# Sher Singh & Anr v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-14
- **Case number:** Crl. Misc. Writ Petition No. 23385 of 2019
- **Bench:** Naheed Ara Moonis, Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-singh-anr-v-state-of-u-p-ors-45289
- **Pages:** 5

## Headnote

A. Criminal Law-Indian Penal Code,1860Sections 363, 366, 506, 328,342, 354Quashing of FIR-issuance of non-bailable
warrant and proceedings u/s 82 Cr.P.C.
can be exercised even in the investigation
when the accused were absconding after
lodging FIR-investigating officers raided
successively for the arrest of accusedunder
compelling
circumstances,
investigating officer moved application to
issue
non-bailable
warrant
as
the
accused were trying to prolong the
investigation-Magistrate
is
fully
competent to issue warrant to apprehend
the culprit even in aid of investigation-
Hence, dismissed.(Para 7 to 12)

B. Criminal Law-section 73 Cr.P.C. gives
power to Magistrate to direct a warrant
for the person who is accused of a nonbailable
warrant
and
is
evading
arrest.(Para 14)

In the instant case accused were not paying
heed to summons, Magistrate resorted to
issuance of non-bailable warrant of arrest after
being satisfied that the accused/petitioners are
avoiding to appear before the investigating
officer intentionally.(Para 16)

Crl. Misc. writ petition dismissed. (E-6)

List of Cases Cited:-

## Text

34 INDIAN LAW REPORTS ALLAHABAD SERIES
There is, however, in the opinion of the
Court no such ground disentitling the
juvenile to bail under the proviso to
Section 12(1) of the Act so as to keep him
deprived of the company of his family
which is the best school for any child. It is
also not the case that it is a family of
criminals
and
delinquents.
The
revisionist's family is a normal, average
and
happy
family
as
the
social
investigation report would show, though
they may not be an affluent family."

6. It is also submitted that the
revisionist is in custody since 24.04.2019
and the trial may take some more time.

7.

In
view
of
the
above
circumstances, the revision is allowed.
Impugned orders dated 20.09.2019, passed
by the learned Additional Sessions Judge,
Court No.1/Special Judge, POCSO Act,
Ambedkar Nagar in Criminal Appeal
No.37 of 2019 (Manish Kanaujia Vs. State
of U.P. & another) and order dated
30.07.2019, passed by the Juvenile Justice
Board,
Ambedkar
Nagar
in
Bail
Application No. 22 of 2019, relating to
Crime No. 65 of 2019, under Sections 363,
366, 376 IPC and Section 3/4 POCSO Act,
Police Station Bhiti, District Ambedkar
Nagar are hereby set aside. The bail
application of the revisionist is allowed.

8. Let the revisionist (Manish
Kanaujia)
through
his
natural
guardian/father Ram Bakash be released
on bail in Crime No. 65 of 2019, under
Sections 363, 366, 376 IPC & Section 3/4
POCSO Act, Police Station Bhiti, District
Ambedkar Nagar on his father furnishing a
personal bond with two sureties in the like
amount to the satisfaction of the Juvenile
Justice Board, Ambedkar Nagar, subject to
the following conditions:

(i)
that
the
natural
guardian/father will furnish an undertaking
that upon release on bail the juvenile will
not be permitted to come into contact or
association with any known criminal or be
exposed to any moral, physical or
psychological danger and further that the
father will ensure that the juvenile will not
repeat the offence.

(ii) that the father will further
furnish an undertaking to the effect that
the juvenile will be placed in a school and
encouraged to his studies and not allow to
waste his time in unproductive and mere
recreational pursuits.

(iii) The revisionist and his
father will report to the District Probation
Officer on the first Monday of every
month with effect from the first Monday
of the month next after release from
custody, and, if during any calendar month
the first Monday falls on a holiday then on
the following working day.

(iv)
The
District
Probation
Officer will keep strict vigil on the
activities of the revisionist and regularly
draw up his social investigation report that
would be submitted to the Juvenile Justice
Board,
Ambedkar
Nagar
on
such
periodical basis as the Juvenile Justice
Board determines.
----------
(2020)02ILR A34
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2019

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Crl. Misc. Writ Petition No. 23385 of 2019

Sher Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
4 All. Sher Singh & Anr.Vs. State of U.P. & Ors.
35
Counsel for the Petitioners:
Sri Ajay Sengar

Counsel for the Respondents:
A.G.A., Sri Vijay Singh Sengar

A. Criminal Law-Indian Penal Code,1860Sections 363, 366, 506, 328,342, 354Quashing of FIR-issuance of non-bailable
warrant and proceedings u/s 82 Cr.P.C.
can be exercised even in the investigation
when the accused were absconding after
lodging FIR-investigating officers raided
successively for the arrest of accusedunder
compelling
circumstances,
investigating officer moved application to
issue
non-bailable
warrant
as
the
accused were trying to prolong the
investigation-Magistrate
is
fully
competent to issue warrant to apprehend
the culprit even in aid of investigation-
Hence, dismissed.(Para 7 to 12)

B. Criminal Law-section 73 Cr.P.C. gives
power to Magistrate to direct a warrant
for the person who is accused of a nonbailable
warrant
and
is
evading
arrest.(Para 14)

In the instant case accused were not paying
heed to summons, Magistrate resorted to
issuance of non-bailable warrant of arrest after
being satisfied that the accused/petitioners are
avoiding to appear before the investigating
officer intentionally.(Para 16)

Crl. Misc. writ petition dismissed. (E-6)

List of Cases Cited:-

1. State thru CBI Vs. Dawood Ibrahim Kaskar &
Ors.,(2000) 10 SCC 438

(Delivered by Hon'ble Naheed Ara
Moonis, J. & Hon'ble Anil Kumar-IX, J.)

1. Heard Shri Ajay Sengar, learned
counsel for the petitioners, Shri Vijay
Singh Sengar, learned counsel appearing
on behalf of respondent No. 3 and learned
Additional Government Advocate for the
State.

2. By means of the instant writ
petition, the petitioners have prayed for
quashing of the impugned order dated
17.09.2019 passed by the learned Chief
Judicial Magistrate, Jalaun at Orai in Case
Crime No. 00141 of 2019, under Sections
366, 506, 328, 354 IPC, Police Station
Nadigaon, district Jalaun. It is further
prayed that FIR in the aforesaid case may
also be quashed.

3. The brief facts of the case are that
on 30.5.2019, an FIR was lodged under
Sections 363/366 IPC by respondent No. 3
in respect of the occurrence dated
29.5.2019 against the petitioners that they
came on motorcycle and taken away his
niece. The persons who had witnessed the
occurrence, chased the accused persons
and ultimately petitioner No. 1, Sher Singh
was nabbed, who confessed that he along
with Vivek have taken away the victim.
He further disclosed that he had left both
Vivek and victim at the railway station on
his motorcycle.

4. The victim was recovered and her
statement was recorded under Section 164
Cr.P.C. on 13.6.2019 before the concerned
Magistrate wherein she has disclosed that
accused Vivek and Sher Singh had taken
her away on motorcycle at pistol point and
threatened to kill her and her brother in
case she makes hue and cry. They took her
to Auraiya on motorcycle and therefrom
she was taken to Delhi on roadways bus by
Vivek Kumar. On the way to Delhi the
prosecutrix was given cold drink and after
consuming it, she became unconscious.
She further disclosed that at Delhi Ranu,
Gullu and Govind Singh also joined
accused Vivek and they were planning to
36 INDIAN LAW REPORTS ALLAHABAD SERIES
sell her. At Delhi accused Vivek Singh had
molested her. She also stated that as to
how she reached the police is not known to
her as at Delhi accused-Vivek has given
some intoxicant to her and thereafter she
became unconscious.

5. On the basis of the aforesaid
statement of the victim, the investigating
officer added sections, 366, 506, 328, 342,
354 IPC in the aforesaid case.

6. Learned counsel for the petitioners
submits that the first information report
lodged against the petitioners is absolutely
false and concocted. There is no credible
evidence with respect to the abduction of
the niece of the first informant.

7. Learned counsel for the petitioners
further submits that learned Magistrate has
passed the impugned order on the basis of
the application moved by the investigating
officer that petitioners are not cooperating
with the investigation. It is also submitted
that investigation is still continuing and no
report has been submitted under Section
173(2) Cr.P.C. and hence issuance of nonbailable warrant against the petitioner
during the pendency of investigation is
liable to be quashed. In support of his
submission, learned counsel for the
petitioner has relied upon the decision of
the Hon'ble Apex Court in State through
CBI Vs. Dawood Ibrahim Kaskar and
others, (2000) 10 SCC 438, wherein
Hon'ble Supreme Court has held that
power of issuance of non-bailable warrant
can be exercised by the learned Magistrate
for appearance of accused before the Court
and not before the police in aid of
investigation.

8. Learned counsel for the petitioners
also submitted that on the strength of
aforesaid order of Hon'ble Supreme Court,
in similar matter, the coordinate Bench of
this Court vide order dated 30.3.2018 has
granted interim order in favour of the
accused in Criminal Misc. Writ Petition
No. 7833 of 2018.

9. Per contra, learned Additional
Government Advocate has contended that
impugned order has been passed by the
learned Magistrate issuing non-bailable
warrant after taking into account the fact
that petitioners were absconding after
lodging of the FIR since 16.8.2019 and the
investigating officer has raided the house
of the petitioners on ten dates for the arrest
of the petitioners as indicated in the
application moved by the investigating
officer before the court concerned. Hence,
under
compelling
circumstances
the
investigating
officer
has
moved
the
application on 16.9.2019 requesting the
court to issue non-bailable warrant and for
proceedings under Section 82 Cr.P.C.

10. Learned Additional Government
Advocate further submits that from the
perusal of FIR, prima facie cognizable
offence is made out against the petitioner.
Hence, the FIR does not deserve to be
quashed.

11. Perusal of the impugned order
indicates that there was no interim order in
favour of the petitioners and they were
trying to prolong the investigation, who
were involved in serious offence of
kidnapping and hence learned Magistrate
has rightly exercise his power issuing nonbailable warrant against them.

12. In Dawood Ibrahim Kaskar
(Supra)
Dawood
Ibrahim
Kaskar
(Supra),
police,
after
completing
investigation, submitted composite charge
4 All. Sher Singh & Anr.Vs. State of U.P. & Ors.
37
sheet on 04.11.1993 before the designated
Court against 198 persons showing 45 of
them as absconders for commission of
offence.
However,
on
11.11.1993,
Government of India directed further
investigation by the CBI. During the
course of investigation, on 24.7.1995 CBI
arrested one Mohd. Salim Mira Moiuddin
Shaikh alias Salim Kutta, one of the
absconders nominated in the charge sheet.
In his confessional statement, he disclosed
that respondent Nos. 2 to 7 therein had
also taken active part in commission of
conspiracy.
On
the
basis
of
the
confessional statement of Salim Kutta,
police raided their hideouts to arrest them,
but in vain. Thereafter CBI moved an
application before the Designated Court
for issuance of non-bailable warrant for
their arrest, which was rejected by the
Designated Court. In appeal Hon'ble
Supreme Court held that warrant can be
issued only for the production of the
accused for appearance before the Court
and not in aid of investigation.

13. In Dawood Ibrahim Kaskar
(Supra) the investigation was completed
and charge sheet submitted, whereas in the
instant case, the investigation is still
continuing and accused is avoiding arrest
and not appearing before the police for
getting his statement recorded and not
cooperating with the investigation.

14. For better appreciation of the
case of the petitioners it would be apposite
to quote Section 73 Cr.P.C., which reads
as under"

Warrant may be directed to any
person:- (1) The Chief Judicial Magistrate
or a Magistrate of the first class may
direct a warrant to any person within his
local jurisdiction for the arrest of any
escaped convict, proclaimed offender or of
any person who is accused of a nonbailable offence and is evading arrest.

(2)
Such
person
shall
acknowledge in writing the receipt of the
warrant and shall execute it if the person
for whose arrest it was issued, is in, or
enters on, any land or other property
under his charge.

(3) When the person against
whom such warrant is issued is arrested,
he shall be made over with the warrant to
the nearest police officer, who shall cause
him to be taken before a Magistrate
having jurisdiction in the case, unless
security is taken under Section 71."

15. From the perusal of the aforesaid
provisions, it is apparent that if during
investigation the investigating officer
intends to arrest the person accused of the
offence, he has to seek for and obtain a
warrant of arrest from the Magistrate. The
Magistrate is fully competent to issue nonbailable warrant to apprehend recalcitrant
person who is accused of non-bailable
offence and is evading arrest. In this case,
the learned Magistrate has exercised his
judicial discretion considering the gravity
of the offence as well as taking into
account the fact that petitioners are not
cooperating with the investigation as
successively the police had raided their
premises so that they may be questioned in
details
regarding
various
facet
of
commission of crime. Hence, it was
necessary to curtail their freedom in order
to enable the investigating officer to
proceed without any hindrance. Ordinarily
the arrest is a part of process of
investigation. As statement of the victim
has
been
recorded
showing
the
involvement of the petitioners in the
commission of the crime, in the opinion of
the investigating officer it was necessary
38 INDIAN LAW REPORTS ALLAHABAD SERIES
to effectuate their arrest and in doing so he
has committed no fault in moving before
the Court to obtain non-bailable warrant or
initiate proceedings under Section 82
Cr.P.C.

16. No doubt, personal liberty of a
person is paramount and the Courts are not
expected to issue warrant in casual manner
without proper application of mind. In the
instant case when the petitioners were not
paying any heed to the summons, learned
Magistrate has resorted to issuance of nonbailable warrant of arrest after being fully
satisfied that the petitioners are avoiding to
appear
before
the
investigating
officer
intentionally. Instead of appearing before the
investigating officer, it is the audacity of the
petitioners to have approached before this
court to quash the order of non-bailable
warrant which is highly contemptible also.

17. Thus, we see no ground to quash the
order dated 17.09.2019 passed by the learned
Chief Judicial Magistrate, Jalaun at Orai or to
quash the impugned FIR in Case Crime No.
00141 of 2019, under Sections 366, 506, 328,
354 IPC, Police Station Nadigaon, district
Jalaun. The writ petition sans any merit is
accordingly dismissed.

18. However, it is provided that in case
the petitioners appear before the court
concerned within four weeks from today and
apply for bail in the aforesaid case, their prayer
for bail shall be considered and disposed of in
accordance with law.
----------
(2020)02ILR A38
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2020
BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Crl. Misc. Writ Petition No. 24908 of 2018

Silpa Devi Patel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mamta Sen, Sri Kailash Pati Singh Yadav,
Sri Rakesh Prasad

Counsel for the Respondents:
A.G.A., Swati Agrawal

A. Criminal Law-Indian Penal Code, 1860Sections 323,376,504,506,452 & Prevention
of Children from Sexual Offence Act, 2012Sections 3/4 -challenge to- quashing of order
passed by Secretary,U.P. Government for
transferring
the
investigation
to
the
C.B.C.I.D.-while police already submitted
chargesheet-cognizance taken of -trial is
pending-accused availed various remedy
available from high court to Apex court-when
he failed, he applied for transfer the
investigation agency just to avoid the trial-it
is the trite law that accused persons can not
choose as to which investigation agency must
investigate the alleged offence-accused has
no right with reference to the matter of
investigatin
or
mode
of
prosecutionHence,dismissed.(Para 8 to 12)

Crl. Misc. writ petition dismissed. (E-6)

List of Cases Cited:-

1. Narmada Bai Vs. St. Of Guj. &
Ors.,(2011) 5 SCC 79

2. Sajiv Rajendra Bhatt Vs. UOI & Ors,
(2016) 1 SCC 1

3. Romila Thapar & Ors. Vs. UOI & Ors.,W.P.No, 260
of 2018

(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Ajit Kumar, J.)

1. Sri Rakesh Prasad has filed
vakalatnama on behalf of the petitioner