KAMLESH PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) INSTANT writ petition has been filed under Section 226 of the Constitution of India with the prayer for issuing a writ, order or direction in the nature of certiorari for quashing the impugned FIR dated 25.12.2008 registered at Case Crime No 487A/08, under section 147, 148, 149, 307, 436, 336, 352, 353 IPC, Section 7 Crl. Law Amendment Act and Section 3/6 Damage of Property Act, P.S. Kotwali, District Auraiya. Further prayer has been made for issuing a writ, order or direction in the nature of mandamus restraining the respondents from taking any coercive action against the petitioner in pursuance of the aforesaid FIR dated 25.12.2008. We have heard Sri Virendra Bhatia, Senior Advocate assisted by Sri Vidhu Bhushan Singh appearing for the petitioner, learned AGA for the State and perused the entire material on record. Learned counsel for the petitioner has stated that murder of one Executive Engeener of P.W.D. Auraiya was committed and in that murder case, one Shekhar Tiwari, sitting MLA of BSP was also arrayed as an accused. There was serious resentment among the public from this act of the accused persons. It is alleged that some incident was committed by the petitioner along with other 19 named and 100-150 unknown persons. There was brick betting from the side of demonstrators and public property was set to ablaze. Learned counsel for the petitioner mentioned that the petitioner had contested the election of MLA as Samajwadi Parity candidate against sitting MLA Shekhar Tiwari and the petitioner has been roped in this case falsely due to political vendetta. It is further said that offence under section 307 and 436 IPC can not be said to be made out from the averments of the FIR. The petitioner and other demonstrators were not armed with any lethal weapons. It is alleged in the FIR that the demonstrators were involved in brick-bats in order to cause death, but it has not been shown that any fatal or grievous injury was sustained by the police personnel or by other persons. For want of serious injuries, no offence can be said to be made out under section 307 IPC. Learned counsel for the petitioner further argued that it has not been alleged that any building used as dwelling house was put to fire by the petitioner and other demonstrators. From the averments of the FIR, the offence under section 435 IPC, can be made out, which is bailable. Due to political vendetta, the police wants to cause arrest of the petitioner, although no offence can be said to be made out against him. Learned AGA opposed the argument of learned counsel for the petitioner. It has been argued that the petitioner was leading an un-ruly mob of 100-150 persons and police personnels were attacked with the intention to cause death and property was damaged. We have considered the allegations made in the FIR and arguments of learned counsel for the petitioner and learned AGA and also relevant provisions. It will not be justified at this stage to comment that no offence at all against the petitioner and other persons named in the FIR is made out. Photo copies of the injury reports have been produced by the learned AGA for perusal. The injury reports show that no injury was grievous. It can not be said at this stage that any injury was fatal. In these circumstance, offence under section 307 IPC can not be said to be made out. We have also perused the FIR to ascertain whether any offence under section 436 is made out. It has not been alleged in the FIR that any building used as dwelling house or as a place of worship or as a place for the custody of property was put to fire. In this connection learned AGA has drawn our attention towards another FIR for the purpose of this case and learned AGA tried to impress that subsequently in continuity of this offence, the petitioner as well as other accused persons and demonstrators tress- passed the police office and burnt the available files and other articles also were put on fire. In this connection it will be suffice to say that police itself is not satisfied that subsequent offence was committed in the same transaction, otherwise there was no occasion to register different case with different crime number. Hence it will not be justified for disposal of this writ petition to take the FIR of another case into consideration to see whether any offence under section 436 IPC is made out. We agree with the arguments of learned counsel for the petitioner that in the circumstances of this case, offence cannot be said to be made out under section 436 IPC, although it will not be justified to make any observation regarding the merit of this case, as it will be the subject matter of investigation. On the basis of aforesaid discussion and reasons, we are of the opinion that the offences under section 307 and 436 IPC do not appear to be made out in this case against the petitioner and other accused persons and demonstrator, but it cannot be said that no offence at all is made out. Hence there is no justification to quash the FIR, but direction can be given to the courts below for considering the prayer for bail of the petitioner expeditiously. With these observation, the writ petition is finally disposed of and it is provided that in case the petitioner appears or surrenders in the court concerned within the period of 15 days from today and moves application for bail, then his application for bail be considered and disposed of expeditiously by both the courts below and if possible on the same day. For a period of 15 days, no coercive method shall be adopted against the petitioner to cause his arrest. Copy of the order be issued on the priority basis on payment of usual charges.