Allahabad High Court
Avnish Kumar vs State Of U.P. And 2 Others on 15 March, 2021
Bench: Munishwar Nath Bhandari, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- CRIMINAL MISC. WRIT PETITION No. - 1982 of 2021
Petitioner :- Avnish Kumar
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Arvind Kumar Srivastava,Archana Srivastava
Counsel for Respondent :- G.A.
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Shamim Ahmed,J.
Heard learned counsel for the petitioner and the learned A.G.A.
By this writ petition, a challenge is made to the FIR dated 27.9.2020 registered as Case Crime No. 588 of 2020, under Sections 302, 201, 120B and 34 IPC with Police Station Shikohabad, District Firozabad.
Learned counsel for the petitioner submits that an FIR regarding murder of Madhuri was lodged against the petitioner on the basis of suspicion, therefore, offence under Section 302 IPC would not be made out. It can be at best offence under Section 364 IPC. In view of the above, this Court may set aside the FIR.
Referring to the facts of this case, it is submitted that Madhuri is the wife of the petitioner. She left the home at her own on 29.7.2020. He along with his relatives tried to search her but could not traced out. A missing report was lodged later on in the month of October, 2020. Madhuri is not available till date.
A reference to a writ petition preferred by the complainant for fair investigation has been given. An order has been passed therein by this Court.
It is also stated that co-accused maintained a writ petition being Crl. Misc. Writ Petition No. 15546 of 2020 wherein an interim protection has been given to them by this Court on 20.1.2021. Prayer is accordingly to pass the similar order in this matter also.
The writ petition has been contested by learned AGA. She submits that despite missing of wife Madhuri, report for it was lodged by the petitioner after three months. She further submits if the contents of the FIR are seen, specific allegation has been made against the petitioner for causing offence under Section 302 IPC. It was in reference to his statement in the presence of informant while the petitioner was under the influence of liquor. The matter has yet to be investigated thoroughly and despite the effort, Madhuri could not be traced out and it may be that she is not alive. At this stage, this Court may not cause interference based on the submissions made by the petitioner when he could not bring any proof about availabilities of his wife.
We have considered the rival submissions and perused the record.
Perusal of the FIR shows that Madhuri is missing since 29.7.2020. The brother was trying to trace her out for that he visited the petitioner's house. The petitioner informed that Madhuri would not available now. Based on the aforesaid statement, an FIR for the offence under Sections 302, 201, 120B and 34 IPC was lodged by the brother.
At this stage, there is nothing on record to prove that Madhuri is alive. The petitioner has not brought any material on record for the aforesaid.
In the light of aforesaid, we do not find any reason to cause interference to the FIR impugned because investigation pursuant to the FIR can bring on record the actual position. According to the petitioner, offence under Section 364 IPC is made out. If the submission aforesaid is taken, the FIR cannot be quashed.
The FIR records statement of fact and remain subject to investigation. The charge-sheet / final report is filed based on the evidence collected during investigation. In view of the above, FIR should not be interfered by the Court unless the case is made out in the light of the judgment of the Supreme Court in the case of State of Haryana Vs. Bhajan Lal; 1992 SCC (Cr.) 426. The subsequent judgment of the Supreme Court on the issue is in the case of State of Telangana Vs. Habib Abdullah Jeelani and others; 2017 (2) SCC 779. The case of the nature is not made out so as to cause interference in the FIR.
After considering the matter, we do not find any ground to quash the impugned FIR. The writ petition is dismissed.
Order Date :- 15.3.2021
Kuldeep
