# Manoj Prabhakar v. State of U.P. & others

- **Citation:** (2001) 1 ILRA 2
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-prabhakar-v-state-of-u-p-others-39597
- **Pages:** 4

## Text

2 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
lapse of reasonable period which must be
specified in the rules. The consideration
of such employment is not a vested right,
which can be exercised at any time in
future. The object being to enable the
family to get over the financial crisis
which it faces at the time of the death of
the sole bread winner. The compassionate
employment
cannot be claimed and
offered whatever the lapse of time and
after the crisis is over. The decision in the
case of Jagdish Prasad v. State of
Haryana {1996(1) SLR 7} wherein the
Apex Court had observed that the very
object of appointment of a dependent of
the deceased employee who dies in
harness
is
to
relieve
unexpected
immediate hardship and distress caused to
the family by sudden demise of the
earning member of the family. Since the
death occurred way back in 1971, in
which year, the appellant was four years
old, it cannot be said that he is entitled to
be appointed after he attained majority
long thereafter. In other words, if that
contention is accepted, it amount to
another mode of recruitment of the
dependent of a deceased Government
servant which cannot be encouraged de
hors the recruitment rules.

3. The reasoning of the Apex Court
can be supported also by another reason
namely, that the right to appointment is
not a heritable right which can pass on to
the successor and await attainment of
majority of such succession.

4. The Rules have prescribed 5 years
period as the limit within which such
appointment can be asked for. In view of
the Apex Court, it is not possible for me
to agree with the ratio decided in the case
of Manoj Kumar Saxena (Supra). Since in
respect of the view I have taken are
supported by the decisions of the Apex
Court decisions as well as the Appeal
Court, it is not possible for me to agree
with the ratio decided in the case of
Manoj Kumar Saxena (supra). Since in
respect of the view I have taken are
supported by the decisions of the Apex
Court as well as that of the Division
Bench as observed here-in-before, I am
not inclined to interfere in the matter.

5. The writ petition therefore, fails
and is, accordingly, dismissed. However,
there will be no order as to costs.

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1All] Manoj Prabhakar V. State of U.P. & others
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By the Court

1. Heard petitioner's counsel and the
learned A.G.A.

2. This writ petition has been filed
by Sri Manoj Prabhakar for quashing the
First Information Report dated 9.8.1999,
on the basis of which case crime no. 1444
of 1999 under Sections 420, 406 and 471
I.P.C. has been registered as P.S.
Haldwani, District Nainital against the
petitioner and two others.

3. The prosecution story as narrated
in the First Information Report is that
about 1-1/2 years ago the petitioner
alongwith Sri Divya Nautiyal and Sri
Umesh Chand came to the shop of the
complainant and persuaded him to invest
money in APACE Savings & Mutal
Benefit (India) Ltd. telling him that he
would get ten percent interest and after a
period of fifteen months the rate of
interest would be three percent per month
on the deposited amount. The complaint
induced by the said allurement of the
petitioner and his complainant induced by
the said allurement of the petitioner and
his companions opened two accounts in
the aforesaid Company and deposited Rs.
50 per day for 15 months. When coaccused Umesh Chand did not come to
collect installments, the complainant went
to the office of the Company and found
that the same has been closed. Neither his
money nor interest was refunded to him.
It is specifically alleged that the petitioner
and his co-associates have dishonestly
misappropriated his money amounting to
Rs.35,000/- approximately by deceitful
means.

4. Learned counsel for the petitioner
in support of his arguments for quashing
the First Information Report submitted
that the petitioner had no concern
whatsoever with the affairs of the
aforesaid Company, as he was holding no
post therein. He was simply holding no
post therein. He was simply holding the
post of Managing Director of Naturence
Research Labs (P) Ltd., having its
registered office at A-91 Malviya Nagar,
New Delhi, New Delhi. He invited
applications for appointment of Marketing
Agents
for
sales,
marketing
and
distribution of his Company's cosmetic
goods. Several applications were received
and family, the Board of Directors of his
Company selected the name of M/s Apace
Marketing Ltd. He has never been
inducted as Director of Agent of Apace
Savings & Mutal Benefit (India) Ltd.
According to petitioner's counsel the first
information report has been lodged with
totally false, fabricated and concocted
allegations.

5. Learned A.G.A. on the other hand
argued that since First Information Report
discloses
commission
of
cognizable
offence, the petitioner has no case for
getting the same quashed.

6. It is well settled that power of
quashing First Information Report or
criminal proceeding at its inception
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
should be exercised very sparingly and
with circumspection and that too in rarest
of rare cases, while examining the
question it is not justifiable for the Court
to embark upon an enquiry, as to the
reliability or genuineness or otherwise of
the
allegations
made
in
the
First
Information Report and extraordinary
jurisdiction conferred on this Court under
Article 226 of the Constitution of India
does not permit it to act in an arbitrary or
capricious manner. It is not permissible
for this Court to examine those allegations
meticulously.
While
examining
the
question whether the case falls within the
category of 'rarest of rare' cases, the
Court first has to go into the grip of the
matter, whether the allegations constitute
the offence. At this stage it is not for the
Court to weigh the pros and cons of the
prosecution case. In support of this view,
we may refer to a few decisions of the
Apex Court, State of Harayana vs. Bhajan
Lal and others, AIR 1992 SC 604, Mustaq
Ahmad vs. Mohd. Habiburrhaman, J.T.
1996 (1) 656, Roopan Deol Bajaj and
another vs. Kunwar Pal Singh Gill J.T.
1995 (7) SC, 299, State of Karela vs. O.C.
Kuttan and others, J.T. 1999 (1) SC 486.

7. Again in the case of Pratibha Rani
vs. Suraj Kumar and others (1985) 2 SCC
370, it was held by the Supreme Court
that the High Court has no jurisdiction to
examine the correctness or otherwise of
the
allegations
made
in
the
First
Information Report and it will have to
proceed entirely on the basis of the
allegations made in the First Information
Report.

8. In the back drop of this settled
legal position we have closely examined
the allegations made in the present F.I.R.
and we are of the view that no sufficient
ground has been made out in the present
case, which may warrant interference of
this Court at the investigation stage and
no case is made out for quashing the First
Information Report.

9. It was also submitted by the
petitioner's
counsel
that
since
the
petitioner, a cricketer of repute has
engineered
the
'match
fixing scam'
several persons are annoyed with him and
therefore at their instance he has been
falsely implicated by connecting his name
with M/s Apace Group of Companies. It
will be suffice to state that the allegations
made in the writ petition in this regard are
too vague ambiguous and incomplete to
be given any credence. To bring a case
within the ambit of 'mala fide' the
allegations should be succinctly clear,
unambiguous and prima facie believable.
In the present case from the allegations
made in the petition it is not at all possible
for us to draw any inference of malafide.
Moreover, there is nothing on record to
show
even
remotely
that
the
first
informant was in any way concerned or
connected with the match fixing episode
or was under the influence of any person
against whom match fixing charge has
been leveled by the petitioner.

10. Relying upon the decision of
Apex Court in Joginder Kumar's case
reported in 1994) 4 SCC 260 it was urged
by the petitioner's counsel that the arrest
of the petitioner should be stayed till the
submission of charge sheet. This decision
was considered by this Court in Full
Bench decision in Criminal Misc. Writ
Petition No. 5795 of 1998 decided on
17.9.1999, Satpal and others vs. state of
U.P. and it was held that in appropriate
cases, if the Court is convinced that the
power of arrest will be exercised wrongly
1All] P.N. Tiwari V. Director, I.I.T., Kanpur & others
5
or malafidely or in violation of
Section 41(1) (a)j of the Code of Criminal
Procedure, writ of mandamus can be
issued
restraining
the
police
from
misusing its legal power. However, the
order staying arrest may be granted
sparingly in exceptional case and with
circumspection that too in rarest of rare
case keeping in mind that any relief,
interim or final during investigation,
which has the tendency to slow down or
otherwise hamper the investigation should
not be granted.

11. Section 41)1) of the Code of
Criminal Procedure makes a provision as
to in what circumstances, a police officer
may arrest an accused without the order
of Magistrate or without a warrant. Clause
(a) of this Sub-Section provides that any
person who has been concerned in any
cognizable offence or against whom a
reasonable complaint has been made or
credible information has been received, or
a reasonable suspicion exists, of his
having been so concerned, may be
arrested by police without a warrant.
Section 157 Cr.P.C. lays down the
procedure for investigation and empowers
the Investigating Officer to take measures
for the arrest of the offender. The Full
Bench in the case of Statpal and others
(supra) observed.

"...There is no doubt that arrest is part of
investigation,
the
police
or
the
investigating agency has every authority
to investigate a case where cognizable
offence has been reportred. But while
exercising power of arrest they are
required
to
be
satisfied
about
the
genuineness
or
bona
fides
of
the
allegations of the complaint and about the
necessity
of
arrest
of
the
person
concerned. In other words, there must be
reasonable justification for effecting such
arrest, which is necessary for the proper
investigation."

12. As already pointed out above,
the question of examining truthfulness or
otherwise of the allegations made in the
First Information Report is not to be gone
into by this Court in these proceedings as
the same is to be determined by the
Investigating
Agency
during
investigation. We hope and trust that the
Investigating
Agency
while
making
investigation shall act honestly, fairly and
independently in accordance with the
above mentioned observations of the Full
Bench decision.

13. For the reasons stated above, the
writ petition is dismissed.

14.

Learned counsel for the
petitioner then made a prayer that leave to
appeal to Supreme Court be granted. In
our opinion it is not a fit case for grant of
leave to appeal. Accordingly, the oral
prayer of the learned counsel is refused.

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