023
JUDGMENT : Ramesh Sinha, J. 1. This petition seeks issuance of a writ in the nature of Certiorari quashing the impugned order dated 15.10.2022 passed by the Special Judge (POCSO Court), Allahabad, whereby non-bailable warrant has been issued against the petitioner in F.I.R. No. 0136 of 2022, under Sections 323, 376, 504, 506 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Phaphamau, District Allahabad. 2. Heard Ms. Archi Piyush, learned Counsel for the petitioner, Shri J.K. Upadhyaya, learned Additional Government Advocate for the State/respondents no. 1 to 3 and perused the impugned F.I.R. as well as material brought on record. 3. It appears that the proceedings were commenced pursuant to an FIR dated 18.05.2022, registered as FIR No.0136 of 2022, under Sections 354 (k), 323, 504, 506 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Phaphamau, District Allahabad, against the petitioner, whereupon the case was investigated. The aforesaid F.I.R. was challenged by the petitioner by filing Criminal Misc. Writ Petition No. 6443 of 2022 before this Court, which was dismissed as withdrawn by means of the order dated 31.05.2022. Thereafter, the petitioner has filed anticipatory bail application, bearing No. 7475 of 2022, which was rejected by the learned Single Judge vide order dated 31.08.2022. During the pendency of the investigation, the Investigating Officer of the case has filed an application before the Special Judge (POCSO Court), Allahabad, stating that the petitioner is the wanted accused in F.I.R. No. 0136 of 2022 but in spite of his best efforts, he could not secure the arrest of petitioner and the petitioner is absconding and there is an apprehension that the petitioner could commit heinous crime, therefore, non-bailable warrant be issued against the petitioner. The Special Judge (POCSO Court), Allahabad, took cognizance of the aforesaid application of the Investigating Officer and upon examining the assertions of the application as well as the case diary, the Special Judge (POCSO Court) issued non-bailable warrant against the petitioner by means of the order dated 15.10.2022. It is at this stage that the present writ petition under Article 226 of the writ petition has been filed by the petitioner, seeking quashing of the aforesaid order dated 15.10.2022 passed by the Special Judge (POCSO Court), Allahabad. 4. It is at this stage that the present writ petition under Article 226 of the writ petition has been filed by the petitioner, seeking quashing of the aforesaid order dated 15.10.2022 passed by the Special Judge (POCSO Court), Allahabad. 4. Learned counsel for the petitioner has submitted that the Special Judge (POCSO Court), Allahabad has passed the impugned order on the basis of the application moved by the Investigating Officer that the petitioner is not co-operating with the investigation. She argued that the investigation is still continuing and no report has been submitted under Section 173 (2) Cr.P.C. She also argued that informant Shri Hari Shanker Tiwari and the petitioner are the residents of Nai Basti Rangpura, Banaras Road, Phaphamau, Prayagraj and they have amicably settled the dispute by means of compromise deed dated 16.01.2023, a copy of which has been annexed as Annexure no.6 to the writ petition. Therefore, issuance of nonbailable warrant against the petitioner during pendency of invesigation is liable to be quashed. In support of her submission, she has relied upon the judgment of the Apex Court in State through CBI Vs. Dawood Ibrahim Kaskar and others : (2000) 10 SCC 438 , wherein the Apex Court has held that the power of issuance of non-bailable warrant can be exercised by the learned Magistrate for appearance of accused before the Court and not before the police in aid of investigation. 5. Learned Additional Government Advocate, on the other hand, has contended that the impugned order has been passed by the Special Judge (POCSO Court), Allahabad, issuing non-bailable warrant against the petitioner, after taking into account the fact that though the Investigating Officer has raided the house of the petitioner, his relative and other places for arrest of the petitioner, but he is absconding, and is also evading himself from arrest, as indicated in the application moved by the Investigating Officer before the Court concerned, hence, under compelling circumstances, the Investigating Officer has moved the application on 13.10.2022, requesting the Court to issue non-bailable warrant. Therefore, the Special Court (POCSO Court), Allahabad, has rightly passed the impugned order against the petitioner. He also argued that the case of Dawood Ibrahim Kaskar (supra) relied upon by the learned counsel for the petitioner is not applicable in the instant case as the facts of the both cases are entirely different. 6. Therefore, the Special Court (POCSO Court), Allahabad, has rightly passed the impugned order against the petitioner. He also argued that the case of Dawood Ibrahim Kaskar (supra) relied upon by the learned counsel for the petitioner is not applicable in the instant case as the facts of the both cases are entirely different. 6. We have examined the submissions advanced by the learned counsel for the parties and gone through the record as well as material brought on record. 7. Perusal of the impugned order indicates that the Special Court (POCSO Court), Allahabad has examined the assertions of the application filed before it that a raid was conducted at the house of the petitioner as well as the house of his relative and other places but he is absconding and he is also trying to evade himself from arresting here and there and there is an apprehension that the petitioner could commit serious offence. The Special Court (POCSO Court), Allahabad has also examined the office report to the effect that no application on behalf of the petitioner/accused for surrendering himself is pending in the Court. After examining the aforesaid and also going through the case diary, the Special Court (POCSO Court) has issued non-bailable warrant against the petitioner, who is an accused of Crime No. 0136 of 2022, under Sections 323, 376, 504, 506 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Phaphamau, District Allahabad. Thus, we are of the considered view that the Special Court (POCSO Act), Allahabad has rightly exercised his power in issuing non-bailable warrant against the petitioner. 8. The judgment of the Apex Court in State through CBI Vs. Dawood Ibrahim Kaskar and others (supra) relied by the petitioner is distinguishable from the facts and circumstances of the case, as in Dawood Ibrahim Kaskar (Supra), the investigation was completed and charge-sheet was submitted, whereas in the instant case, the investigation is still continuing and the accused/petitioner is evading arrest and not appearing before the police for getting his statement recorded and not cooperating with the investigation. 9. At this juncture, it would be apposite to reproduce Section 73 of the Code of Criminal Procedure, which reads as under :- "73. Warrant may be directed any person. 9. At this juncture, it would be apposite to reproduce Section 73 of the Code of Criminal Procedure, which reads as under :- "73. Warrant may be directed any person. (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable, offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71." 10. Perusal of the aforesaid provision, it is apparent that if during investigation, the Investigating Officer intends to arrest the person accused of the offence, he has to seek for and obtain a warrant of arrest from the Magistrate. The Magistrate is fully competent to issue non-bailable warrant to apprehend recalcitrant person who is accused of non-bailable offence and is evading arrest. 11. In the instant case, the Special Judge (POCSO Court), Allahabad has exercised its judicial discretion considering the gravity of the offence as well as taking into account the fact that the petitioner is not co-operating with the investigation as successively the police had raided his premises so that he may be questioned in details regarding various facets of commission of crime. Hence, it was necessary to curtail his freedom in order to enable the Investigating Officer to proceed without any hindrance. 12. Ordinarily, arrest is a part of process of investigation. As the statement of the victim has been recorded showing the involvement of the petitioner in commission of crime, in the opinion of the Investigating Officer, it was necessary to effectuate his arrest and in doing so, he has committed no fault in moving before the Court to obtain non-bailable warrant. Furthermore, a plain reading of the FIR discloses the age of the victim to be less than 18 years. 13. Furthermore, a plain reading of the FIR discloses the age of the victim to be less than 18 years. 13. So far as the plea of the petitioner that a compromise entered into between the informant and petitioner is concerned, we find that the statement of the prosecutrix under Section 164 Cr.P.C. has been recorded, supporting the prosecution case, at this stage, it cannot be said that no offence prima facie is committed by the petitioner. Therefore, the plea of the petitioner in regard to the compromise does not in any way help him because the said compromise has been entered between the petitioner and the informant and not with the prosecutrix. 14. For the aforesaid reasons, the impugned order issuing non-bailable warrant against the petitioner by the Special Judge, POCSO Court, Allahabad of which quashment is sought, cannot be said to suffer from any illegality so as to persuade this Court to exercise its inherent jurisdiction under Section 226 of the Constitution of India. 15. The instant writ petition is, accordingly, dismissed.