ADVOCATE SHASHANK SHEKHAR DWIVEDI - Criminal / Bail / Anticipatory Bail / Marriage / Lawyer / Advocate Allahabad High Court

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The relief sought in this petition is for quashing of the F.I.R. dated 28.7.2018, registered as case crime No.326 of 2018, under Sections 376, 506 I.P.C., P.S. Belipar, District Gorakhpur.
Learned counsel for the petitioner submits that the petitioner is innocent and has been falsely implicated in the present case with malafide intention. He further submitted that earlier an FIR was lodged by the sister of the petitioner, namely, Pooja against the husband of the respondent no.3, namely, Kailash and others, which was registered as case crime No.99 of 2017, under Sections 147, 452, 376, 427, 506 I.P.C., P.S. Belipar, District Gorakhpur in which charge sheet has been submitted against the husband of respondent no.3, hence, just as a counter-blast the impugned FIR has been lodged by respondent no.3 against the petitioner on the basis of an application under Section 156(3) Cr.P.C. after more than one of the incident. He further submitted that the allegation levelled against the petitioner is absolutely false, frivolous and baseless.No offence is made out against the petitioner, hence, FIR is liable to be quashed.
Learned A.G.A. opposed the prayer for quashing of the F.I.R. which discloses cognizable offence.
The Full Bench of this court in Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. and others (2000 Cr.L.J. 569) that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case as laid down by the Apex Court in various decisions including State of Haryana v. Bhajan Lal and others (AIR 1992 SC 604) attended with further elaboration that observations and directions contained in Joginder Kumar's case (Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260 contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under article 226 and the same are intended to be observed in compliance by the Police, the breach whereof, it has been further elaborated, may entail action by way of departmental proceeding or action under the contempt of Court Act. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the constitution as an alternative to anticipatory bail which is not invocable in the State of U.P. attended with further observation that what is not permissible to do directly cannot be done indirectly.
The learned counsel for the petitioner has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case.
Taking into account the allegations levelled against the petitioner and having scanned the allegations contained in the F.I.R., the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and/therefore no ground is made out warranting interference by this Court. The prayer for quashing the same is refused.
The petition lacks merit and is accordingly, dismissed.

The Allahabad High Court has observed that an accused gets an indefeasible right to 'default bail' if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.

This assertion came from the bench of Justice Syed Aftab Husain Rizvi who held that an accused has an indefeasible right to 'default bail' under proviso to section 167(2) Cr.P.C. if the charge sheet isn't filed within the stipulated time.

Essentially, a murder accused had applied for default bail under Section 167 (2) Cr.P.C. on November 25, 2021, after the completion of 90 days on November 24, 2021, from the first date of judicial remand as the Investigating Officer failed to file a police report under Section 173(2) 2 Cr.P.C. against him.

Now, the Chief Judicial Magistrate passed an order and called a report from the Additional Public Prosecutor on November 25, 2021. Till that point in time, the charge sheet had not been filed.

Pursuant to Court's order, the Public Prosecutor submitted his report. Thereafter a second report was submitted and meanwhile, a charge sheet was filed thus, the Court dismissed his plea for default bail.

Challenging the same, the accused moved to the High Court averring that he had availed his right of bail before the filing of the charge sheet and it does not matter whether an order had been passed on the aforesaid application or not.

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