- (1.) B. S. Chauhan, J. All these three writ petitions are for quashing the FIR dated 6-6-2003 (Annexure '8' to the writ petition), and at the request of the learned Counsel for the parties these petitions were tagged and heard together considering the Criminal Misc. Writ Petition No. 3176 of 2003 as the main case.
(2.) THE facts and circumstances giving rise to this case are that while making the recovery under the provisions of U. P. (Public Money) Recovery of Debt Act, 1972 read with U. P. Zamindari Abolition & Land Reforms Act, 1950 and the Rules framed thereunder, as Rules of 1952, one Mahmood Husain, the younger brother of the complainant Mirza Mahmood Husain, who was running a Medical Store, styled as Hayat Pharmacist, was taken by all the present petitioners for the purpose of making the recovery of certain amounts outstanding towards him. He was detained in a lock-up who died after some time and the complainant lodged the said FIR. Hence all these petitions for quashing the same have been filed. Shri A. P. N. Giri, learned Counsel appearing for all the petitioners has vehemently submitted that the FIR does not make out any offence preliminary enquiry conducted by the administration. The FIR has been lodged because of mala fides and with malicious intentions. The petitioners after arresting Shri Mahmood Husain produced him before the Tahsildar, the authority, who had issued the warrant of recovery under the said Rules of 1952, and once he had been produced before the competent authority under the Act and the Rules, the duty of the petitioners was completely over and they cannot be held responsible for the death in lock-up. More so, the post-mortem report does not show that death could be caused by the injuries shown in the post-mortem report, nor the cause of death shown in the post- mortem report is trustworthy. The State has issued the Government Order dated 8th March, 2001 (Annex. S. A. 2) to lodge the FIR in case of custodial death only after holding a proper enquiry. Therefore, the FIR is liable to be quashed. Shri A. K. Tripathi, learned A. G. A. has vehemently opposed the submissions made by Shri A. P. N. Giri contending that the cause of death or the post-mortem report cannot be considered at this stage. There is nothing on record to show that the petitioners after arresting the deceased detenue, had ever produced him before any statutory authority and handed over his custody to him, or the said authority had passed any order to detain him in lock-up. Therefore, whatever may be the procedure prescribed in the statute, in absence of any document to show that the deceased-detenue had ever been produced before any authority and the said authority had passed any order of detention in lock-up, petitioners cannot escape their liability, and thus, the petitions are liable to be dismissed.
(3.) SHRI S. S. Rathore, Advocate, appearing for the complainant has submitted that the post-mortem report if examined, makes it clear that the death was caused by Injury No. 1 received by the detenue- deceased in his fore-head, and as petitioners did not produce the deceased-detenue before any statutory authority, they are responsible for causing his death. And in case of custodial death, this Court should not give any indulgence at this preliminary stage for quashing the FIR when the investigation is yet to be carried out. We have considered the rival submissions made by the learned Counsel for the parties and perused the record.;