Kumari Shagufta vs State of U.P. and Shamim Ahmad

Imtiyaz Murtaza and Amar Saran, JJ.—Heard Sri V.M. Zaidi, learned Counsel for the petitioner and learned Additional Government Advocate.

This writ petition has been 11 filed for quashing of the F.I.R and slaying the arrest of the petitioner Km. Shagufta in case crime No. 1398 of 2006, under Sections 363/366/376/452/506/406/368 IPC, police station Kotwali City, district Bijnor.

It was contended by the learned Counsel for the petitioner that the FIR does not disclose any cognizable offence against the petitioner who is not named in the FIR, and that the version of the prosecution has changed in the 161 Cr.P.C. and thereafter in the 164 Cr.P.C. statement of the prosecutrix.

It may be noted that in the present case it could not be said that the FIR does not disclose any cognizable offence against any accused person. Furthermore no meticulous examination of the evidence and material on record is required at this stage in the writ jurisdiction under Article 226 of the Constitution of India, and the Court is not to embark on an enquiry as to the reliability or genuineness of the allegations made in the FIR as quashing of an FIR is an exception and a rarity and not ordinarily to be resorted to. Moreover, in her 164 Cr.P.C. statement recorded by the Magistrate, the prosecutrix has staled that the petitioner was instrumental in her enticement and abduction, which eventually resulted in her gang rape by the co-accused kafeel and Faheem. The initial FIR or earlier 161 Cr.P.C statement may not have contained all the details including allegations of gang rape or complicity of the petitioner because it is often humiliating for the family or the victim to make such disclosures or because extraneous pressures may have been bought to bear on the investigating agency. At any rate whether the version given by the prosecution is substantially true or contains unwarranted improvements are matters for appreciation by the investigating agency or the bail or trial court, and provide no ground for quashing of the criminal proceedings under Article 226 of the Constitution or for staying the arrest.

There is no substance also in the argument of the learned Counsel for the petitioner that the prosecution of the petitioner was mala fide as there was no reason for the victim to have implicated the petitioner, who was a girl unless she was involved in this offence or for holding that the proceedings was maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite her due to private and personal grudge,

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, it has been observed:

At this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides.

It may be noted that Recently the Full Bench in Ajit Singh (a) Muraha v. State and Ors. Cr. Misc. Writ Petition No. 4861 of 2000 decided on 5.7.2006 has reiterated the view taken by the earlier Full Bench in Satya Pal and Others Vs. State of U.P. and Others, that there can be no interference with investigation or order staying arrest unless the FIR discloses no cognizable offence or there is any statutory restriction on the power of the police to investigate a case as laid down by the apex Court in various decisions including State of Haryana and others Vs. Ch. Bhajan Lal and others, and that the observations and directions in Joginder Kumar''s case, ( Joginder Kumar Vs. State of U.P. and others, do not relate to the power of the High Court to stay arrest or to quash an FIR under Article 226 and contain only directions for the police, the breach whereof may call for departmental proceedings or action under contempt. The Full Bench has further held that it is not permissible to utilize the writ jurisdiction under Article 226 of the Constitution in such a manner as to provide anticipatory bail which has been deleted in the Stale of U.P. and to do indirectly what cannot be done directly.

The petitioner''s counsel has been unable to satisfy the Court that prima facie on the allegations in the FIR no cognizable offence is disclosed, or that there was any statutory restriction on the conduct of investigation in this case.

In this view of the matter, there is no force in this writ petition. It is accordingly dismissed.