Court No. - 41 Case :- CRIMINAL MISC. WRIT PETITION No. - 1657 of 2010 Petitioner :- Mohar Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Pankaj Kumar Tyagi,Smt. Archana Tyagi Respondent Counsel :- Govt. Advocate,Pankaj Kumar Shukla Hon'ble Imtiyaz Murtaza,J.
Hon’ble Naheed Ara Moonis,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and Sri
Pankaj Kumar Shukla holding brief of Sri H.P.Dubey appearing on behalf of
U.P. Power Corporation.
We have been taken through the allegations contained in the F.I.R. and the
material on record.
Learned counsel for the power corporation submits that Rs.20,000/- is due
against the petitioner as compounding charges. Learned counsel for the
petitioner states that the petitioner is ready to make payment of Rs.20,000/-
within twenty days from today.
Learned counsel for the Power Corporation prays for and is allowed two
weeks time to file counter affidavit. Learned A.G.A. may also file counter
affidavit within the same period. Rejoinder affidavit may thereafter be filed
within one week.
List this case after the expiry of the aforesaid period. Heard learned counsel
for the petitioner and learned A.G.A. appearing for the State.
The relief sought in this petition is for quashing of the F.I.R. registered at case
crime no.07of 2010, under section 135(2)/138 Electricity Act, 2003, P.S
Gagalhedi , District Saharanpur.
The Full Bench of this court in Ajit Singh @ Muraha Vs. State of U.P. &
others (2006 (56) ACC 433) reiterated the view taken by the earlier Full
Bench in Satya Pal Vs. State of U.P. & others (2000 Cr.L.J. 569) that there
can be no interference with the investigation or order staying arrest unless
cognizable offence is not ex-facie discernible from the allegations contained
in the F.I.R. or there is any statutory restriction operating on the power of the
Police to investigate a case as laid down by the Apex Court in various
decisions including State of Haryana Vs. Bhajan Lal & others (AIR 1992 SC
604) attended with further elaboration that observations and directions
contained in Joginder Kumar’s case (Joginder Kumar Vs. State of U.P. &
others (1994) 4 SCC 260 contradict extension to the power of the High Court
to stay arrest or to quash an F.I.R. under article 226 and the same are intended
to be observed in compliance by the Police, the breach whereof, it has been
further elaborated, may entail action by way of departmental proceeding or
action under the contempt of Court Act. The Full Bench has further held that
it is not permissible to appropriate the writ jurisdiction under Article 226 of
the constitution as an alternative to anticipatory bail which is not invocable in
the State of U.P. attended with further observation that what is not permissible
to do directly cannot be done indirectly.
The learned counsel for the petitioner has not brought forth anything cogent
or convincing to manifest that no cognizable offence is disclosed prima facie
on the allegations contained in the F.I.R. or that there was any statutory
restriction operating on the police to investigate the case.
Having scanned the allegations contained in the F.I.R. the Court is of the view
that the allegations in the F.I.R. do disclose commission of cognizable offence
and/therefore no ground is made out warranting interference by this Court.
The petition is accordingly dismissed.
Till next date of listing or till submission of charge sheet whichever is earlier,
the arrest of the petitioner, namely, Mohar Singh who is wanted in case crime
No.07of 2010 under Section 135(2)/138 Electricity Act, 2003, P.S. Gagalhedi,
District Saharanpur shall remain stayed subject to the condition that the
petitioner deposits the above amount within the stipulated period, and in case
of default the benefit of this order will not be extended to the petitioner.
However, it is made clear that this order will have no effect on realization of
Electricity charges due against the petitioner and the amount so deposited by
him will be adjusted at the time of final settlement between the parties.
Order Date :- 2.2.2010
A. Verma