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2024 DIGILAW 1417 (ALL)

Raj @ Raja v. State of U. P.

2024-05-24

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : By the Court.-This writ petition has been filed with the prayer to quash the F.I.R. dated 28.3.2024, registered as Case Crime No. 14 of 2024, under Sections 8/21/29 N.D.P.S. Act, Police Station Hathinala, District Sonbhadra. 2. It is submitted by learned counsel for the petitioner that the petitioner has been falsely implicated in the aforesaid case and that no recovery has been made from him of any contraband. Petitioner is also not arrested at the spot. It is submitted that at the instance of similarly placed co-accused Shailesh Kumar Alias Gopi and another, a previous writ petition filed before this Court being Criminal Misc. Writ Petition No. 7058 of 2024 has been entertained and disposed of by a co-ordinate Bench of this Court vide order dated 3.5.2024, which is reproduced hereinafter : ''1. Heard learned counsel for the petitioners and learned A.G.A. for the State respondents. 2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 28.3.2024, registered as Case Crime No. 0014 of 2024, under Sections 8, 21 and 29 of NDPS Act, 1985, Police Station-Hathinala, District -Sonbhadra, and for a direction to the respondents not to arrest the petitioners in pursuance of impugned First Information Report. 3. Learned counsel for the petitioners submits that he has been named by co-accused, who were caught with the contraband. No recovery was made from the petitioners nor they were found present on the place of incident. Petitioners have been falsely implicated in this case. 4. Petition is disposed of directing that till cognizance is taken on police report under Section 173(2) Cr.P.C., by the Court the respondents shall not arrest the petitioners pursuant to the First Information Report dated 28.3.2024, subject to cooperation in ongoing investigation.'' 3. In the facts of the case, it transpires that 170 grams Heroin has been recovered alongwith certain money and iPhone etc. It is during investigation that role of the petitioner has surfaced. Investigation is going on. It is at this stage that the writ petition has been filed with the prayer to quash the impugned FIR. 4. In the facts of the case, it transpires that 170 grams Heroin has been recovered alongwith certain money and iPhone etc. It is during investigation that role of the petitioner has surfaced. Investigation is going on. It is at this stage that the writ petition has been filed with the prayer to quash the impugned FIR. 4. Learned AGA raises an objection to the prayer made in the writ petition on the ground that the impugned FIR contains prima facie allegation with regard to commissioning of the cognizable offence and the correctness or otherwise of such allegations cannot be examined in writ proceedings, at the outset. Defence of the accused also cannot be looked into at this stage. Submission is that the order of the Division Bench with which parity is sought ought not be passed in view of the law laid down by the Supreme Court in the case of State of Telangana v. Habib Abdullah Jellani, (2017) 2 SCC 779 , as also in the case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others, (2021) SCC Online SC 315. It is also submitted that the writ petition has been disposed of at the stage of fresh petition itself, even without calling for a counter-affidavit, which course is impermissible. 5. Admittedly, Writ Petition No. 7058 of 2024 has been disposed of, finally, without calling for any counter-affidavit in the matter. Only petitioners' contention is noticed. Although the prayer in the writ petition is to quash the FIR but no adjudication is made in respect of the prayer made nor any observations are made in that regard. 6. Even if a writ petition filed with the prayer to quash the FIR is to be entertained on the basis of arguments advanced on behalf of the petitioners, it would be necessary that an opportunity be given to the State to file a counter-affidavit in the matter and the informant be also heard. In Neeharika Infrastructure Pvt. Ltd. (supra) the Supreme Court has examined the issue and after elaborately dealing with the exercise of jurisdiction under Article 226 of the Constitution of India, in a petition filed with the prayer to quash the FIR, has observed as under : ''33.16. In Neeharika Infrastructure Pvt. Ltd. (supra) the Supreme Court has examined the issue and after elaborately dealing with the exercise of jurisdiction under Article 226 of the Constitution of India, in a petition filed with the prayer to quash the FIR, has observed as under : ''33.16. The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482CrPC and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or ''no coercive steps to be adopted'' and the accused should be relegated to apply for anticipatory bail under Section 438CrPC before the competent Court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or ''no coercive steps'' either during the investigation or till the investigation is completed and/or till the final report/charge-sheet is filed under Section 173CrPC, while dismissing/disposing of the quashing petition under Section 482CrPC and/or under Article 226 of the Constitution of India. 33.17. Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482CrPC and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. 33.18. 33.18. Whenever an interim order is passed by the High Court of ''no coercive steps to be adopted'' within the aforesaid parameters, the High Court must clarify what does it mean by ''no coercive steps to be adopted'' as the term ''no coercive steps to be adopted'' can be said to be too vague and/or broad which can be misunderstood and/or misapplied.'' 7. In the facts of the case, we find that the Co-ordinate Bench while disposing of the writ petition has merely noticed the argument of the petitioners in para 3 and disposed of the matter by directing that till cognizance is taken on the police report under Section 173(2) Cr.P.C. the respondents shall not arrest the petitioners pursuant to the FIR dated 28.3.2024, subject to cooperation in the on-going investigation. 8. With utmost respect to the Division Bench that passed the order dated 3.5.2024, we find it difficult to follow the order of the Co-ordinate Bench. The order dated 3.5.2024 merely grants protection from arrest to the petitioners without there being any adjudication on the legality of the FIR challenged in the writ petition. We otherwise find that prima facie allegations with regard to commissioning of cognizable offence are clearly disclosed and the plea of petitioner with regard to his exact role in the offence; correctness or otherwise of the FIR allegations; defence of the petitioner etc. cannot be adjudicated, at the threshold, without even inviting a counter-affidavit or specifying reasons. Factual aspects that are required to be examined at the stage of investigation/trial otherwise ought not to be commented upon at this stage. 9. Even if the writ petition filed with the prayer to quash the impugned FIR is to be entertained, it would be necessary, in our understanding, to invite a counter-affidavit from the respondents in the writ while granting appropriate interim protection. The petition, however, cannot be disposed of staying the arrest of accused till submission of police report, in the above manner, as is prayed for by the writ petitioners. 10. The petition, however, cannot be disposed of staying the arrest of accused till submission of police report, in the above manner, as is prayed for by the writ petitioners. 10. In that view of the matter, we refer the following questions for consideration by a Larger Bench : Whether a writ petition filed with the prayer to quash the FIR can be disposed of by staying the arrest of the accused till submission of report under Section 173(2) Cr.P.C., by merely noticing the petitioners' contention, at the threshold, without inviting any counter-affidavit or specifying reasons for grant of such protection in view of the law laid down by the Supreme Court in Neeharika Infrastructure Pvt. Ltd. (supra) 11. Let the papers be placed before Hon'ble The Chief Justice for appropriate orders to be passed in the matter.