Allahabad High Court
Saywan And 3 Others vs State Of U.P. And 2 Others on 5 November, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:173329-DB
Court No. - 42
Case :- CRIMINAL MISC. WRIT PETITION No. - 18295 of 2024
Petitioner :- Saywan And 3 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shobhit Pathak
Counsel for Respondent :- G.A.,Thakur Prasad Dubey
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard learned counsel for the petitioners; learned counsel for the informant; learned AGA and perused the impugned F.I.R. as well as material brought on record.
2. The relief sought in this petition is for quashing of the F.I.R, dated 16.8.2024 registered as Case Crime No.0278 of 2024 under Section 108 of BNS, .S. Kundarki, Distt. Moradabad and for a direction to respondents not to arrest the petitioners pursuant to aforesaid FIR.
3. Learned counsel for the petitioners submits that the petitioners are innocent and have been falsely implicated in the present case. The allegations levelled against them are absolutely false, frivolous and baseless. From a perusal of the FIR, no offence is made out against the petitioners, hence, the same be quashed.
4. Learned counsel for the informant has submitted that the instant writ petition has been preferred on 28.9.2024. Thereafter, the petitioners have pressed anticipatory bail before the trial court by way of Anticipatory Bail Application No.3628 of 2024 (Sahewan & Ors. v. State), which was rejected vide order dated 24.10.2024. He has submitted that this fact has not been divulged by the petitioners through supplementary affidavit. He has further submitted that as per the FIR, case is made out under Section 108 BNS against the petitioners and moreover, the anticipatory bail application is already rejected by the trial court.
5. Learned counsel for the petitioners, in this backdrop, has vehemently contended that in the instant matter no case is made out under Section 108 BNS against the petitioners as the burden cannot be shifted upon the petitioners for proving the offence and the same is to be proved by the prosecution. He fairly states that even though anticipatory bail is already rejected by the trial court but the petitioners have every right to press the relief in this writ petition. In support of his submissions, he has placed reliance on the judgment of Hon'ble Apex Court in M. Vijayakumar v. State of Tamil Nadu, (2024) 4 SCC 633.
6. Learned A.G.A, opposed the prayer for quashing of the F.I.R, which discloses cognizable offence. He has further submitted that truthfulness of allegations and establishment of guilt take place, when the investigation is done or trial proceeds. Probability, reliability or genuineness cannot be looked under Art.226 of the Constitution. The FIR can only be quashed in a writ jurisdiction, if the FIR does not discloses commission of offence and that too prior to framing of charges. As such it is submitted that no interfere is required in the matter.
7. Correctness or otherwise of the F.I.R. allegation need not be examined by us, at this stage, inasmuch as all these issues can be determined at the stage of investigation/trial. Since the First Information Report, prima facie, discloses commissioning of cognizable offence, the prayer made to quash the First Information Report is, therefore, declined in view of the law laid down by the Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others 1992 Supp.(1) SCC 335; Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others, (2021) SCC Online SC 315, as also in latest judgment in Criminal Appeal No.843 of 2024 arising out of Special Leave Petition (Crl.) No.10913 of 2023 (Directorate of Enforcement vs. Niraj Tyagi and others) connected with Criminal Appeal No.844 of 2024.
8. The writ petition is disposed of leaving it open for the petitioners to apply before the competent court for anticipatory bail/bail as permissible under law and in accordance with law.
Order Date :- 5.11.2024
SP/
