Court No. - 41 Case :- CRIMINAL MISC. WRIT PETITION No. - 26540 of 2009 Petitioner :- Malika And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Mohd. Khalil Respondent Counsel :- Govt. Advocate Hon'ble Imtiyaz Murtaza,J.
Hon’ble Shri Kant Tripathi,J.
Heard learned counsel for the petitioners and also learned A.G.A.
appearing for the State authorities.
By means of this petition, the petitioners have prayed for the relief of a
writ of certiorari quashing the F.I.R. in case crime no.652 of 2009 under
section 364 IPC P.S. Massoorie Distt Ghaziabad.
Attention is drawn to the Full Bench of this court in Ajit Singh @ Muraha
v. State of U.P. and others (2006 (56) ACC 433) in which this Court
reiterated the view taken by the earlier Full Bench in Satya Pal v. State
of U.P. and others (2000 Cr.L.J. 569) that there can be no interference
with the investigation or order staying arrest unless cognizable offence is
not exfacie 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 v. Bhajan Lal and others (AIR 1992 SC 604)
attended with further elaboration that observations and directions
contained in Joginder Kumar’s case (Joginder Kumar v. State of U.P.
and 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. 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 petitioners 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.
Order Date :- 4.1.2010
MH