Jitendra vs State Of Uttarakhand And Others

Ravindra Maithani, J

Instant writ petition has been filed by the petitioner seeking quashing of an FIR No. 146 of 2020, under Sections 312 and 376 IPC, Police Station Kashipur, District Udham Singh Nagar.

Heard learned counsel for the parties through video conferencing.

According to the FIR, the informant, who is respondent no.3 herein, is a widow. The petitioner befriended her through a social media platform, thereafter, the petitioner came Kashipur and started staying with the informant. In police documents, he revealed that he is husband of the informant. Under the pretext of marriage, the petitioner established physical relations with the informant and made her video clippings as well. He took Rs. 1 lakh from the informant and thereafter, according to the FIR, the petitioner pushed the informant in prostitution. He aborted her foetus many a times.

On behalf of the petitioner, it is argued that before lodging the FIR, in the instant case, in fact, on 31.01.2020 the petitioner had filed a complaint in the court of competent jurisdiction Agra against the informant of the instant case; the informant is not sure as to whether, she married the petitioner because in the counter-affidavit at one place she has stated that the petitioner married to her, but the photographs submitted does not reveal it. It is argued that, in fact, informant had sent threatening messages to the petitioner.

In the instant case, counter-affidavit has been filed by the respondent no.3, the informant. She had denied the averments made in the petition. On behalf of the respondent no.3, it is argued that through a social media platform, it is the petitioner, who befriended the informant; took money from her; aborted her foetus. It is argued that a case is made out against the petitioner.

This is a writ petition under Article 226 of the Constitution of India, its scope is quite restrictive in case offence is made out in the FIR.

In the case of Hema Mishra Vs. State of Uttar Pradesh and others (2014) 4 SCC 453, the scope under Article 226 of the Constitution of India, in such matters has been discussed, which has been referred to in the case of Habib Abdullah (supra), the Hon'ble Supreme Court observed as hereunder:-

"35. It is pertinent to mention that though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well-established principles, so much so that while entertaining writ petitions for granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision.

Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a device to advance justice and not to frustrate it. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as back door entry via Article 226. On the other hand, wherever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. It is again clarified that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified."

The instant writ petition is filed for quashing of an FIR. On behalf of the State, although counter-affidavit has yet not been filed, but it is informed that charge-sheet has been submitted in the matter, at which, on behalf of the petitioner, it is argued that in view of principles of law as laid down in the case of Anand Kumar Mohatta and another Vs. State (NCT of Delhi), Department of Home and another (2019) 11 SCC 706, despite charge-sheet having been filed, the proceedings may still continue.

In the case of Anand Kumar Mohatta (supra), in para no.14, the Hon'ble Supreme Court observed as hereunder:-

"14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat, Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23. In Joseph Salvaraj A., Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23, this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed:

"16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not."

In the FIR, the allegations are serious against the petitioner. The petitioner has filed a copy of the complaint, which is annexed as annexure no.2, which he had filed in Agra High Court, on 31.01.2020 and in para no.5 of this complaint, he states that the activities of the informant was suspicious, whereas in the instant FIR, the informant says that it is the petitioner, who pushed her into prostitution. What is its truth? Who has committed offence? Who should be relied on? these matters cannot be decided in this writ petition. These have been subject matter of investigation. As stated, charge-sheet has been filed in the case. It means the Investigating Officer has believed the version of the informant. It would be further scrutiny during trial, where the petitioner would definitely have all the defences available to him as permissible under law. Therefore, this Court is of the view that no interference is warranted in this case and the writ petition deserves to be dismissed.

The instant writ petition is dismissed.