# Usha Tiwari & Anr v. State Of U.P. & Ors

- **Citation:** (2016) 6 ILRA 173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-16
- **Bench:** Sudhir Agarwal, Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usha-tiwari-anr-v-state-of-u-p-ors-44051
- **Pages:** 6

## Headnote

174 INDIAN LAW REPORTS ALLAHABAD SERIES

marriage was solemnized about six years back in a temple. The girl has died due to burn injuries sustained
on account of pouring of kerosene oil on 7.5.2016. Deceased's mother Kalawati Devi has lodged aforesaid
FIR against husband Santosh Tiwari, Nanad Usha Tiwari, father-in-law Surya Narayan Tiwari and two
petitioners. Petitioner-2 is father-in-law of deceased, and petitioner-1 is 'Nanad' of deceased.

Here in this case, an innocent girl having two children has died of burn injuries to the extent of 100% as
reported in post mortem report, in a broad day light on 7.5.2016. Girl's mother has lodged report on 8.5.2016
at about 1 P.M. She has specifically named girl's husband, father-in-law, sister-in-law(Nanad) and two
petitioners, uncle(Chacha) and aunt(Chachi), of deceased.

Reference made by learned counsel for petitioners to decision in Asha & another(supra) is thoroughly
misconceived in as much as that was a case where after trial, accused were convicted and sentenced to
ten years' Rigorous Imprisonment under Section 304-B IPC and judgment was confirmed by High Court. In
appeal, Supreme Court acquitted accused for want of compelling evidence sufficient for conviction of
accused persons under Section 304-B IPC. In the present case, it is only the stage of investigation when
petitioners have come to this Court Hence aforesaid judgment is not applicable whatsoever to the facts and
issues involved in the present case.In this backdrop, we find it appropriate in this particular case to direct
Investigating Officer to conclude enquiry/investigation expeditiously and in any case, within two months and
submit report to the Magistrate concerned Further we also observe that Magistrate having jurisdiction in
the matter shall also watch progress in investigation and ensure that guilty persons are not allowed to roam
freely due to mere laxity of Investigating Officer If necessary Investigating Officer shall not show any
hesitation in immediate arrest of accused persons.

Held: Para-
It is not pleaded anywhere in the writ petition that police has no jurisdiction or no material before it to
proceed with investigation against accused persons. If necessary, it may exercise its statutory power of arrest.

Case Law discussed:
Asha & another vs. State of Uttarakhand in Criminal Appeal No.1893 of 2013 decided on 1.11.2013, reported
in 2014(1) Alld JIC, 167., D.K. Basu vs. State of West Bengal reported in 1997(1) SCC 416,

## Text

6 All. Usha Tiwari & Anr. Vs State Of U.P. & Ors.

173
punished. In the matter of criminal administration of justice, delay at every stage is bound to
encourage offenders and frustrate purpose of object of punishment. Innocent members of society
will have no option but to live a fearful life. This situation would be a curse on an innocent and
law- abiding citizen and will be a boon to offenders. However, at every stage whether executive or
judiciary, persons managing system have to show serious concern and diligence so as to cater need
of the society in due time. They cannot test patience of people to watch and wait irrespective of any
control over a time period in functioning of responsible persons whether in police or judiciary.
They must act and execute their functions and duties with reasonable expeditiousness and pace
so that things are done within a reasonable time and prove to be effective yielding positive result
to entire society.

17. In this backdrop, we find it appropriate in this particular case to direct Investigating
Officer to conclude enquiry/investigation expeditiously and in any case, within two months and
submit report to the Magistrate concerned. Further, we also observe that Magistrate having
jurisdiction in the matter shall also watch progress in investigation and ensure that guilty persons
are not allowed to roam freely due to mere laxity of Investigating Officer. If necessary,
Investigating Officer shall not show any hesitation in immediate arrest of accused persons.

18. A copy of this order shall be communicated to respondent-2 as also CJM, Jaunpur
forthwith. Registry shall also furnish a copy of this order to the Principal Secretary (Home) for
information and compliance of observations made above, by issuing necessary instructions to all
concerned in the State.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.06.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Criminal Misc. Writ Petition No.- 14389 Of 2016

Usha Tiwari & Anr. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Om Prakash Mishra

Counsel for the Respondents:
G.A.

In present writ petition, petitioners have sought for a writ of certiorari to quash first information report,one
Shashi Tiwari was married with Santosh Tiwari son of Surya Nath Tiwari on 12.12.2008; it is said that
174 INDIAN LAW REPORTS ALLAHABAD SERIES

marriage was solemnized about six years back in a temple. The girl has died due to burn injuries sustained
on account of pouring of kerosene oil on 7.5.2016. Deceased's mother Kalawati Devi has lodged aforesaid
FIR against husband Santosh Tiwari, Nanad Usha Tiwari, father-in-law Surya Narayan Tiwari and two
petitioners. Petitioner-2 is father-in-law of deceased, and petitioner-1 is 'Nanad' of deceased.

Here in this case, an innocent girl having two children has died of burn injuries to the extent of 100% as
reported in post mortem report, in a broad day light on 7.5.2016. Girl's mother has lodged report on 8.5.2016
at about 1 P.M. She has specifically named girl's husband, father-in-law, sister-in-law(Nanad) and two
petitioners, uncle(Chacha) and aunt(Chachi), of deceased.

Reference made by learned counsel for petitioners to decision in Asha & another(supra) is thoroughly
misconceived in as much as that was a case where after trial, accused were convicted and sentenced to
ten years' Rigorous Imprisonment under Section 304-B IPC and judgment was confirmed by High Court. In
appeal, Supreme Court acquitted accused for want of compelling evidence sufficient for conviction of
accused persons under Section 304-B IPC. In the present case, it is only the stage of investigation when
petitioners have come to this Court Hence aforesaid judgment is not applicable whatsoever to the facts and
issues involved in the present case.In this backdrop, we find it appropriate in this particular case to direct
Investigating Officer to conclude enquiry/investigation expeditiously and in any case, within two months and
submit report to the Magistrate concerned Further we also observe that Magistrate having jurisdiction in
the matter shall also watch progress in investigation and ensure that guilty persons are not allowed to roam
freely due to mere laxity of Investigating Officer If necessary Investigating Officer shall not show any
hesitation in immediate arrest of accused persons.

Held: Para-
It is not pleaded anywhere in the writ petition that police has no jurisdiction or no material before it to
proceed with investigation against accused persons. If necessary, it may exercise its statutory power of arrest.

Case Law discussed:
Asha & another vs. State of Uttarakhand in Criminal Appeal No.1893 of 2013 decided on 1.11.2013, reported
in 2014(1) Alld JIC, 167., D.K. Basu vs. State of West Bengal reported in 1997(1) SCC 416,

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Kaushal Jayendra Thaker, J.)

1. Heard Sri Om Prakash Mishra, learned counsel for petitioners and perused the record.

2. By means of present writ petition, petitioners have sought for a writ of certiorari to
quash first information report registered as Case Crime No. 254 of 2016, under Sections 304-B,
498 A IPC and Section 3/4 of Dowry Prohibition Act, Police Station Maharajganj, District
Jaunpur.

3. One Shashi Tiwari was married with Santosh Tiwari son of Surya Nath Tiwari on
12.12.2008; though in the FIR, it is said that marriage was solemnized about six years back in a
temple. The girl has died due to burn injuries sustained on account of pouring of kerosene oil on
7.5.2016. Deceased's mother Kalawati Devi has lodged aforesaid FIR against husband Santosh
6 All. Usha Tiwari & Anr. Vs State Of U.P. & Ors.

175
Tiwari, Nanad Usha Tiwari, father-in-law Surya Narayan Tiwari and two petitioners. Petitioner-2 is
father-in-law of deceased, and petitioner-1 is 'Nanad' of deceased.

4. Sri O.P. Mishra, learned counsel for petitioners submitted that time of marriage has
wrongly been stated in FIR. The identity of petitioner-2 has not been correctly mentioned in as
much as father's name of petitioner-2 has not been disclosed and description of petitioner-1 is
also incorrect. Petitioners are residing separately from Surya Narayan Tiwari and his children,
after getting constructed their new house which is at some distance from the house of Surya
Narayan Tiwari, father-in-law of deceased. The agricultural land of petitioners is also separate
from his brother Surya Narayan Tiwari and therefore petitioners have nothing to do with the
family of Surya Narayan Tiwari.

5. It is further argued that from the date of marriage i.e. 12.12.2008 more than 7 years have
passed on the date of incident i.e. 7.5.2016 and therefore Section 304-B IPC is not attracted. The
marriage of deceased was solemnized in 2008 as is also evident from the fact that she had two
daughters Anshika and Dipika, born on 15.5.2009 and 26.6.2010. Despite the fact that petitioners
have no concern or role in the matter, police is harassing them and threatening to arrest which is
patently illegal. Petitioners have six children including one son and five daughters and their arrest
by police would disturb peaceful lives of petitioners' family. The husband of deceased also
sustained burn injuries which shows that there was no question of killing of deceased by any act
of third person but it was an accident for which none is responsible. Infact while saving the
deceased, husband also sustained certain burn injuries.

6. Initially when deceased was taken to District Hospital, Medical Officer who attended
deceased, opined that deceased had sustained 25% burn injuries but in the post mortem report,
level of burn injuries has been opined as 100%. Sri Mishra submitted that there is no ground, no
material whatsoever to point out guilt of petitioners and therefore if police is allowed to arrest
them, it will frustrate justice and would violate fundamental rights of petitioners' life and liberty.

7. Learned counsel for petitioners has argued at length referring to entire documents
appended to the writ petition and also placed before us Article 14, 22 & 226 of Constitution of
India, Section 41, 157(1) & 167 of Code of Criminal Procedure (herein after referred to "Cr.P.C.")
and provisions of Indian Penal Code(hereinafter referred to "IPC") under which FIR has been
registered. He contended that no offence under Section 304-B IPC is made out. Even otherwise
there are circumstances showing that the allegations of burning of deceased by petitioners and
others are incorrect and therefore, FIR in question should be quashed and this Court should
protect, in any case, petitioners from probable arrest by police. Reliance has also been placed
on a judgment in Asha & another vs. State of Uttarakhand in Criminal Appeal No.1893 of
2013 decided on 1.11.2013, reported in 2014(1) Alld JIC, 167.

8. Here in this case, an innocent girl having two children has died of burn injuries to the
extent of 100% as reported in post mortem report, in a broad day light on 7.5.2016. Girl's mother
176 INDIAN LAW REPORTS ALLAHABAD SERIES

has lodged report on 8.5.2016 at about 1 P.M. She has specifically named girl's husband, father-inlaw, sister-in-law(Nanad) and two petitioners, uncle(Chacha) and aunt(Chachi), of deceased.

9. It is not a case of petitioners that informant has any malice against petitioners to name
them in the report. Petitioners in paragraph 27 of writ petition have set up a case that there was no
attempt of killing deceased either by petitioners or other family members of Santosh Tiwari
meaning thereby, defence taken by petitioners is in respect to all the named accused in FIR and
that too at the stage when writ petition has been filed seeking writ of certiorari for quashing first
information report, i.e. at a nascent stage.

10. Scope of judicial review is limited to the extent that allegations contained in FIR, if
taken to be true on the face value show commission of no cognizable offence, else this Court
would not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
Whether accused persons are guilty of committing offence or have any role, is the matter of
investigation and not to be judged by this Court in writ jurisdiction under Article 226 of
Constitution of India treating matter as a regular trial. It is true that persons' liberty is of utmost
importance but when a cognizable heinous crime is committed, it is open to police to arrest a
person if the circumstances so justify and it is not for the Court to prepare a chart controlling
Investigating Officer in regard to exercise of his statutory power of arrest.

11. It is not pleaded anywhere in the writ petition that police has no jurisdiction or no
material before it to proceed with investigation against accused persons. If necessary, it may
exercise its statutory power of arrest.

12. Mere assertion that petitioners have apprehension of arrest or that police personnels
are coming to the house of petitioners to arrest them are not sufficient to suggest that police is
trying to arrest petitioners illegally or with gross abuse of its power. Unless there is proper
pleading supported by material to show that police is likely to exercise its power to arrest
maliciously, illegally or for the reasons other than bonafide or is violating the guidelines set by
the Court in D.K. Basu vs. State of West Bengal reported in 1997(1) SCC 416, we do not find
any justification to pass any order in a writ petition in which prayer for certiorari for quashing FIR
is made so as to obstruct statutory function of police in making investigation of heinous crime and
process of arrest which is an inherent part of investigation, is not to be interfered lightly or for
mere asking. Submission that petitioners have no concern with death of Shashi Tiwari or that
nobody has killed her but it was an accidental death, is a matter of investigation which cannot
be prejudged by us at this stage.

13. Reference made by learned counsel for petitioners to decision in Asha &
another(supra) is thoroughly misconceived in as much as that was a case where after trial,
accused were convicted and sentenced to ten years' Rigorous Imprisonment under Section 304-B
IPC and judgment was confirmed by High Court. In appeal, Supreme Court acquitted accused
for want of compelling evidence sufficient for conviction of accused persons under Section
304-B IPC. In the present case, it is only the stage of investigation when petitioners have come to
6 All. Usha Tiwari & Anr. Vs State Of U.P. & Ors.

177
this Court. Hence aforesaid judgment is not applicable whatsoever to the facts and issues
involved in the present case.

14. From perusal of FIR it cannot be said that a cognizable offence has not been
committed, if allegations contained therein are taken to be true on the face value.

15. In these facts and circumstances, we find no merit in this writ petition which is totally
misconceived and ill advised at this stage. It is accordingly dismissed with cost of Rs.50,000/-
which the petitioners shall deposit in Government Treasury within 30 days; failing which District
Magistrate concerned shall be entitled to recover as arrears of land revenue.

16. However, before parting we find it appropriate to place on record that here is a case
facts whereof justify that police should have acted with due expeditiousness and diligence to
investigate the matter. Report has been lodged on 8.5.2016 and it is already more than a month
since thereafter. It is an unfortunate case where an innocent girl has died of 100% burn injuries at
the residence of her in-laws. Hence police must have completed investigation with due pace and
should have reported before concerned Magistrate expeditiously. It should not have kept the matter
pending. Speedy investigation is now necessity of time so as to control crime in society. We have
no hesitation in observing that those who are responsible for maintaining law and order are not
showing their due concern and sincerity for expeditious enquiry, investigation and cooperation in
trial so that criminal matters may be concluded with reasonable pace and may prove a real and
effective deterrent to criminals. If investigation, inquiry or trial, as the case may be, continues and
takes long time in finalization, criminals and law breakers will be encouraged in indulging in
such activities frequently with the hope and trust that even in their life time they would not be
punished. In the matter of criminal administration of justice, delay at every stage is bound to
encourage offenders and frustrate purpose of object of punishment. Innocent members of society
will have no option but to live a fearful life. This situation would be a curse on an innocent and
law- abiding citizen and will be a boon to offenders. However, at every stage whether executive or
judiciary, persons managing system have to show serious concern and diligence so as to cater need
of the society in due time. They cannot test patience of people to watch and wait irrespective of any
control over a time period in functioning of responsible persons whether in police or judiciary.
They must act and execute their functions and duties with reasonable expeditiousness and pace
so that things are done within a reasonable time and prove to be effective yielding positive result
to entire society.

17. In this backdrop, we find it appropriate in this particular case to direct Investigating
Officer to conclude enquiry/investigation expeditiously and in any case, within two months and
submit report to the Magistrate concerned. Further, we also observe that Magistrate having
jurisdiction in the matter shall also watch progress in investigation and ensure that guilty persons
are not allowed to roam freely due to mere laxity of Investigating Officer. If necessary,
Investigating Officer shall not show any hesitation in immediate arrest of accused persons.
178 INDIAN LAW REPORTS ALLAHABAD SERIES

18. A copy of this order shall be communicated to respondent-2 as also CJM, Jaunpur
forthwith. Registry shall also furnish a copy of this order to the Principal Secretary (Home) for
information and compliance of observations made above,by issuing necessary instructions to all
concerned in the State.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.06.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Service Single/Writ Petition No.- 143 Of 2000

Branch Manager, Central Bank of India, Badgaon, District Gonda & Anr. ...Petitioners
Versus
IVth Additional District Judge, Gonda & Ors. ...Respondents

The present petition has been filed against the common judgment and order
dated 01.10.1999 passed by learned IVth Additional District Judge, Gonda in Appeal No.5 of 1988 and Appeal
No.9 of 1988, whereby Appeal No.9 of 1988 was dismissed in which the order dated 27.01.1988 passed by
the Prescribed Authority in P.W. Case No.85 of 1985 was confirmed. The petitioner inter alia has also
challenged the award dated 27.01.1988 passed by opposite party no.2 in DCPW Case No.85 of 1985 (Radhey
Shyam Mishra Vs. Branch Manager, Central Bank of India and another), whereby opposite party no.2 awarded
Rs.9,260.16 paise as wages to opposite party no.3- Radhey Shyam Mishra plus six times compensation
amounting to Rs.55,560.96 paise.

The petitioner-Central Bank of India is a Nationalised Bank. Contesting opposite party was employed as a
Clerk in the Central Bank of India and vide orderdated 22.01.1983, while he was posted in Lal Bahadur
Shastry Degree College Extension Counter, Gonda, was placed under suspension w.e.f. 25.01.1983 on
account of willful insubordination and violent behaviour in the premises of Branch. The suspension order was
served to the contesting opposite party on 24.01.1983. Subsequently, charge-sheet dated 05.02.1983 was
issued to the contesting opposite party. the Disciplinary Authority passed punishment order on 17.09.1984
imposing major penalty of "Stoppage of three increments in the time scale of pay permanently" and vide
order dated 18.09.1984 passed by the Chief Manager, Central Bank of India, Gorakhpur, reinstated the
contesting opposite party in service with certain conditions at Gonda Branch. On the same day, vide another
order dated 18.09.1984 was transferred. All the three orders was not accepted so the same were pasted by
the Branch Manager, Gonda on the notice board.

The core questions for consideration is as to whether the orders passed by the Appellate Authority and the
Prescribed Authority under 1936 Act read with 1962 Act are within the jurisdiction and whether the contesting
opposite party was entitled to get full wages during the period of his suspension in view of Circular dated
25.10.1983?

Court held that decisions of the Prescribed Authority as well as the Appellate Authority are based on author's
view mentioned in Para 6 of the 'Supplementary Note' at Page 105-106 and not on the basis of actual
provisions of the Third Bipartite Settlement, which provides that "after one year, the workmen is entitled for
full pay and allowances if the enquiry is not delayed for reasons attributable to the concerned workmen or any