# Sheoraj Singh & Ors v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-21
- **Case number:** Crl. Misc. Writ Petition No. 17665 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheoraj-singh-ors-v-state-of-u-p-ors-47168
- **Pages:** 6

## Headnote

evidence -does not fall within the arena of
jurisdiction
under
Article
226
of
Constitution of India.

W.P. dismissed. (E-7)

List of Cases cited:

## Text

276 INDIAN LAW REPORTS ALLAHABAD SERIES
facie case for applicability of the
provisions of the Act, 1989. If an accused
is able to demonstrate that the complaint
does not make out "a prima facie case
for applicability of the provisions of the
Act, 1989, then the bar created by
Sections 18 and 18(A) shall not apply.

10. In view of the above discussion we
hold that provision of Section 438 Cr. P.C.
shall be available to an accused for
anticipatory bail for alleged offences under
the Scheduled Castes and Scheduled Tribes
Act, 1989, if the accused/applicant is able to
demonstrate that the complaint/F.I.R. does
not make out " a prima facie" case for
applicability of the provisions of the Act
1989. In such cases the bar created under
sections 18 and 18A of the Act, 1989 shall
not apply.

11. Since the learned counsel for the
petitioner has taken a stand before us that
prima facie no case has been made out under
Section 3 (1) (dh) of the Act, 1989, therefore,
it is for the petitioner to demonstrate the
position before the competent court in his
anticipatory bail application and if the
petitioner succeeds in demonstrating, then the
bar of Sections 18 and 18-A of the Act, 1989
shall not come in the way of the application
of the petitioner for anticipatory bail under
Section 438, Cr.P.C.

12. With the aforesaid observations, we
dispose of this writ petition, leaving it open
to the petitioner to apply for anticipatory bail
before the competent authority. It is made
clear that we have not expressed any opinion
on merits of the case of the petitioner.
----------
(2021)08ILR A276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2021
BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. Writ Petition No. 17665 of 2020

Sheoraj Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ishir Sripat

Counsel for the Respondents:
A.G.A.

Challenged made to the FIR -to quashcannot be examined by the Writ Court-as
questions of facts and appreciation of
evidence -does not fall within the arena of
jurisdiction
under
Article
226
of
Constitution of India.

W.P. dismissed. (E-7)

List of Cases cited:

1. St. of Har. & ors. Vs Ch.Bhajan Lal, AIR 1992
SC 605

2. U.O.I.Vs Prakash P. Hinduja & anr., (2003) 6
SCC 195

3. Ajit Singh @ Muraha Vs St. of U.P. (2006(56)
ACC433)

4. Satya Pal Vs St.of U.P. (2000 Cr.L.J. 569)

5.St. of Orissa Vs Saroj Kumar Sahoo (2005) 13
SCC 540

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Ishir Sripat, learned
counsel for the petitioners and learned
A.G.A. for the State.
8 All. Sheoraj Singh & Ors. Vs. State of U.P. & Ors.
277

2.

Petitioners
have
made
the
following prayers:-

(i) issue a writ of certiorari
quashing the First Information Report dated
10.12.2020 registered as Case Crime no.
0626 of 2020, under Sections 304B, 498A
IPC and 3⁄4 Dowry Prohibition Act, P.S.
Ghandhi Park, District Aligarh.

(ii) issue a writ of mandamus
directing the respondent no. 2 not to arrest
the petitioners in Case Crime no. 0626 of
2020, under Sections 304B, 498A IPC and
3⁄4 Dowry Prohibition Act, P.S. Ghandhi
Park, District Aligarh.

(iii) Any other or further writ,
order or direction as is deemed fit and
proper by this Hon'ble Court.

3. Facts in nutshell for our puposes are
that daughter of the first informnat had
married Pushpendra Singh. The daughter of
the first informant on 2.8.2020 gave birth a
girl child at Jaideep Nursing Home, which
was now creator of the problem between the
parties. It is a matter of fact that after delivery
when the deceased was shifted to Varun
Hospital, she died. The respondent no. 3
preferred a complaint under Section 156(3)
Cr.P.C., which was registered as Application
No. 256/11/20 before the Chief Judicial
Magistrate, Aligarh. The court of C.J.M.,
Aligarh directed the concerned police station
to submit a report on the said complaint. The
police station submitted a report before the
learned Chief Judicial Magistrate along with
death certificate issued by the hospital.
Unfotunately, death of the Vimlesh was
projected as death for dowry and all six
petitioners were arrayed as accused. Learned
counsel for the petitioner relied upon the
reports issued by the hospital and the report
of the police but the first informant was bent
on seeing all accused to be prosecuted.

4. Going through the factual scenario
and as the investigation is on and the death
is occurred during seven years of the
marriage, at this stage, we would be loath
in interfering with the investigation.

5. It has been argued by learned
counsel for the petitioner that entire
allegations made in the impugned F.I.R.
against the petitioners are false and
baseless and the petitioners have been
falsely implicated only for the purpose of
harrassment. Brief allegations levelled in
the F.I.R. are that the daughter of the first
informant Vimlesh married to Pushpendra
Singh on 16.11.2016 in which nearly Rs.
12 lakhs were spend by him but the family
of the husband was not happy and kept
demanding for dowry and a Car. A girl
child was born out of the wedlock within
one year of the marriage and thereafter the
daughter of the first informant was
expecting another child in the month of
August, 2020. Learned A.G.A. further
contended that the in-laws threatened the
daughter of the first informant that if she
will give birth to another girl child then
they will get her kill during the delivery of
the
child.
Learned
A.G.A.
further
contended that on 2.8.2020 the daughter of
first informant gave birth to a girl child at
Jaideep Nursing Home Aligarh and as soon
as the girl child was born, the petitioners
went in to meet the doctor and suddenly the
wife of first informant who was also
present in the nursing home during the
delivery heard her daughter, Vimlesh, now
deceased, shouting in pain.

6. It has been argued that the
petitioners have not committed any offence
and prima facie no case is made out against
them and hence the present F.I.R. is liable
to be quashed.
278 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Per contra learned A.G.A. has
submitted that from the perusal of the
allegations made in the F.I.R., it cannot be
said that no cognizable offence is made out,
hence the impunged F.I.R. is not liable to
be quashed.

8. It has been well settled by the
Hon'ble Apex Court that the jurisdiction
should be exercised sparingly and only in
exceptional
cases
while
quashing
a
complaint, F.I.R. or a charge-sheet and
Courts should not interfere with the
investigations of cognizable offences as a
matter of routine . On the contrary, if no
prima facie case is made out from the the
F.I.R. or the complaint, the F.I.R. or the
charge-sheet may be quashed in exercise of
powers under Article 226 or inherent
powers under Section 482 of the Cr.P.C.
The Hon'ble Apex Court, in the case of
State of Haryana and others Vs. Ch. Bhajan
Lal, AIR 1992 SC 605 Supreme Court held
that those guidelines should be exercised
sparingly and that too in the rarest of rare
cases. Guidelines are as follows:

(1) Where the allegations made in
the First Information Report or the
complaint, even if they are taken at their
face value and accepted in their entirety to
do not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
First
Information
Report
and
other
materials, if any, accompanying the FIR do
not
disclose
a
cognizable
offence,
justifying
an
investigation
by police
officers under Section 156(1) of the Code
except under an order of a Magistrate
within the purview of Section 156(2) of the
Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can every reach a
just conclusion that there is sufficient
ground for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

9. The Hon'ble Apex Court, further in
the case of Union of India vs. Prakash P.
Hinduja and Another, (2003) 6 SCC 195
has rediscussed the scope of quashing.
Howver, in the said case, The Hon'ble
Apex Court has narrowed down the scope
of Ch. Bhajan Lal (supra) and held as
follows:

"The grounds on which power
under Section 482 Cr.P.C. can be exercised
to quash the criminal proceedings are: (1)
8 All. Sheoraj Singh & Ors. Vs. State of U.P. & Ors.
279
where the allegations made in the FIR or
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused, (2)
where the uncontroverted allegations made
in the FIR or the complaint and the
evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused, (3) where there is an express legal
bar engrafted in any of the provisions of the
Code of Criminal Procedure or the Act
concerned
to
the
institution
and
continuance of the proceedings. But this
power has to be exercised in a rare case and
with great circumspection."

10. In case of State of Haryana v.
Bhajan Lal & Ors. (supra) also, in
guideline number 3 it was laid down that
where the uncontroverted allegations made
in the F.I.R. or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence and
do not make out a case against the accused,
the Court may quash the FIR as well as the
investigations, however a note of caution
was added by observing that the power of
quashing a criminal proceeding should be
exercised
sparingly
and
with
circumspection and that too in the rarest of
rare cases. It was held that the Court would
not be justified in embarking upon an
inquiry as to the reliability or genuineness
or otherwise of the allegations made in the
F.I.R. or the complaint.

11. The Hon'ble Apex Court, further
in the various precedents i.e. Rupan Deol
Bajaj v. K.P.S. Gill; reported in (1995)
SCC (Cri) 1059, Rajesh Bajaj v. State of
NCT of Delhi; reported in (1999) 3 SCC
259 and Medchl Chemicals & Pharma
(P) Ltd. v. Biological E Ltd. & Ors;
reported in 2000 SCC (Cri) 615, has
made crystal clear that if a prima facie case
is made out , theCourt should not quash the
complaint. On the contrary, it was held that
the Courts should not hesitate to quash the
complaint if no prima facie case is made
out. However, as a note of caution while
considering such petitions, the Courts
should be careful. Thus, there is no
conundrum about the legal proposition that
in case a prima facie case is made out, the
F.I.R. or the proceedings in consequence
thereof cannot be quashed.

12. Further the Full Bench of this
Court also in the case of Ajit Singh @
Muraha v. State of U.P. (2006(56)
ACC433) reaffirmed the stand taken by the
earlier Full Bench in Satya Pal v. State of
U.P. (2000 Cr.L.J. 569) after considering
the various decisions including State of
Haryana vs. Bhajan Lal (AIR 1992 SC
604) no case of interference with the
investigation is made out until and unless
cognizable
offence
is
not
ex-facie
discernible or there is any statutory
restriction operating on the power of the
Police to investigate a case.

13. In the instant case, there are
allegations in the impugned F.I.R. that the
petitioners have committed murder of the
deceased for illegal demand of dowry. It is
alleged that deceased Smt. Vimlesh died
due to post delivery complications and no
conspiracy was made to kill the deceased.
No offence under Section 304-B IPC is
made out against the petitioners. The
family members of the husband of the
deceased tried to their best and shifted her
to a superior hospital but the deceased
could not be saved. The first informant is
trying to misuse process of law and by
means of the present case he is trying to
create pressure on the husband of the
280 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased to give custody of the children to
the first informant.

14. The submissions raised by learned
counsel for petitioners relate to the
questions of fact and thus, can not be
examined by this Court in proceedings
under Article 226 of the Constitution of
India. The appreciation of evidence or the
reliability of the allegations can not be
examined at this stage. In State of Orissa
v. Saroj Kumar Sahoo (2005) 13 SCC
540 it has been held that probabilities of the
prosecution version cannot be analysed at
this stage. Likewise, the allegations of mala
fides of the informant are of secondary
importance. The relevant passage reads
thus: (SCC. 550, para 11).

"11......It would not be proper for
the High Court to analyse the case of the
complainant in the light of all probabilities
in order to determine whether a conviction
would be sustainable and on such premises
arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to
assess the material before it and conclude
that the complaint cannot be proceeded
with."

15. From the above discussed case
laws and after giving our thoughful
consideration to the facts of the instant
case, it can be safely concluded that the
contentions raised by the learned counsel
for the petitioner(s) can not be examined by
this Court at this stage. The adjudication of
questions of facts and appreciation of
evidence or examining the reliability and
credibility of the version, does not fall
within the arena of jurisdiction under
Article 226 of the Constitution of India.

16. In view of the material on record
no case of inteference is made out and the
impugned criminal proceeding cannot be
said to be manifestly attended with
malafide and maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him
due to private and personal venonmous
agenda. F.I.R. or criminal proceedings can
be
quashed
only
according
to
the
parameters laid down by Hon'ble Apex
Court in catena of its judgement.

17. However, if the petitioners
appears before the court below seeking
their liberty by way of application under
Section 438 Cr.P.C., and or 437 read with
439 Cr.P.C., the same shall be decided
immidiately as at this stage role of each of
the accused is not borne out. The
petitioners are not relevant who are not
stationed at the same place when the
offence took place. In that view of the
matter, we direct the petitioners to move
the court below for to be enlarged on bail.
None of the observations are for grant or
refuse of bail but are under the realm of
writ jurisdiction. We refuse to intertain the
petition as we are not hundred per-cent sure
as what is the role genesis from each of the
accused and therefore, we are restraining
ourselves from entertaining this petition at
this stage as we do not think at this stage
that the prosecution can be nibbed in its
inception.

18. In the light of above, we are of the
opinion that present petition does not fall in
any of such category, wherein this Court
can exercise jurisdiction under Article 226
of the Constitution of India to quash the
impugned F.I.R. Hence no ground exists
for quashing of the F.I.R. or staying the
arrest of the petitioner(s).

19. In view of aforesaid, the petition
lacks merit and thus, liable to be dismissed.
8 All. Haushila Dubey Vs. The State of U.P. & Ors.
281

20.

Accordingly,
petition
is
dismissed.
----------
(2021)08ILR A281
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Writ Petition No. 21817 of 2019

Haushila Dubey ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brahm Prakash Mishra

Counsel for the Respondents:
G.A.

Externment
order
passed
without
considering Petitioner's representationmany years have lapsed since expiry of
the order-Appeal also dismissed-no cause
of action survives.

W.P. disposed.(E-7)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
petitioner, learned AGA for the State and
perused the record.

2. This writ petition has been filed
with the following prayers;

"i) issue a writ, order or direction
in the nature of certiorari to quash the order
dated 25.03.2019 passed by Commissioner,
Varanasi Division, Varanasi in Case
No.500
of
2015
(Computer
Case
No.C2015140000500 (Haushila Dubey Vs.
State of U.P.) under Section 3(1) U.P.
Control of Goondas Act, 1970, through
Additional District Magistrate ( Civil
Supply), Varanasi passed by order dated
11.03.2015 in Suit No.124 of 2014 ( State
of U.P. Vs. Haushila Dubey) under Section
3(1) U.P. Control of Goondas Act, 1970,
Police Station Cholapur District Varanasi.

ii) issue a writ, order or direction
in the nature of mandamus commanding
the respondent no.2 & 3 to stay the effect
and operation of the order dated 25.03.2019
passed
by
Commissioner,
Varanasi
Division, Varanasi in Case No.500 of 2015
(Computer
Case
No.C2015140000500
(Haushila Dubey Vs. State of U.P.) under
Section 3(1) U.P. Control of Goondas Act,
1970,
through
Additional
District
Magistrate ( Civil Supply), Varanasi passed
by order dated 11.03.2015 in Suit No.124
of 2014 ( State of U.P. Vs. Haushila
Dubey) under Section 3(1) U.P. Control of
Goondas Act, 1970.

iii) issue any other and further
writ, order or direction as this Hon'ble
Court may deem fit and proper, in the
circumstances of the case.

iv) Award the costs to the
petitioners."

3. Learned counsel for the petitioner
submits that the notice under Section 3(1)
U.P. Control of Goondas Act, 1970
(hereinafter referred to as the 'Act') has
been issued to the petitioner for submitting
representation/reply,
thereafter,
the
petitioner
submitted
a
detailed
representation/reply but the respondent
No.3 without considering the submissions
made
by
the
petitioner
passed
the
externment order dated 11.03.2015 and
petitioner was directed to remain outside
the district for a period of one month being
aggrieved against the said order, the
petitioner preferred an appeal, under
Section
6
of
the
Act
before
the