# Shobhit Nehra & Anr v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 7 ILRA 1186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-10
- **Case number:** Crl. Misc. W.P. No. 7463 of 2024
- **Bench:** Siddharth, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shobhit-nehra-anr-v-state-of-u-p-ors-opp-parties-52210
- **Pages:** 12

## Headnote

Criminal Law - FIR against petitioners
challenged- A long history of civil disputes
between the parties- However, it does not
mean that police investigation against the
criminal allegations during the pendency
of civil suit cannot be carried out- It is the
duty of constitutional court to secure
personal liberty of individuals- Protection
from
arrest
until
the
submission
of
chargesheet can be given- FIRs being
written by the experts- Relegating the
petitioners to the remedy under Section
438 CrPC- Not justifiable in light of huge
pendency of cases in St. of UP- Right to
liberty
protected
without
obstructing
investigation and without quashing FIR-
petition disposed of. (Paras 31, 33, 34, 35,
37, 38, 39, 40, 41, 43, 46 and 47)

HELD:

Keeping in view, the allegations made in the
FIR, there can be civil dispute between the
parties, but if some crime is committed by one
party against the other during the pendency of
civil suit, it would require investigation. (Para
31)
It is convenient for the court to assume that the
allegations in the FIR are gospel truth and
thereafter close the chapter. However, the fact
remains that the truth is yet to emerge from the
statutory investigation to be conducted by the
investigating officer. There is also possibility
that the allegations made in the FIR are found
by the investigating officer to be false. In that
case denial of any relief to the petitioners would
not be in the interest of justice. As per Article 21
of the constitution of India right to life and
liberty of "we the people" cannot be curtailed
only because the courts have set up a standard
which provides that if by merely going through
the FIR commission of cognizable offence /
offences is found, no interference would be
required in under the Article 226 of constitution
of India and right to liberty of the petitioner
cannot be protected and he should take
recourse to Section 438 Cr.P.C for seeking
anticipatory bail. (Para 33)

Now a days FIR is lodged mostly by getting it
drafted by a legal expert or the head constable
(diwan) of the police station. In the first
information
report,
the
ingredients
for
constituting the alleged offence / offences are
incorporated so meticulously that the court may
lay its hand off by a bare reading of FIR itself.
The first information report is written with
precision and perfection so that it fits into the
convenient parameters of the court settled by
the court itself. (Para 34)

Although it is convenient for the court to deny
relief by the accused to the accused by just
going through the contents of FIR but where it
appears to the courts that there is possibility of
false implication and allegations in the FIR do
not appear to be absolutely correct and may
have been concocted to falsely implicate the
accused / petitioner then, irrespective of the
severity of allegations, interference is called by
court to protect the right to liberty of the
accused / petitioner. (Para 35)

After considering the totality of facts and
circumstances, like previous litigation between
the parties, earlier enmity between them
counter blast implication, etc., court should
interfere to protect right to liberty of accused
even if allegations in the FIR show commission
7 All. Shobhit Nehra & Anr. Vs. State of U.P. & Ors.
1187
of cognizable offence by accused/petitioner.
(Para 36)

In such a situation relegating an accused from
the court hearing matters under Article 226 of
the Constitution of India to avail remedy u/s 438
Cr.P.C before Sessions Court and then before
the High Court only for protection from arrest
during investigation amounts to harassment of a
litigant. On an average 200-300 Criminal Misc.
Writ Petitions are filed under Article 226 of the
Constitution of India per day before this court
challenging the first information reports. Not all
get heard promptly. During this period of
pendency of writ petition before this court
accused is under threat of arrest. If he fails get
any relief

## Text

_Characters 0–39,988 of 40,254. This is a partial read: ask again with offset=39988 for what follows._

1186 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 7 ILRA 1186
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Crl. Misc. W.P. No. 7463 of 2024

Shobhit Nehra & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Sri Rahul Chaudhary, Sri V.P. Srivastava (Sr.
Adv.), Sri Salil Singh

Counsel for the Opp. Parties:
Atul Kumar Shahi, G.A., Sri Vinay Sharan (Sr.
Advocate)

Criminal Law - FIR against petitioners
challenged- A long history of civil disputes
between the parties- However, it does not
mean that police investigation against the
criminal allegations during the pendency
of civil suit cannot be carried out- It is the
duty of constitutional court to secure
personal liberty of individuals- Protection
from
arrest
until
the
submission
of
chargesheet can be given- FIRs being
written by the experts- Relegating the
petitioners to the remedy under Section
438 CrPC- Not justifiable in light of huge
pendency of cases in St. of UP- Right to
liberty
protected
without
obstructing
investigation and without quashing FIR-
petition disposed of. (Paras 31, 33, 34, 35,
37, 38, 39, 40, 41, 43, 46 and 47)

HELD:

Keeping in view, the allegations made in the
FIR, there can be civil dispute between the
parties, but if some crime is committed by one
party against the other during the pendency of
civil suit, it would require investigation. (Para
31)
It is convenient for the court to assume that the
allegations in the FIR are gospel truth and
thereafter close the chapter. However, the fact
remains that the truth is yet to emerge from the
statutory investigation to be conducted by the
investigating officer. There is also possibility
that the allegations made in the FIR are found
by the investigating officer to be false. In that
case denial of any relief to the petitioners would
not be in the interest of justice. As per Article 21
of the constitution of India right to life and
liberty of "we the people" cannot be curtailed
only because the courts have set up a standard
which provides that if by merely going through
the FIR commission of cognizable offence /
offences is found, no interference would be
required in under the Article 226 of constitution
of India and right to liberty of the petitioner
cannot be protected and he should take
recourse to Section 438 Cr.P.C for seeking
anticipatory bail. (Para 33)

Now a days FIR is lodged mostly by getting it
drafted by a legal expert or the head constable
(diwan) of the police station. In the first
information
report,
the
ingredients
for
constituting the alleged offence / offences are
incorporated so meticulously that the court may
lay its hand off by a bare reading of FIR itself.
The first information report is written with
precision and perfection so that it fits into the
convenient parameters of the court settled by
the court itself. (Para 34)

Although it is convenient for the court to deny
relief by the accused to the accused by just
going through the contents of FIR but where it
appears to the courts that there is possibility of
false implication and allegations in the FIR do
not appear to be absolutely correct and may
have been concocted to falsely implicate the
accused / petitioner then, irrespective of the
severity of allegations, interference is called by
court to protect the right to liberty of the
accused / petitioner. (Para 35)

After considering the totality of facts and
circumstances, like previous litigation between
the parties, earlier enmity between them
counter blast implication, etc., court should
interfere to protect right to liberty of accused
even if allegations in the FIR show commission
7 All. Shobhit Nehra & Anr. Vs. State of U.P. & Ors.
1187
of cognizable offence by accused/petitioner.
(Para 36)

In such a situation relegating an accused from
the court hearing matters under Article 226 of
the Constitution of India to avail remedy u/s 438
Cr.P.C before Sessions Court and then before
the High Court only for protection from arrest
during investigation amounts to harassment of a
litigant. On an average 200-300 Criminal Misc.
Writ Petitions are filed under Article 226 of the
Constitution of India per day before this court
challenging the first information reports. Not all
get heard promptly. During this period of
pendency of writ petition before this court
accused is under threat of arrest. If he fails get
any relief his arrest is made by police granting
him little time to approach the Sessions Court
for seeking anticipatory bail and on being
unsuccessful seeking anticipatory bail from the
High Court. (Para 41)

It is clear from the above paragraph that in the
case where facts are hazy and the investigation
has just begun, High Court should permit the
investigation to proceed. In case the High
Court stays further investigation, it should
assign reasons. We are not staying the
investigation but it appears from the material
on record that in present case implication of
petitioners may be found to be false,
therefore, their right to liberty is required to
be protected during the period of statutory
investigation in the allegations made against
them in the FIR. Investigation can be stayed
in this case but that would come in the way of
speedy investigation which in requirement of
criminal administration of justice as held by
Apex Court in the above paragraph. We do
not
intend
to
delay
the
investigation
proceedings at all but for the reasons given
above intend to protect the petitioners from
arrest till investigation against them is
completed by police. (Para 43)

In view of the above consideration, this court is
of the view that without obstructing the
investigation and without quashing the FIR, the
right to liberty of petitioners deserves to be
protected for the detailed reasons assigned
herein above. (Para 46)

Petition disposed of. (E-14)
List of Cases cited:

1. St. ofHarayan Vs Bhajan Lal, AIR 1992 (SC)
604

2. Indian Oil Corporation Vs NTPC India Limited
& ors., 2006(6) SCC 736

3. Neeharika Infrastructure Pvt. Ltd., Vs St.
ofMah. & ors.., (2021) 19 SCC 401

4. Hema Mishra Vs St. ofU.P., 2014 (4) SCC 453

(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri V. P. Srivastava,
learned Senior Counsel assisted by Sri
Rahul Chaudhary and Sri Salil Singh,
learned counsel for the petitioners; learned
A.G.A. for the State-respondent no.1 & 2
and Sri Vinay Sharan, learned Senior
Counsel assisted by Sri Atul Kumar Shahi,
learned counsel for respondent no.3.

2. The present writ petition has
been preferred with the prayer to quash the
impugned First Information Report dated
23.04.2024, registered as Case Crime No.
0274 of 2024, under Sections- 436, 450,
392 and 120-B IPC, Police Station- Modi
Nagar,
District-
Commissionerate
Ghaziabad (Rural), and for a direction to
the respondents not to arrest the petitioners
in pursuance of impugned First Information
Report.

3. There is allegation in the FIR
that Modi Charitable Fund Society is a
registered society and Sandeep Kumar
Yadav is Secretary of the same. Modi
Industries Ltd., is a registered company and
Umesh Kumar Modi is its Managing
Director and petitioner no. 1 is Company
Secretary of the same. Various education
institutions are being run by the aforesaid
society and their records are kept in the
office of society situated at Modi Bhawan,
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
Modi Nagar. The petitioners and other
employees
of
Modi
Industries
Ltd.,
demolished the entire office of society and
destroyed the records kept therein and also
committed the robbery of valuable goods
kept in the office and hence the FIR was
lodged.

4. The brief facts pleaded in the
present case are as follows:-

5. The dispute essentially arises
because of a long-standing family dispute
between the Modi Family. There was a
MoU dated 24.01.1989 which was entered
in between the various members of the
Modi Family. In the said MoU there was an
attempt made by various members of the
Modi Group to settle their inter-se disputes
which
includes
various
properties
belonging to various family trusts and
societies.

6. Subsequently, disputes arose
between members of the Modi family for
the enforcement of MoU 1989 which
traveled up to the Hon'ble Supreme Court
of India in the case of (K.K. Modi vs. K.N.
Modi and Others, AIR 1998 SC 1297)
wherein
the
Hon'ble
Supreme
Court
categorically observed that there are
various
suits
which
arc
pending
adjudication for the enforcement of she
MoU 1989 before the Delhi High Court and
those issues should bc raised and decided
before the Hon'ble High Court of Delhi.
Copy of the judgment passed by Hon'ble
Supreme Court of India and in the case of
(K.K. Modi vs. K.N. Modi & others) has
been annexed as Annexure No.2 to this writ
petition.

7. Learned Single Judge of the
Delhi High Court vide its judgment dated
05.10.2007 (in the matter of K.K. Modi vs.
K.N. Modi & others i.e. CS (0S) No, 1394
/1996 and MK Modi vs. KK Modi & Ors.
i.e. CS (OS) No. 434/1998) gave a
categorical
finding
that
the
Hon'ble
Supreme Court (in the matter of KK Modi
vs. KN Modi & Ors. - AIR 1998 SCI297)
had not decided the validity of the MoU of
1989 and in fact had only recorded the
submissions made by some members of the
Modi Family belonging to Group A. It is
pertinent to mention that Dr. DK Modi who
is running the Multanimal Degree College
Society is part of Group A of the Modi
family. The relevant paragraphs of the
aforesaid judgment are reproduced herein
below for the sake of convenience:

"38. The argument that the
Apex Court had held the MOU had
been substantially acted upon by
the parties, and they must be held
to the settlement and for that
reason the suit to enforce the said
settlement could not be withdrawn
is also fallacious. The above
statement has been read out of
context and relied upon as a
finding/determination of fact by the
Apex Court, though it was only
recorded as a submission made on
behalf of the Group A parties. The
Court instead of commenting on the
said
submission,
directed
the
parties to raise the same before the
High Court. The said paragraph
from the copy of the judgment
placed amongst the order sheets in
the Part 1 file of suit no. 1394/96 is
reproduced herein for the sake of
ready reference.
""Group A also contends
that there is no merit in the
challenge to the decision of the
Chairman of IFCI which has been
made
binding
under
the
7 All. Shobhit Nehra & Anr. Vs. State of U.P. & Ors.
1189
Memorandum of Understanding.
The
entire
Memorandum
of
Understanding-including Clause 9
has to be looked upon as a family
settlement
between
various
members of the Modi family. Under
the
Memorandum
of
Understanding,
all
pending
disputes in respect of the rights of
various members of the Modi
family forming part of either Group
A or Group B have been finally
settled and adjusted. Where it has
become necessary to split any of
the existing companies, this has
also been provided for in the
Memorandum of Understanding. It
is a complete settlement, providing
how assets are to be valued, how
they are to be divided, how a
scheme for dividing some of the
specified companies has to be
prepared and who has to do this
work. In order to obviate any
dispute, the parties have agreed
that the entire working out of this
agreement will be subject lo such
directions as the Chairman, IFCI
may
give
pertaining
to
the
implementation of Memorandum of
Understanding.
He
is
also
empowered to give clarifications
and decide any differences relating
to
the
implementation
of
the
Memorandum of Understanding.
Such a family settlement which
settles disputes within the family
should not be lightly interfered with
especially when the settlement has
been already acted upon by some
members of the family. In the
present case, from 1989 to l995 the
Memorandum of Understanding
has been substantially acted upon
and hence the parties must be held
to the settlement which is in the
interest of the family and which
avoids
disputes
between
the
members of the family. Such
settlements have to be viewed a
little
differently
from
ordinary
contracts
and
their
internal
mechanism for working out the
settlement should not be lightly
disturbed. The respondents may
make appropriate submissions in
this connection before the High
Court. We are sure that they will be
considered as and when the High
Court is required to do so whether
in interlocutory proceedings or at
the final hearing.
39. The Hon'ble Supreme
Court
after
recording
the
submissions of the Group 'A'
parties, left it to the High Court to
decide
these
issues
"as
and
when....required".

8. A copy of the relevant pages of
the judgment dated 05.10.2007 passed by
Hon'ble Delhi High Court have been annexed
as Annexure No.3 to the writ petition.

9. Subsequently, Dr. D.K. Modi,
who is running the Multanimal Modi
Degree
College
Society
(pertinently
respondent no. 3 has filed the present FIR
who is the secretary of the said society)
initiated a Civil Suit before the Hon'ble
Delhi High Court bearing Case No. 991 of
2009, wherein, he sought enforcement of
he said MoU of 1989.

10. The Hon'ble Delhi High Court
on 05.12.2014 framed various issues for
adjudication of the Civil Suit No. 991 of
2009, wherein, one of the issue framed by
the Hon'ble Delhi High Court is reproduce
herein below:-
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
"Issue No. 14: Whether the
terms of the Memorandum of
understanding dated 24.01.1989 are
final and binding between the
parties and the plantiff is entitled to
the properties and assets earmarked
for Group A under the same ?

11. Number of interim reliefs were
sought by Dr. D.K. Modi in the said suit,
however, till date no interim relief has been
granted. The next date fixed before the
Hon'ble Delhi High Court is 13th of
August, 2024.

12. By the passage of time, the
disputes between the family members i.e.,
Mr. U.K. Modi (who is part of Group B of
the Modi family) and Dr. D.K. Modi (who
is part of Group A of the Modi family and
is also running the Multanimal Degree
College Society) worsened, resulting in
various attempts by Dr. D.K. Modi and
(first informant i.e., respondent no. 3 who
is secretary of the said society) to usurp the
properties of the Modi Industries Limited.
In furtherance to the said unsuccessful
attempts, an Original Suit No. 961 of 2020
was filed before the Court of Civil Judge
(Senior Division), Ghaziabad with same
allegations seeking permanent injunction
against the Modi Industries Ltd., and
Others (including the petitioners) from
interfering with the possession and working
of the society at its registered Office in
Modi Bhawan, Modi Nagar, Ghaziabad.
The said suit was accompanied with an
application under Order-39, Rule 1 and 2
read with Section 151 Cr.P.C seeking
temporary injunction.

13. Learned Civil Judge (Senior
Division), Ghaziabad upon the above
application under Order 39, Rule 1 & 2 was
pleased to grant an ex-parte injunction to
maintain status quo over the disputed
property and notices were issued to the
defendant therein.

14. Upon the service of the notice
of the suit No. 961 of 2020, the Modi
Industries Ltd., along-with the petitioners
herein
filed
their
objection
to
the
application under Order 39, Rule-1 & 2 on
11.12.2020.

15. The said objections were duly
considered by the learned Civil Judge
(Senior Division) Ghaziabad and upon
perusing the objection and considering the
material available on record, the learned
Court was pleased to reject the application
of the plaintiff under Order 39 Rule I & 2
CPC, vide its order dated 20.02.2021 and
vacated the ex-parte interim order. The said
order is a detailed order elaborating the
issue in dispute which is also the subject
matter of the present First Information
Report, moreover, the said order has been
concealed by the first informant in the
present first Information Report.

16. Being aggrieved by the order
dated 20.02.2021 passed by the learned
Civil Judge (Senior Division) Ghaziabad,
the society preferred a Misc. Appeal under
order 43, Rule-1 CPC, bearing Misc.
Appeal No. 3 of2021 (Multanimal Modi
Degree College Society vs. Modi Industries
Lid. & others) before the court of
Additional District Judge, Court no.5,
Ghaziabad which is pending till date and no
relief has been granted.

17. During the pendency of the
above appeal, the plaintiff / appellant
therein preferred an application before the
Court of Additional District Judge, Court
no. 5, Ghaziabad on 25.08.2023, inter-alia,
alleging therein that the defendants in the
7 All. Shobhit Nehra & Anr. Vs. State of U.P. & Ors.
1191
suit in order to cause irreparable loss to the
a plaintiff / appellant have deliberately
demolished the property in dispute. It is
relevant to mention here that, no allegation
with regard to Robbery, Fire, Explosive has
been made in the said application filed on
25.08.2023, in Misc. Appeal No. 3 of 2021.

18. The said application was
vehemently objected by the petitioners
along with Modi Industries Ltd., stating on
oath the correct factual situation and
categorically bringing on record that the
actual possession of the property in the
dispute is with Modi Industries Limited
only. The said appeal is pending till date for
consideration and no order has been passed
failing which the respondent no. 3 has
illegally triggered criminal law in motion
by lodging the impugned FIR.

19. For the same incident, the
present FIR has been lodged, where in,
informant has deliberately concealed filing
of Misc. Appeal No. 13 on 25.08.2023
which shows that the first informant with
all malicious intention is trying to give
criminal colour to civil dispute, which is
pending
between
the
parties
before
appropriate forum.

20. If the above was not enough,
Dr. D.K. Modi, who always had his eyes
over Modi Bhawan, Modi Nagar, in
pursuance to his illegal intent, made
another attempt of illegally and unlawfully,
usurping said assets of Modi Industries
Ltd., that is Modi Bhavan, Modi Nagar. He
fraudulently and behind the back of Modi
Industries Ltd., got a scheme sanctioned
from the Board for Industrial and Financial
Reconstruction (BIFR) where he illegally
and unlawfully claimed Modi Bhawan as
an asset of Modi Spinning and Weaving
Mills Company Ltd. (which is managed
and controlled by Dr. D.K. Modi). In
addition to the above, he even entered into
an agreement dated 24.04.2019 with
another member of the Modi family,
wherein, he again tried to distribute the said
asset i.e., Modi Bhawan, between himself
and another member of the family by
claiming his company (Modi Spinning and
Weaving Mills Company Ltd.) to be owner
of the said asset.

21. Modi Spinning and Weaving
Mills Company Ltd., then filed a petition
before the Hon'ble Delhi High Court (W.P.
No. 6238 of 2019), for implementation of
the scheme sanctioned by the BIFR or in
the alternative, the said agreement dated
24.04.2019. Dr D. K. Modi was also party
to said frivolous petition. As soon as Modi
Industries Ltd. (who was represented
through Petitioner No. 1) learnt about the
said illegal and unlawful act of Dr. D.K.
Modi, it filed appropriate applications
before the Hon'ble Delhi High Court and
opposed the unlawful actions of the Dr.
D.K. Modi. During course of hearing
before the Hon'ble Delhi High Court on
26.04.2023,
while
dealing
with
the
objection filed on behalf of Modi Industries
Ltd., the counsel appearing on behalf of
Modi
Spinning
and
Weaving
Mills
Company Ltd., (which is managed and
controlled by Dr. D.K. Modi) conceded that
the asset of Modi Industries Ltd., i.e., Modi
Bhawan, will not be treated as property
forming part of the scheme sanctioned by
the BIFR.

22. The learned Senior Counsel for
the petitioners has submitted that impugned
first informant has been lodged concealing
all the above facts and to exert pressure on
Modi Industries Ltd., to hand over the
possession of the property in dispute in
favour of Dr. D.K. Modi and his Society by
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
way of conspiracy on the basis of false and
fabricated First Information Report with
ulterior motives.

23. Present FIR is based on the
Application U/S. 156(3) Cr.P.C. filed by the
First Informant before the Chief Judicial
Magistrate, Ghaziabad who sought report
from the Police Station, Modi Nagar,
District Ghaziabad. In compliance of which
the report was submitted by the Police
Station, Modi Nagar, Ghaziabad, wherein it
has been categorically stated that upon
inspection of the premises in dispute no
construction or demolition activity was
found. Moreover, dispute with regard to the
same is already pending before the Hon'ble
Delhi High Court as well as Civil Suit is
pending before Civil Judge, Ghaziabad and
Misc. Appeal is pending before the
Additional District Judge Court no.5,
Ghaziabad.

24. In addition to the above
nowhere in the first information report it
has been disclosed that what loss has been
caused to the society, it is simply to take
defence in the pending WRIT C No.29271
of 2022 before this Honble Court, which
has been filed by another society managed
by Dr. DK Modi along with the present
Society.

25. Learned Senior Counsel for the
petitioners further submits that bare perusal
of the FIR reveals that the date of incident
as mentioned the First Information Report
is 10.12.2022, whereon, it is alleged that
petitioners were demolishing the property
in dispute and further they committed
robbery of articles namely table, chair, fan,
etc., however, the said allegations were
missing in the interim application moved
before the Additional District judge, Court
no.5 Ghaziabad and have appeared for the
first time in the present First Information
Report. The prosecution story even if
otherwise taken to be true does not
constitutes any offence under alleged
sections as the dispute is purely civil in
nature and pending before the competent
court of civil jurisdiction in which both the
parties,
i.e.,
petitioners
as
well
as
respondent no.3, are contesting parties and
respondent no.3 after failing to obtain any
favorable order of injunction or order in
Misc. Appeal has resorted to invoke the
criminal law for quick relief and exerting
pressure on the petitioners to succumb to
the dictates of Dr. K.N. Modi.

26. Learned Senior Counsel for the
petitioners
finally
submits
that
the
ingredients for constituting the offences
under Sections 436, 450, 392 and 126-B
IPC are not made out against the
petitioners. Dispute between the parties is
purely of civil nature and has been given
colour of criminal case only to exert
pressure on the Modi Industries Limited.
As per the judgments of Apex Court in
the case of State of Harayan vs. Bhajan
Lal, AIR 1992 (SC) 604 and in the case
of Indian Oil Corporation vs. NTPC
India Limited and Others, 2006(6) SCC
736, the impugned FIR deserves to be
quashed.

27. Counter affidavit has been
filed on behalf of respondent no. 3 wherein
it has been stated that the petitioners have
opened the lock of office of the society and
its institutions and robbed the important
goods and files kept therein. This was done
only to prevent the society to run smoothly.
The petitioners and their chairman want to
grab the society and several civil litigations
are already pending between the parties.
The offences alleged are fully made out
against the petitioners.
7 All. Shobhit Nehra & Anr. Vs. State of U.P. & Ors.
1193
28. Learned A.G.A appearing on
behalf of state-respondent nos. 1 and 2 has
also supported the case set up by the
respondent no. 3 against the petitioners.

29. After considering the rival
submissions, this court finds that there is
civil dispute between the parties pending
before the Civil Court, Ghaziabad in the
form
of
injunction
suit.
Regarding
commission of certain offences during the
pendency of suit, FIR has been lodged by
respondent no. 3.

30. After going through the
material on record, this court does not finds
the present case to be purely of civil nature.

31.

Keeping
in
view,
the
allegations made in the FIR, there can be
civil dispute between the parties, but if
some crime is committed by one party
against the other during the pendency of
civil suit, it would require investigation.

32. In the present case, the
allegations of commission of alleged crime
have been made against the petitioners who
are the employees of the Modi Industries
Limited by their rival party, respondent no.
3. Except the allegations made in the FIR,
there is no other documentary evidence
brought on record in support of the
allegations in the counter affidavit. Some
photographs have been filed along with
counter affidavit filed by respondent no. 3
which also do not clearly show any
demolition, fire, etc., as alleged in the FIR.
Even otherwise the above photographs are
to be looked into by the investigating
officer and without being part of case diary
they cannot be relied upon by the court.
There is civil dispute pending between the
family members of Modi family which can
be a ground for falsely implicating the
employees of Modi Industries Limited, the
petitioners.

33. It is convenient for the court to
assume that the allegations in the FIR are
gospel truth and thereafter close the
chapter. However, the fact remains that the
truth is yet to emerge from the statutory
investigation to be conducted by the
investigating
officer.
There
is
also
possibility that the allegations made in the
FIR are found by the investigating officer
to be false. In that case denial of any relief
to the petitioners would not be in the
interest of justice. As per Article 21 of the
constitution of India right to life and liberty
of "we the people" cannot be curtailed only
because the courts have set up a standard
which provides that if by merely going
through the FIR commission of cognizable
offence / offences is found, no interference
would be required in under the Article 226
of constitution of India and right to liberty
of the petitioner cannot be protected and he
should take recourse to Section 438 Cr.P.C
for seeking anticipatory bail.

34. Now a days FIR is lodged
mostly by getting it drafted by a legal
expert or the head constable (diwan) of the
police station. In the first information
report, the ingredients for constituting the
alleged offence / offences are incorporated
so meticulously that the court may lay its
hand off by a bare reading of FIR itself.
The first information report is written with
precision and perfection so that it fits into
the convenient parameters of the court
settled by the court itself.

35. Although it is convenient for
the court to deny relief by the accused to
the accused by just going through the
contents of FIR but where it appears to the
courts that there is possibility of false
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
implication and allegations in the FIR do
not appear to be absolutely correct and may
have been concocted to falsely implicate
the accused / petitioner then, irrespective of
the severity of allegations, interference is
called by court to protect the right to liberty
of the accused / petitioner.

36. After considering the totality of
facts and circumstances, like previous
litigation between the parties, earlier
enmity
between
them
counter
blast
implication, etc., court should interfere to
protect right to liberty of accused even if
allegations in the FIR show commission of
cognizable offence by accused/petitioner.

37. Very long FIR containing the
precise
allegations
making
out
the
ingredients for constituting the alleged
offences are mostly drafted by experts and
the courts are required to be cautious of
such FIRs which appear to be almost
perfect with regard to allegations made
therein. The human acts are imperfect and
the genuine FIR does not contains the
perfect recital supported by all the
ingredients for constituting all the offences
alleged. Therefore, protecting the liberty of
the
petitioner
/
accused
during
the
pendency of investigation is in accordance
of requirement of Article 21 of constitution
of India. No rule of convenience, niceties
of law of procedure can override the
constitutional mandate. Such a right is
vested in the citizen by the basic law of
land. In case relief is denied to the
petitioner / accused under Article 226 of
constitution of India and he is compelled to
obtain bail/ anticipatory bail during the
period of investigation and then if the
investigating officer finds, after concluding
investigation, that implication of petitioner
/ accused was not correct then the state has
not made any provision to indemnify such
an accused / petitioner for under going the
troubles in obtaining bail / anticipatory bail
which is not easy where the false
allegations made in the FIR are so
convincing and perfectly made out that
even the bail court refuses to grant bail.

38. In the state of Uttar Pradesh
Anticipatory
bail
application
is
not
entertained by the High Court directly. First
approach to the Sessions Court is necessary
in view of Full Bench decision of the High
Court in the case of Ankit Bharti vs. State
of U.P. and Another, passed in Crl. Misc.
Anticipatory Bail Application u/s 438
Cr.P.C. No. 1094 of 2020. Before the
Sessions Court time is lost in hearing of
anticipatory bail application. Mostly such
applications are rejected by the Sessions
Court. Then before the High Court second
inning starts. During this period police gets
sufficient opportunity to arrest an accused
or exempt him from arrest in lieu of money
or other considerations. Another practical
problem is large number of filing of
anticipatory bail applications in this court
per day.

39. On an average about 70-80
anticipatory bail applications are filed
before this court per day. There is also
pendency of about 2500 anticipatory bail
applications in this court, not to say of the
same before the sessions courts all over the
state in 75 districts. During pendency of
such
applications
many
accused
get
arrested by police and many anticipatory
applications are dismissed as infructuous.
Most of those who escape arrest have to
manage the police. As soon as the notice of
filing of anticipatory bail applications by an
accused
reaches
the
police
station
concerned the effort of his arrest gets
intensified by the informant in the police
both. The denial of prompt protection from
7 All. Shobhit Nehra & Anr. Vs. State of U.P. & Ors.
1195
arrest in a big source of corruption. The
same himself from arrest the accused has
no option but to please the police on day to
day basis in the hope getting protection
from arrest first in proceedings u/A 226 of
Constitution of India then in proceedings
under Section 438 Cr.P.C from the sessions
Court and then from High Court. Some
accused manage the police even till they
approach the Apex Court. These are stark
realities which a litigant facts on being
implicated in an FIR containing allegations
which made out cause of commission of
cognizable offence.

40.

With
heavy
filing
of
anticipatory bail applications before the 75
Sessions Courts of the state and also before
this court, if in the cases where from the
FIR and other material brought on record it
appears to the High Court that the
allegations in the FIR are though prima
facie credible but investigation should not
be hampered and correct facts should be
ascertained thereby, directing the accused
to avail remedy of anticipatory bail / bail
would further increase the number of cases
in courts. Besides causing harassment to
litigants it would increase the work of
Sessions court as well as this court. If
limited
protection
from
arrest
till
conclusion of investigation is granted to the
accused approaching this court under
Article 226 of the Constitution of India all
the above proceedings can be avoided and
work load of Sessions Court and High
Court can be reduced and unnecessary
harassment of litigant by police can also be
avoided. There are the peculiar practical
difficulties in this State in denying
protection to an an accused for limited
period under Article 226 of the Constitution
of India, while refusing the quashing of
FIR.

41. In such a situation relegating
an accused from the court hearing matters
under Article 226 of the Constitution of
India to avail remedy u/s 438 Cr.P.C before
Sessions Court and then before the High
Court only for protection from arrest during
investigation amounts to harassment of a
litigant. On an average 200-300 Criminal
Misc. Writ Petitions are filed under Article
226 of the Constitution of India per day
before this court challenging the first
information reports. Not all get heard
promptly. During this period of pendency
of writ petition before this court accused is
under threat of arrest. If he fails get any
relief his arrest is made by police granting
him little time to approach the Sessions
Court for seeking anticipatory bail and on
being unsuccessful seeking anticipatory
bail from the High Court.

42. We are not oblivious of the
mandate of the Apex Court in the case of
Neeharika Infrastructure Pvt. Ltd., vs.
State of Maharashtra and Others., (2021)
19 SCC 401. In paragraph 16 of the
aforesaid judgment the Apex Court has
held as follows :-

" In a given case, there
may be allegations of abuse of
process of law by converting a civil
dispute into a criminal dispute,
only with a view to pressurise the
accused. Similarly, in a given case
the complaint itself on the face of it
can be said to be barred by law.
The
allegations
in
the
FIR/complaint may not at all
disclose the commission of a
cognizable offence. In such cases
and in exceptional cases with
circumspection, the High Court
may stay the further investigation.
However, at the same time, there
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
may be genuine complaints/FIRs
and the police/investigating agency
has
a
statutory
obligation/right/duty
to
enquire
into
the
cognizable
offences.
Therefore, a balance has to be
struck between the rights of the
genuine complainants and the FIRs
disclosing
commission
of
a
cognizable
offence
and
the
statutory obligation/duty of the
investigating agency to investigate
into the cognizable offences on the
one hand and those innocent
persons against whom the criminal
proceedings are initiated which
may be in a given case abuse of
process of law and the process.
However, if the facts are hazy and
the investigation has just begun, the
High Court would be circumspect
in exercising such powers and the
High
Court
must
permit
the
investigating agency to proceed
further with the investigation in
exercise of its statutory duty under
the provisions of the Code. Even in
such a case the High Court has to
give/assign brief reasons why at
this stage the further investigation
is required to be stayed. The High
Court must appreciate that speedy
investigation is the requirement in
the criminal administration of
justice."

43. It is clear from the above
paragraph that in the case where facts are
hazy and the investigation has just begun,
High Court should permit the investigation to
proceed. In case the High Court stays further
investigation it should assign reasons. We are
not staying the investigation but it appears
from the material on record that in present
case implication of petitioners may be found
to be false, therefore, their right to liberty is
required to be protected during the period of
statutory investigation in the allegations made
against them in the FIR. Investigation can be
stayed in this case but that would come in the
way of speedy investigation which in
requirement of criminal administration of
justice as held by Apex Court in the above
paragraph. We do not intend to delay the
investigation proceedings at all but for the
reasons given above intend to protect the
petitioners from arrest till investigation
against them is completed by police.

44. Had it been a case with clear
allegations in the FIR and not hazy
allegations with mitigating circumstances like
pendency of civil dispute between the parties,
this court would never have interfered.

45. Even the Apex Court in the case
of Hema Mishra vs. State of U.P., 2014 (4)
SCC 453, has held that though High Court
has very wide powers under Article 226 of
Constitution of India but they are to be
exercised to prevent miscarriage of justice
and to prevent abuse of process of law by the
authorities indiscriminately making pre-arrest
of the accused persons. However, the High
Court should ensure that such powers is not
exercised so liberally as to convert it into
section 438 Cr.P.C. If the High Court finds
that in a given case if the protection against
pre-arrest is not given, it could amount some
miscarriage of justice, it would be free to
grant relief in the nature of anticipatory bail
in exercise of its power under Article 226 of
Constitution of India. However, such a blank
interim order of not to arrest or "no coercive
steps" cannot be passed mechanically in a
routine manner. Reasons are to be assigned.

46. In view of the above
consideration, this court is of the view that
without obstructing the investigation and
7 All. Smt. Geeta & Ors. Vs. State of U.P. & Ors.
1197
without quashing the FIR, the right to
liberty of petitioners deserves to be
protected for the detailed reasons assigned
herein above.

47. Accordingly, petition is
disposed of directing that till cognizance
is taken on police report under Section
173(2)
Cr.P.C.,
by
the
court,
the
respondents
shall
not
arrest
the
petitioners
pursuant
to
the
First
Information Report dated 23.04.2024,
registered as Case Crime No. 0274 of
2024, under Sections- 436, 450, 392 and
120-B IPC, Police Station- Modi Nagar,
District-
Commissionerate
Ghaziabad
(Rural), subject to cooperation in ongoing
investigation, which shall be concluded
within two months.

48. In case, the accused persons do
not cooperate with the investigation, the
investigating officer shall be at liberty to
file a recall application for recalling this
order before this court.
----------
(2024) 7 ILRA 1197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Crl. Misc. W.P. No. 9135 of 2024

Smt. Geeta & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Raj Kamal

Counsel for the Opp. Parties:
G.A., Prem Chandra Dwivedi
Juvenile Justice (Care and Protection of
Children)
Act,
2015,
Section
94
-
Presumption and determination of age -
Age of the victim is to be determined on
the basis of an ossification test where
there is no reliable document regarding
the age - If neither the birth certificate
from the school nor the high school
certificate nor the birth certificate issued
by a competent authority as required by
Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (in
short, 'Juvenile Justice Act') is available,
then the only option as per Section 94 of
the Juvenile Justice Act is to rely upon the
ossification test report. (Para 9)

Allowed. (E-5)

List of Cases cited:

1. Smt. Juli Kumari and Another vs. State of UP
and 2 Others, Criminal Misc. Writ Petition No.
17046 of 2022

2. State of M.P. vs. Anoop Singh, reported in
2015 (7) SCC 773

3. Suhani vs. State of U.P., 2018 0 Supreme
(SC) 1430

4. P. Yuvaprakash vs. State Rep. By Inspector of
Police, 2023 SCC OnLine SC 846

(Delivered by Hon'ble Vivek Kumr Birla, J.
& Hon'ble Arun Kumar Singh Deshwal, J.)

1. Heard Sri Raj Kamal, learned
counsel for the petitioners, Sri Prem
Chandra Dwivedi, learned counsel for the
respondents and Sri Ratan Singh, learned
AGA for the State-respondents.

2.