WPCRL/1028/2022
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                                  WPCRL No. 1028 of 2022
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Sudhir Kumar, Advocate for the petitioners.

Mr. J.S. Virk, Deputy Advocate General for the State of Uttarakhand.

Heard learned counsel for the parties.

By means of present writ petition, petitioners have prayed for quashing of an F.I.R., being F.I.R. No.0012 of 2022, under Section 323, 354-A, 354-B, 504, 506 & 376 I.P.C., registered at Police Station Laxman Jhula, District Pauri Garhwal. Further prayer has been made for a direction to the Police Authorities not to arrest the petitioners with regard to the aforesaid F.I.R.

The impugned FIR, which was registered pursuant to order passed under Section 156(3) of Cr.P.C., is on record as Annexure-3 to the writ petition.

As per allegations made in the FIR, petitioner No. 1 sexually abused the complainant (respondent no. 2) while she was a minor. It is further alleged that on 16.01.2022 at about 02:00 pm, both the petitioners physically assaulted the complainant.

Learned counsel for the petitioners submits that complainant is daughter of petitioner No. 1 from his first wife, who died in a fire accident in the year 2008. He further submits that respondent no. 2 was married to one Sri Saurav Kumar, but after separation/divorce from her husband in 2018/2019, she is living separately at Haridwar and is working in a factory. He further submits that after separation from her husband, respondent no. 2 started demanding money and since petitioners could not fulfil her demand, then respondent no. 2 has filed impugned FIR in order to extort money. Thus, according to learned counsel for the petitioners, in order to prevent abuse of process of law, FIR deserves to be quashed and petitioners are also entitled for protection against arrest during pendency of the writ petition.

Their Lordships' of Hon'ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & others reported in AIR 2021 SC 1918 have laid down parameters for exercise of power under Article 226 of Constitution, in such matters. Para 10 of the judgment is reproduced below:-

"10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."

In the case of Satvinder Kaur Vs State (Government of NCT of Delhi), reported in (1991) 8 SCC 728, Hon'ble Supreme have reiterated that if an offence is disclosed in the FIR, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. It was further held that for the purpose of exercising its power under Section 482 Cr.P.C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations.

Their Lordships' of Hon'ble Supreme Court in the case of State of Kerala v. O.C. Kuttan, reported in 1999 (2) SCC 651 have held as under:-

"Having said so, the Court gave a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. It is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and, therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In the case of State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497 : JT (1996) 2 SC 488] a three-Judge Bench of this Court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. The same view was reiterated by yet another three- Judge Bench of this Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415 : JT (1996) 11 SC 175] where this Court sounded a word of caution and stated that such power should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. The Court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole."

In the present case, contents of FIR prima facie disclose commission of a cognizable offence. Although petitioners have alleged mala fides against the complainant, however, that aspect cannot be gone into at this stage. It is for the Investigating Officer to investigate the matter and thereafter to file either charge-sheet or closure report, as the case may be.

In the case of State of West Bengal vs. Swapna Kumar Guha, reported in 1982 (1) SCC 561, their Lordships' of Hon'ble Supreme Court have held that if the FIR discloses commission of a cognizable offence, courts will not normally interfere with the investigation into the same and will permit investigation into the alleged offence to be completed.

The submission made on behalf of petitioners that the allegations in the FIR are false, therefore, the FIR deserves to be quashed, is unacceptable. Whether the allegations are true or untrue, would have to be decided in the trial. While exercising power under Article 226 of the Constitution, this Court is not expected to embark upon an enquiry into, whether there is reliable evidence or not. It is not a case where FIR does not, disclose any offence. None of the parameters laid down by Hon'ble Supreme Court, for invoking power under Article 226 of the Constitution for quashing an FIR, are met in the present case.

In such view of the matter, there is no scope for interference with the impugned FIR while exercising extraordinary power under Article 226 of the Constitution.

For the aforesaid reasons, prayer for stay of arrest made by petitioners also cannot be granted.

Accordingly, criminal writ petition is dismissed. Petitioners may approach the appropriate forum available to them under Code of Criminal Procedure, if so advised.

(Manoj Kumar Tiwari, J.) 06.06.2022 Arpan