Rakesh Kumar Tripathi vs State Of U P And 2 Others

Counsel for Petitioner :- Laxmi Vishwakarma,Kumar Parikshit,Nitesh Vishwakarma

Counsel for Respondent :- G.A.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

This petition has been filed with the prayer to quash the First Information Report registered as Case Crime No.0144 of 2023, under Sections 323, 504, 354(A) IPC, Police Station Colonelganj, District Prayagraj.

As per the allegations made in the FIR the husband of the informant was arrested in a case under Section 138 of Negotiable Instruments Act and complainant apparently was the petitioner in such proceedings. It is then alleged that the husband of informant was physically assaulted in the court premises by lawyers and thereafter the accused persons outraged the modesty of the victim/informant. Threat was being extended to recover the amount which was due and payable to the petitioner. It is also alleged that accused persons threatened the informant and pressure was being exerted upon her.

It is contended on behalf of the petitioner that allegations are absolutely false and that no incident has actually occurred. The report of Presiding Officer is referred to in order to submit that such a incident has not occurred inside the Court. It is also submitted that the lodgement of FIR is with the sole intent of harassing the petitioner and is merely to wreck vengeance upon the petitioner. It is also urged that though a transfer was sought but no such allegation with regard to the incident was pleaded in the transfer application. Reliance is placed upon para 26 of the judgment of the Supreme Court in the case of Salib vs. State of U.P. and others being Criminal Appeal No.2344 of 2023, decided on 08.08.2023.

Learned A.G.A. for the State opposes the writ petition and submits that the allegations made in the FIR are serious and correctness or otherwise of such allegations can be determined only at the stage of investigation.

We have perused the FIR as well as the context and background in which the FIR came to be lodged. It is true that the husband of informant was implicated in a case under the NI Act and was sent to jail and for such reason it is possible that a false report could be lodged by the informant. There is, however, a reason why we are not inclined to accept such plea and interfere in the matter. We have perused the records of the writ petition as also the supplementary affidavit, which clearly shows that though the offence under section 138 NI Act was bailable, yet, the husband of informant was not released on personal bond but was sent to jail. The petitioner is a lawyer and practicing in the same court. The possibility of some pressure being exerted to ensure recovery of amount for which cheque was issued cannot be ruled out. There is also no averment in the writ petition that the allegation with regard to causing injuries to the informant and her husband are factually incorrect. The correctness or otherwise of the allegations are not required to be commented upon by this Court, at this stage. These are all issues of fact which can be examined at the appropriate stage.

So far as the judgment relied upon by the petitioner in the case of Salib (supra) is concerned, the principle of law as has been culled out by the Supreme Court are contained in para 26, which is reproduced hereinafter:-

"26. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines."

The question as to whether the institution of proceedings are with an intent to harass or wreck vengeance is again an aspect to be determined at the stage of investigation. In the facts of the case, we prima facie find that the allegations in the FIR discloses commissioning of cognizable offence and, therefore the prayer made to quash the FIR otherwise cannot be entertained in view of the law laid down by the Supreme Court in the case of State of Telangana vs. Habib Abdullah Jellani, (2017) 2 SCC 779 and Neeharika Infrastructure Pvt. Ltd. vs.State of Maharashtra and others; (2021) SCC Online SC 315. We are not persuaded to hold that the case in hand falls in the category where institution of proceedings are with an intent to wreck vengeance, at the threshold.

Writ petition is, accordingly, dismissed.

Order Date :- 21.12.2023

Ashok Kr.