# Nafisa & Ors v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 981
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-16
- **Case number:** Crl. Misc. Writ Petition No. 14344 of 2022
- **Bench:** Anjani Kumar Mishra, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nafisa-ors-v-state-of-u-p-ors-49758
- **Pages:** 9

## Headnote

Criminal Law - Constitution of India, 1950
- Article - 226, - Criminal Procedure
Code,1973 - Sections 156(3), 173(3), 200,
202, 376-D, 438 & 482 - Indian Penal
Code, 1860 - Sections 120(B), 195, 211,
384, 420 & 506 - Writ Petition - Quashing of
F.I.R.
and
protection
from
arrest
-
maintainability - allegations are that petitioners
are working as a Gang under the protection of
an advocate and they are also involved in
several FIRs regarding gang rape etc. against
several innocent persons and extracted money -
court finds that, Prima facie a case of cognizable
offence is made out against the petitioners
which requires a detailed investigation to be
carried out by the authorities - No blanket
orders staying arrest of the petitioners can be
passed in such matter - present case did not fall
under the category of rarest of the rare cases -
thus, writ petition not entertained - however,
Liberty given to file appropriate application u/S.
438 of Cr.P.C. seeking anticipatory bail and, to
file an Application u/S. 482 of Cr.P.C. for
quashing
of
FIR
-
writ
petition
stands
dismissed.(Para - 8, 12, 14, 16)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

## Text

2 All. Nafisa & Ors. Vs. State of U.P. & Ors.
981
(2023) 2 ILRA 981
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE GAJENDRA KUMAR, J.

Crl. Misc. Writ Petition No. 14344 of 2022

Nafisa & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajatshatru Pandey

Counsel for the Respondents:
G.A., Sri Kamlesh Kumar Tiwari, Sri Manoj
Kumar Srivastava

Criminal Law - Constitution of India, 1950
- Article - 226, - Criminal Procedure
Code,1973 - Sections 156(3), 173(3), 200,
202, 376-D, 438 & 482 - Indian Penal
Code, 1860 - Sections 120(B), 195, 211,
384, 420 & 506 - Writ Petition - Quashing of
F.I.R.
and
protection
from
arrest
-
maintainability - allegations are that petitioners
are working as a Gang under the protection of
an advocate and they are also involved in
several FIRs regarding gang rape etc. against
several innocent persons and extracted money -
court finds that, Prima facie a case of cognizable
offence is made out against the petitioners
which requires a detailed investigation to be
carried out by the authorities - No blanket
orders staying arrest of the petitioners can be
passed in such matter - present case did not fall
under the category of rarest of the rare cases -
thus, writ petition not entertained - however,
Liberty given to file appropriate application u/S.
438 of Cr.P.C. seeking anticipatory bail and, to
file an Application u/S. 482 of Cr.P.C. for
quashing
of
FIR
-
writ
petition
stands
dismissed.(Para - 8, 12, 14, 16)

Writ Petition Dismissed. (E-11)

List of Cases cited: -
1. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah. & ors. (2021 SCC Online SC 315),

2. St. of Telangana Vs Habib Abdullah Jeelani (
2017 Vol. 2 SCC 779),

3. Nivedita Sharma Vs Cellular Operators
Association of India (2011 Vol. 14 SCC 337).

(Delivered by Hon'ble Gajendra Kumar, J.)

1. At the very outset, learned counsel
for the petitioners states that he does not
propose to file any rejoinder affidavit in
response to the counter affidavit filed by
the respondents.

2. Heard Sri Ajatshatru Pandey,
learned counsel for the petitioners and
learned counsel for the State-respondents.

3. The instant petition has been filed
on behalf of the petitioners with a prayer to
quash the FIR dated 07.08.2022 giving rise
to Case Crime No.0582 of 2022, under
Sections 384, 420, 195, 506, 120-B, 211
IPC,
Police
Station-Cantt.,
DistrictGorakhpur as well as not to arrest the
petitioners in pursuance of the impugned
FIR.

4. Prosecution story in brief is as
follows:

Petitioner no.1 (Nafisa) is leading
a Gang as "Nafisa Gang" and in her team,
there are five other members (co-accused)
namely, Bindrawati (petitioner no.2), Soni
(named accused in the impugned FIR),
Aarti (petitioner no.3), Indrawati (petitioner
no.4) and Tara Chauhan (petitioner no.5)
are the Members of the said Gang and the
aforesaid gang is being guided/protected by
co-accused,
namely,
Madhav
Tiwari,
Advocate (named accused in the impugned
FIR). It has further been alleged that
982 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid Gang is involved in filing the
several vague Applications under Section
156(3) Cr.P.C./complaint cases as well as
FIRs regarding gang rape and various
Sections of IPC & SC/ST Act against
several innocent persons and by lodging the
same, they used to abstract money.

5. Learned counsel for the petitioners
submitted that they are innocent and have
been falsely implicated in the present case
due to ulterior motive. Instant case is
nothing but a counter-blast of earlier cases,
lodged by the petitioners at various point of
time against respondent no.4 and other
accused persons and only with a view to
mount pressure upon the petitioners and
compromise in the earlier matters, present
FIR has been lodged. Even in an
Application under Section 156(3) Cr.P.C.
moved by the petitioner no.1 against
respondent
no.4/informant
(Khalid
@
Jiaurrahman) and others regarding an
incident, which is said to have taken place
on 04.09.2016 at 10:00 a.m., as the
aforesaid
accused
persons
were
pressurising upon the petitioner no.1 to
compromise the aforesaid case, and when
she denied the same, then all the accused
persons (respondent no.4 and other coaccused persons) entered inside her house
forcibly and brutally beaten her with 'lathidanda' and tore her clothes, due to which,
she received grievous injuries. The said
application was treated as complaint case
on 05.01.2017, and, thereafter, statements
of the witnesses under Section 200 and
under Section 202 Cr.P.C. were recorded
and the accused persons including the
informant were summoned by the court
below
on
28.08.2019.
Respondent
no.4/informant and his associates are
persons of criminal in nature and on several
occasions, they had committed serious
crime, for which, FIRs had been lodged by
the petitioners against them. Petitioners
allege false implication. Petitioners never
tried to blackmail any person and there is
no gang as has been alleged by the
respondent no.4 in the impugned FIR.
There is no cogent evidence available on
record against the petitioners so as to
implicate them in the present case.

6. Per contra, learned counsel for the
respondents
vehemently
opposed
the
contentions aforesaid and submitted that
petition itself is not maintainable under
Article 226 of the Constitution of India. It
is pointed out that the conduct of the
petitioners is required to be seen in the
present matter. It has further submitted that
informant/respondent no.4 has been falsely
implicated by the petitioners in several
cases as has been narrated in the memo of
the writ petition and even in one case
registered as Case Crime No.182 of 2016,
Final Report has also been submitted by the
Investigating Officer concerned, thereafter,
a protest petition was filed by the petitioner
no.1 and the said protest petition was
allowed and Final Report bearing No.146
of 2017 was rejected by the court below
and the same was treated as a complaint
case on 03.03.2020. Thereafter, the court
below
had
summoned
the
informant/respondent
no.4
and
other
accused persons under Sections 376-D and
506 IPC. Against the summoning order,
they (respondents in the present case) had
filed Criminal Misc. Application U/S 482
No.28592 of 2022 (Shahnaj Ansari and 3
Others Vs. State of U.P. and another), in
which, interim protection was granted to
them by the learned Single Judge vide
order dated 10.10.2022.

7.

Learned
counsel
for
the
respondents has further submitted that
investigation is yet to be carried out in the
matter. At this stage, it cannot be
2 All. Nafisa & Ors. Vs. State of U.P. & Ors.
983
ascertained whether the authorities are
filing a charge sheet against the petitioners
or closure report is being submitted.
Issuance of direction for taking no coercive
action is also not permissible in view of the
law laid down by the Hon'ble Supreme
Court
in
the
case
of
Neeharika
Infrastructure Pvt. Ltd. Vs. State of
Maharashtra and others; 2021 SCC
Online SC 315 as well as in the case of
State of Telangana Vs. Habib Abdullah
Jeelani; (2017) 2 SCC 779, wherein the
Hon'ble
Supreme
Court
has
highly
condemned the issuance of directions by
the High Courts in a casual manner. It is
submitted that the statutory provisions are
available and the petitioners should adhere
to the statutory provisions available to him
under law and should have at least filed an
application for grant of anticipatory bail
under Section 438 of Cr.P.C. Without even
approaching the competent Courts for
availing the remedy of anticipatory bail, he
has directly filed this petition under Article
226 of the Constitution of India. There are
statutory provisions under Section 482 of
Cr.P.C. for seeking for quashment of an
FIR. Bypassing the abovenoted statutory
provisions, this petition under Article 226
of the Constitution of India has been filed
seeking quashment of the proceedings
along with an FIR which is not permissible
under the law. It has further submitted that
petitioners are involved in filing of such
types of FIRs as well as complaint cases
against the innocent persons for raising the
illegal demands and are running a Gang in
the name of "Nafisa Gang" with the help of
one Madhav Tiwari, Advocate. As such, the
grounds taken therein by the counsel for the
petitioners are not sustainable in the eyes of
law and petition is liable to be dismissed.

7.

Considering
the
facts
and
circumstances of the case and having heard
learned counsel for the parties and after
perusal of the aforesaid dictum by the
Hon'ble Supreme Court, it is apparently
clear that no such orders for not arresting or
not taking any coercive action can be
passed in the pending investigation into the
matter. The petitioners are having a remedy
to approach the concerning Courts by filing
an anticipatory bail application under
Section 438 of Cr.P.C. and, thereafter, can
take a recourse under Section 482 of
Cr.P.C. wherein the High Court is having
an inherent power for quashment of FIR
but in the present case without following
the dictum of the Hon'ble Supreme Court,
instant petition under Article 226 of the
Constitution of India has been filed seeking
quashment of FIR as well as staying the
arrest of the petitioners, alleging that the
petitioners
are
unnecessarily
being
harassed. However, the fact remains that
bare perusal of the FIR which has been
registered against the petitioners prima
facie makes out a cognizable case for
which investigation is required in the
matter.

16. The issuance of such orders
by High Court was taken into consideration
by the Supreme Court in the case of Habib
Abdullah Jeelani (supra) and was again
taken note of by the Hon'ble Supreme
Court in the case of Neeharika (supra)
which reads as under :-

"67. This Court in the case of
Habib Abdullah Jeelani (supra), as such,
deprecated such practice/orders passed by
the High Courts, directing police not to
arrest, even while declining to interfere with
the quashing petition in exercise of powers
under Section 482 Cr.P.C. In the aforesaid
case before this Court, the High Court
dismissed the petition filed under Section 482
Cr.P.C. for quashing the FIR. However, while
984 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissing the quashing petition, the High
Court directed the police not to arrest the
petitioners during the pendency of the
investigation. While setting aside such order,
it is observed by this Court that such
direction amounts to an order under Section
438 Cr.P.C., albeit without satisfaction of the
conditions of the said provision and the same
is legally unacceptable. In the aforesaid
decision, it is specifically observed and held
by this Court that "it is absolutely
inconceivable and unthinkable to pass an
order directing the police not to arrest till the
investigation is completed while declining to
interfere or expressing opinion that it is not
appropriate to stay the investigation". It is
further observed that this kind of order is
really inappropriate and unseemly and it has
no sanction in law. It is further observed that
the
courts
should
oust
and
obstruct
unscrupulous litigants from invoking the
inherent jurisdiction of the Court on the drop
of a hat to file an application for quashing of
launching an FIR or investigation and then
seek relief by an interim order. It is further
observed that it is the obligation of the court
to keep such unprincipled and unethical
litigants at bay.

68. In the aforesaid decision, this
Court has further deprecated the orders
passed by the High Courts, while dismissing
the applications under Section 482 Cr.P.C. to
the effect that if the petitioner-accused
surrenders before the trial Magistrate, he
shall be admitted to bail on such terms and
conditions as deemed fit and appropriate to
be imposed by the Magistrate concerned. It is
observed that such orders are de hors the
powers conferred under Section 438 Cr.P.C.
That thereafter, this Court in paragraph 25
has observed as under:

"25. Having reminded the same,
presently we can only say that the types of
orders like the present one, are totally
unsustainable, for it is contrary to the
aforesaid settled principles and judicial
precedents. It is intellectual truancy to
avoid the precedents and issue directions
which are not in consonance with law. It is
the duty of a Judge to sustain the judicial
balance and not to think of an order which
can cause trauma to the process of
adjudication. It should be borne in mind
that the culture of adjudication is stabilised
when intellectual discipline is maintained
and further when such discipline constantly
keeps guard on the mind."

69. We are at pains to note that
despite the law laid down by this Court in
the case of Habib Abdullah Jeelani (supra),
deprecating such orders passed by the High
Courts of not to arrest during the pendency
of the investigation, even when the
quashing petitions under Section 482
Cr.P.C. or Article 226 of the Constitution of
India are dismissed, even thereafter also,
many High Courts are passing such 15
orders. The law declared/laid down by this
Court is binding on all the High Courts and
not following the law laid down by this
Court
would
have
a
very
serious
implications in the administration of
justice.

70. In the recent decision of this
Court in the case of Ravuri Krishna Murthy
(supra), this bench set aside the similar
order passed by the Andhra Pradesh High
Court of granting a blanket order of
protection from arrest, even after coming to
the conclusion that no case for quashing
was established. The High Court while
disposing of the quashing petition and
while refusing to quash the criminal
proceedings in exercise of powers under
Section 482 Cr.P.C. directed to complete
the investigation into the crime without
2 All. Nafisa & Ors. Vs. State of U.P. & Ors.
985
arresting the second petitioner - A2 and file
a final report, if any, in accordance with
law. The High Court also further passed an
order that the second petitioner - A2 to
appear before the investigating agency as
and when required and cooperate with the
investigating agency. After considering the
decision of this Court in the case of Habib
Abdullah Jeelani (supra), this Court set
aside the order passed by the High Court
restraining the investigating officer from
arresting the second accused.

71. Thus, it has been found that
despite absolute proposition of law laid
down by this Court in the case of Habib
Abdullah Jeelani (supra) that such a
blanket order of not to arrest till the
investigation is completed and the final
report is filed, passed while declining to
quash the criminal proceedings in exercise
of powers under Section 482 Cr.P.C, as

observed
hereinabove,
the
High
Courts have continued to pass such orders.
Therefore, we again reiterate the law laid
down by this Court in the case of Habib
Abdullah Jeelani (supra) and we direct all
the High Courts to scrupulously follow the
law laid down by this Court in the case of
Habib Abdullah Jeelani (supra) and the
law laid down by this Court in the present
case, which otherwise the High Courts are
bound to follow. We caution the High
Courts again against passing such orders
of not to arrest or "no coercive steps to be
taken" till the investigation is completed
and the final report is filed, while not
entertaining
quashing
petitions
under
Section 482 Cr.P.C. and/or Article 226 of
the Constitution of India.

72. Now so far as the legality of
the impugned interim order passed by the
High Court directing the investigating
agency/police "not to adopt any coercive
steps" against the accused is concerned, for
the reasons stated hereinbelow, the same is
unsustainable:

(i) that such a blanket interim
order passed by the High Court affects the
powers of the investigating agency to
investigate into the cognizable offences,
which otherwise is a statutory right/duty of
the police under the relevant provisions of
the Cr.P.C.;

(ii) that the interim order is a
cryptic order;

(iii) that no reasons whatsoever
have been assigned by the High Court,
while passing such a blanket order of "no
coercive steps to be adopted" by the police;

(iv) that it is not clear what the
High Court meant by passing the order of
"not to adopt any coercive steps", as it is
clear from the impugned interim order that
it was brought to the notice of the High
Court that so far as the accused are
concerned, they are already protected by
the interim protection granted by the
learned Sessions Court, and therefore there
was no further reason and/or justification
for the High Court to pass such an interim
order of "no coercive steps to be adopted".
If the High Court meant by passing such an
interim order of "no coercive steps"
directing the investigating agency/police
not to further investigate, in that case, such
a blanket order without assigning any
reasons whatsoever and without even
permitting the investigating agency to
further investigate into the allegations of
the
cognizable
offence
is
otherwise
unsustainable. It has affected the right of
the investigating agency to investigate into
the cognizable offences. While passing such
a blanket order, the High Court has not
indicated any reasons."
986 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The aforesaid aspect was
considered by the Hon'ble Supreme Court
in the case of Neeharika Infrastructure
(supra) wherein after a detailed analysis of
various provisions of criminal law and
various judgments passed by the Hon'ble
Supreme Court has drawn conclusion in
para 80 of the judgment which reads as
under :-

"80. In view of the above and for
the reasons stated above, our final
conclusions on the principal/core issue,
whether the High Court would be justified
in passing an interim order of stay of
investigation and/or "no coercive steps to
be adopted", during the pendency of the
quashing petition under Section 482
Cr.P.C and/or under Article 226 of the
Constitution of India and in what
circumstances and whether the High
Court would be justified in passing the
order of not to arrest the accused or "no
coercive steps to be adopted" during the
investigation
or
till
the
final
report/chargesheet is filed under Section
173 Cr.P.C., while dismissing/disposing
of/not
entertaining/not
quashing
the
criminal proceedings/complaint/FIR in
exercise of powers under Section 482
Cr.P.C. and/or under Article 226 of the
Constitution
of
India,
our
final
conclusions are as under:

(i) Police has the statutory right
and duty under the relevant provisions of
the Code of Criminal Procedure contained
in Chapter XIV of the Code to investigate
into a cognizable offence;

(ii) Courts would not thwart any
investigation into the cognizable offences;

(iii) It is only in cases where no
cognizable offence or offence of any
kind is disclosed in the first information
report that the Court will not permit an
investigation to go on;

(iv) The power of quashing
should be exercised sparingly with
circumspection, as it has been observed,
in the 'rarest of rare cases (not to be
confused with the formation in the
context of death penalty).

(v)
While
examining
an
FIR/complaint, quashing of which is
sought, the court cannot embark upon
an enquiry as to the reliability or
genuineness
or
otherwise
of
the
allegations made in the FIR/complaint;

(vi)
Criminal
proceedings
ought not to be scuttled at the initial
stage;

(vii)
Quashing
of
a
complaint/FIR should be an exception
rather than an ordinary rule;

(viii) Ordinarily, the courts are
barred from usurping the jurisdiction of
the police, since the two organs of the
State operate in two specific spheres of
activities and one ought not to tread over
the other sphere;

(ix)
The
functions
of
the
judiciary
and
the
police
are
complementary, not overlapping;

(x) Save in exceptional cases
where non-interference would result in
miscarriage of justice, the Court and the
judicial process should not interfere at
the stage of investigation of offences;

(xi) Extraordinary and inherent
powers of the Court do not confer an
2 All. Nafisa & Ors. Vs. State of U.P. & Ors.
987
arbitrary jurisdiction on the Court to act
according to its whims or caprice;

(xii) The first information report
is not an encyclopaedia which must
disclose all facts and details relating to the
offence reported. Therefore, when the
investigation by the police is in progress,
the court should not go into the merits of
the allegations in the FIR. Police must be
permitted to complete the investigation. It
would be premature to pronounce the
conclusion based on hazy facts that the
complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. After investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may
file an appropriate report/summary before
the learned Magistrate which may be
considered by the learned Magistrate in
accordance

(xiii) The power under Section
482 Cr.P.C. is very wide, but conferment of
wide power requires the court to be more
cautious. It casts an onerous and more
diligent duty on the court;

(xiv) However, at the same time,
the court, if it thinks fit, regard being had
to the parameters of quashing and the
self-restraint
imposed
by
law,
more
particularly the parameters laid down by
this Court in the cases of R.P. Kapur
(supra) and Bhajan Lal (supra), has the
jurisdiction to quash the FIR/complaint;

(xv) When a prayer for quashing
the FIR is made by the alleged accused
and the court when it exercises the power
under Section 482 Cr.P.C., only has to
consider whether the allegations in the
FIR disclose commission of a cognizable
offence or not. The court is not required to
consider on merits whether or not the
merits of the allegations make out a
cognizable offence and the court has to
permit the investigating agency/police to
investigate the allegations in the FIR;

(xvi) The aforesaid parameters
would be applicable and/or the aforesaid
aspects are required to be considered by
the High Court while passing an interim
order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India. However, an interim order of stay
of investigation during the pendency of
the quashing petition can be passed with
circumspection. Such an interim order
should not require to be passed routinely,
casually and/or mechanically. Normally,
when the investigation is in progress and
the facts are hazy and the entire
evidence/material is not before the High
Court, the High Court should restrain
itself from passing the interim order of not
to arrest or "no coercive steps to be
adopted" and the accused should be
relegated to apply for anticipatory bail
under Section 438 Cr.P.C. before the
competent court. The High Court shall not
and as such is not justified in passing the
order of not to arrest and/or "no coercive
steps" either during the investigation or
till the investigation is completed and/or
till the final report/chargesheet is filed
under
Section
173
Cr.P.C.,
while
dismissing/disposing
of
the
quashing
petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India.

(xvii) Even in a case where the
High Court is prima facie of the opinion
that an exceptional case is made out for
grant
of
interim
stay
of
further
988 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, after considering the broad
parameters while exercising the powers
under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India
referred to hereinabove, the High Court
has to give brief reasons why such an
interim order is warranted and/or is
required to be passed so that it can
demonstrate the application of mind by
the Court and the higher forum can
consider what was weighed with the High
Court while passing such an interim
order.

(xviii) Whenever an interim
order is passed by the High Court of "no
coercive steps to be adopted" within the
aforesaid parameters, the High Court
must clarify what does it mean by "no
coercive steps to be adopted" as the term
"no coercive steps to be adopted" can be
said to be too vague and/or broad which
can be misunderstood and/or misapplied."

11. It is seen that the Hon'ble
Supreme Court in the aforesaid case has
gone to an extent that no such orders not to
arrest or no coercive steps either during the
investigation or till the investigation is
completed or till the final report or charge
sheet is being filed under Section 173(3) of
Cr.P.C. while dismissing or disposing of the
quashing of petition shall be passed under
Section 482 of Cr.P.C. or under Article 226
of the Constitution of India.

12. The Hon'ble Supreme Court has
further observed that even in a case where
the High Court is prima facie of the opinion
that an exceptional case is made out for
grant
of
interim
stay
of
further
investigation after considering the broad
parameters then also the reasons are
required to be recorded while passing an
interim order so that it can demonstrate the
application of mind by the learned Court.
In the present case, it is evident from the
impugned FIR as well as complaint so filed
by the respondent no.4 on 25.04.2022,
wherein after direction of respondent
no.2/Senior
Superintendent
of
Police,
Gorakhpur, the concerned Circle Officer,
after
investigating
the
matter,
had
submitted
his
report
on
29.05.2022/30.05.2022 stating therein that
"petitioners are involved in running a Gang
in the name of "Nafisa Gang" under the
guidance of Madhav Tiwari, Advocate and
is a active Gang", as such, prima facie, the
involvement of the members of the gang as
has been alleged in the complaint dated
25.04.2022 under the protection of Madhav
Tiwari, Advocate is made out. In such
circumstances, when clearly a case of
cognizable offence is made out no such
blanket
orders
can
be
passed.
The
authorities are required to complete an
investigation into the matter and persons
showing themselves to be an innocent
person can take a recourse under the
relevant provisions of criminal law that is
under Section 438 of Cr.P.C. for seeking an
anticipatory bail in the matter.

20. The Hon'ble Supreme Court in the
case of Nivedita Sharma Vs. Cellular
Operators Association of India; (2011) 14
SCC 337, has held that "where hierarchy of
appeals was provided by the statute, a party
must exhaust the statutory remedies before
resorting to writ jurisdiction for relief, but
inspite of having alternative remedy the
writ petition has been preferred seeking
multiple reliefs, therefore, the petition was
not entertained being devoid of merits is
not maintainable and is dismissed." In the
present case, without exhausting the
remedy of seeking anticipatory bail under
Section 438 of Cr.P.C. or approaching this
Court by way of filing a petition under
2 All. Kishori Vs. State of U.P.
989
Section 482 of Cr.P.C. petition seeking
quashment of an FIR or a criminal
proceedings, he has taken a recourse to file
a writ petition under Article 226 of the
Constitution of India.

15. Looking to the contents of the
FIR, a prima facie case is made out against
the petitioners, which requires a detailed
investigation to be carried out by the
Authorities. In such circumstances, the case
does not fall under the category of rarest of
the rare cases, therefore, the relief praying
for quashment of FIR and for interim relief
not to arrest the petitioners, without
adhering to the statutory provisions of
criminal jurisprudence, this Court refrains
from entertaining the writ petition under
Article 226 of the Constitution of India.

15. With the aforesaid observations,
the writ petition stands dismissed.

16. However, the petitioners are at
liberty to file appropriate application under
Section 438 of Cr.P.C. seeking anticipatory
bail and, thereafter, may file an Application
under Section 482 of Cr.P.C. seeking
quashment of FIR.
----------
(2023) 2 ILRA 989
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 404 of 1988

Kishori ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.S.Singh
Counsel for the Opposite Party:
A.G.A.

Criminal Law
- Evidence Act,1872
-
Section 3 - Testimony of Witness - Minor
Contradiction - When Immaterial - One is
required to consider the entire evidence as
a whole with the other evidence on record
- Mere one sentence here or there and
that too to the question asked by the
defence in the cross-examination cannot
be considered stand alone - if there are
minor
discrepancies
or
minor
contradictions in the testimony of the
witness which does not adversely affect
the case of the prosecution then it should
not be taken into consideration - minor
discrepancies not touching upon the core
of the prosecution case, would not affect
the credibility of the witnesses or the
prosecution case (Para 31, 34)

Criminal Law - Indian Penal Code,1860 -
Section 308 - Attempt to commit culpable
homicide - In the F.I.R., PW-1, the
informant, mentioned that at the time of
the incident, he along with Sidhdha and
Mahipal was present on the spot - In his
evidence, he corroborated being present
at the place of occurrence - A minor
contradiction
occurred
in
the
crossexamination, when PW-1 stated that
 when injured raised an alarm, they
rushed towards him - But at the same
moment PW1, the informant stated that
he had seen the incident himself - During
his cross examination specific question
was asked from this witness "when you
had seen the incident then why did you
ask?" to which he replied "I did not ask
about who hit my brother, I only asked
where he was hit with the spear" - Held -
evidence of PW-1 and PW-2 as a whole,
inspires the confidence and has ring of
truth - considering the evidence of injured
witness PW-2 Ram Sanehi, PW-1 Ram
Asrey in the capacity of the informant as
well as the eyewitness, and the medical
evidence,
the
evidence
produced
in
defence by accused Kishori does not
create any doubt about the prosecution
version - trial Court rightly convicted the