Allahabad High Court
Ram Chandra Singh Yadav vs State Of U.P. And Others on 21 April, 2011
Bench: Vinod Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL MISC. WRIT PETITION No. - 6396 of 2011
Petitioner :- Ram Chandra Singh Yadav
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Rakesh Pandey
Respondent Counsel :- Govt. Advocate
Hon'ble Vinod Prasad,J.
Heard Sri Rakesh Pandey learned counsel for the petitioner and learned A.G.A.
Learned counsel for the petitioner is permitted to correct the prayer by adding Annexure No. which he wants to be quashed by issuance of writ of certiorari.
Petitioner, Ram Chandra Singh Yadav, has invoked jurisdiction of this Court under Article 226 of the Constitution of India, praying for issuance of writ of certiorari to quash the order dated 19.1.2011 passed by Judicial Magistrate, Ghazipur, in Criminal Misc. Case No.229 of 2010 Smt. Kamla Devi Vs. Rajendra Prasad and others, vide Annexure No.1 to this writ petition.
By the impugned order, Judicial Magistrate has entertained application of Smt. Kamla Devi respondent no.4 in this writ petition and allowed her application under Section 156(3) Cr.P.C. directing the police to register first information report and investigate offences whatever is made out.
Learned counsel for the petitioner at the very outset was questioned as to whether this Court should entertain this writ petition under Article 226 or under power of superintendence under Article 227 of the Constitution of India, to act at the behest of the proposed accused to stultify even registration of first information report.
Learned counsel for the petitioner submitted that in this case, once FIR is registered, Investigating Officer will first effect arrest of the petitioner and thereafter, will hear him where as facts demonstrate that entire exercise by victim informant Smt. Kamla Devi respondent no.4 is tainted with malafides and is vexatious.
Background facts as were argued by petitioner's counsel and culled out from the pleadings made in the instant writ petition are that an election of committee of management of Jagat Guru Janta Inter College, Dullahpur, Ghazipur was held on 6.4.2008 and result was also declared on the same day according to which Asha Devi was declared elected. Approval to her election was accorded by D.I.O.S. on 5.7.2008. Challenge to the said approval and election was made by Smt. Kamla Devi in Writ Petition No.37827 of 2008 under Article 226 of the Constitution of India before this Court, which was dismissed on 13.10.2009. Challenge to the order of dismissal passed by Hon'ble Single Judge of this Court, in Special Appeal No.1771 of 2009 was also repelled by this Court as division Bench dismissed the aforesaid special appeal on 17.11.2009. However, while dismissing the special appeal, division Bench directed the petitioner Smt. Kamla Devi that if she so desires, she can raise an election dispute.
It is submitted by learned counsel for the petitioner that instead of filing election petition in consonance with the order passed by division Bench of this Court in the above referred special appeal, an application under Section 156(3) Cr.P.C. was filed before the Magistrate by Smt. Kamla Devi wherein petitioner, one of the members of committee of management, whose election was questioned by Smt. Kamla Devi was also arrayed as accused. On the said application, prima facie cognizable offences being disclosed, Magistrate passed impugned order dated 19.1.2011 directing police to register first information report and investigate offences. Hence this writ petition by the petitioner.
After hearing learned counsel for the petitioner at some length ultimately what is culled out is that the petitioner has got no right to challenge pre FIR registration order. Hon'ble Apex Court has dealt with this aspect of the matter at great length in its various reported decisions. Those decisions have got a binding effect under Article 142 of the Constitution of India. Hence prayer for issuance of a writ of certiorari is declined.
However, looking to the allegations, it is desirable to issue some directions to the police as justice is to be done both ways. Effecting arrest of the accused immediately soon after registration of the first information report is a practice, which has been deprecated by Hon'ble Apex Court time and again from the case of D.K. Basu Vs. State of West Bengal AIR 1997 SC 610 to Jogender Kumar Vs. State of U.P. AIR 1994 SC 1349.
An apprehension has been expressed by learned counsel for the petitioner that immediately after registration of the first information report albeit the dispute between informant and accused person lies within realm of the civil nature, yet petitioner will be arrested. It is also urged that the order passed by this Court in writ petition and subsequent confirmation order passed in Special Appeal will be redundant orders once liberty of the petitioner is taken away by Investigating Officer without conducting investigation as to whether the dispute discloses any cognizable offence or not?.
Learned A.G.A. however endeavoured to support the impugned order.
After hearing learned counsel for both the sides, this Court is of the view that the interest of petitioner can be protected without interfering with investigation. It is recollected that it is trite law that High Court should not interfere with investigation in exercise of power under Article 226 of the Constitution of India.This has been so held by Hon'ble Apex Court in the case of State of Haryana Vs. Chaudhary Bhajan Lal : 1992 SCC (Crl.) 426.
Looking to the facts and circumstances of the case, this writ petition is disposed of finally by issuing following directions:-
(1) That petitioner will make himself available before Investigating Officer who is directed to entertain objection of the petitioner without effecting his arrest;
(2) That petitioner is directed to bring two orders of this Court passed in Writ Petition and Special Appeal to the knowledge of the Investigating Officer, who is directed to look into those orders;
(3) Unless credible evidence regarding commission of cognizable offence is disclosed, Investigating Officer is restrained from effecting arrest of the petitioner in the registered case, if he undertakes an investigation.
No order as to costs.
Order Date :- 21.4.2011
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