- (1.) AMAR Saran and S. K. Jain, JJ. This petition has been filed for quashing an F. I. R. and staying the arrest of the petitioner in Case Crime No. 139 of 2007 under sections 147,148,364,394,323,504,506 and 34 IPC read with 7 Criminal Law Amendment Act, P. S. Kareli, district Allahabad lodged by one Mohd. Sadiq.
(2.) THE allegations in the F. I. R. were that the petitioner, who was S. O. Kareli came along with S. O. Abdul Sattar to the house of the informant's sala Ejaz on 20. 2. 2006 at about 8-9 p. m. when the informant was present there in connection with the circumcision ceremony of his sala's son. THE two S. O. s then conducted a fruitless search for unlicensed weapons in that house in spite of protests by the informant and then they forced him to accompany them outside saying that they wanted to talk to him. THEy then pushed the informant into a waiting Scorpio vehicle in which the other named accused Aftab, Mahtab, Maqbool, Farmood and Kadir were present with arms. THE said named accused then took the informant to the house of Ainuddin hurling abuses and administering a beating to him on the way. M. P. Atiq Ahmad, Raju Lambu, Nausare and Mustav, Eklakh Ahmad alias Kalloo and Guddu were present there. THEy were all carrying arms. Atiq Ahmad ordered the others to conduct a search of the informant for making sure that he was not carrying a tape recorder. THEreafter Raju Lambu searched him and took out Rs. 5,300/- and a card issued by the Election Commission from his pocket and showed it to Atiq. THE M. P. asked them to give him the card, saying that this would prevent the informant from casting his vote in favour of the B. S. P. and that the money should be distributed amongst the others present. He gave two slaps to the informant and asked the others to beat him. THEn Atiq asked them to stop and warned the informant that when even the dead body of Rajua, M. L. A. was not found, then how could he muster courage to oppose him and that he would eliminate his entire family. THE informant got frightened that if the police personnel could pick him from his house and hand him over to the M. P. , then they could easily get him and his family murdered. It was in view of this pressure that he had agreed to depose in the Court as directed by the M. P. because under the S. P. Government, he was finding himself and his family unsafe. Now he was in a position to disclose the true version to the C. B. I and the administration and that if any untoward incident happened with him or his family, M. P. Atiq Ahmad and his people would be responsible. It should be noted that the writ petition of the similarly placed co-accused S. O. Abdul Sattar has already been dismissed by a Bench of Hon'ble S. Rafat Alam and Hon'ble V. D. Chaturvedi, JJ. in Criminal Misc. Writ Petition No. 12984 of 2007 by an order dated 30. 8. 2007 on the ground that the impugned F. I. R. prima facie discloses the commission of a cognizable offence. Counsel for the petitioner sought to argue, that S. O. Abdul Sattar was S. O. Soraon, which was 30 kms away hence his presence at the spot could be questionable. However so far as the petitioner being the S. O. of the police station of the area, Kareli there was nothing suspicious in his presence at the spot as the informant was also a history sheeter. Contrary to this it was also written in the supplementary affidavit to the petition that on the date of incident he was busy in his official duties at the P. S. and that it was unlikely that he would help in picking up the informant from the circumcision ceremony which was a public function and that in any case that was too petty a job for an officer of his level to perform. The credibility or otherwise of this version is a matter to be appreciated during investigation and trial and presently we see no significant distinction in the petitioner's case from the case of S. O. Abdul Sattar which was dismissed as above mentioned. It was next argued by the petitioner's Counsel that as per the FIR version the petitioner could not be held liable for the aforementioned offences under sections 147,148, 364, 394, 323, 504, 506 and 34 IPC read with 7 Criminal Law Amendment Act. We are not in agreement with this submission. If the petitioner had apprehended the informant from his house and pushed him into the waiting Scorpio car, which took him to the M. P. Atiq Ahmad, who gave out threats to him, then it could not be said that there was no complicity of the petitioner for committing any of the said offences, whose, veracity as mentioned above will be adjudged during investigation and trial and cannot be foreclosed by means of a writ petition under Article 226 of the Constitution. Furthermore, it could not be said that the averments in the FIR of Mohd. Sadiq, who was a witness in the murder case of Raju Pal, were entirely false, because even though he was shown as an eye-witness in Raju Pal's murder, he would not normally have turned hostile in Court or given evidence in accordance with the dictates of the M. P. , unless some extraneous pressure was brought to bear on him.
(3.) THE next contention of the petitioner's Counsel that the FIR was lodged with inordinate delay after 18 months, is also not of much consequence looking to the nature of the informant's allegations of being picked up from his village with the aid of the police and of being terrorised by the M. P. and his associates. In the circumstances described hereinabove his failure to complain to the Court in the interim period during the S. P. rule loses significance. THEre can be no presumption that every case where an FIR is lodged with delay, it is a mala fide and politically motivated FIR and the same must be invariably quashed and the FIR stayed. THE inimitable words of Hon'ble Krishna Iyer, J. , in State of Punjab v. Gurdial Singh, (1980) 1 SCR 1071 at p. 1076 = AIR 1980 SC 319 at p. 321. should be recalled in this context: "if the use of power is for the fulfilment of a legitimate object, the actuation or catalisation by malice is not legicidal". Unless on a plain reading the delayed FIR appears to be completely false, concocted and inherently unbelievable, no ground exists for quashing of an FIR and staying the arrest on the ground of political malice. If the accused were powerful and well-connected under an earlier political set up, it would not be surprising if no criminal proceedings were initiated against them at that time and were only initiated after the change in the political dispensation. To the same effect it was pointed out by Hon'ble Hidayatullah, J. , speaking for the Constitution Bench in Krishna Ballabha Sahay v. Commission of Enquiry : (1969) 1 SCR 387 = AIR 1969 SC 258. " THE contention that the power cannot be exercised by the succeeding ministry has been answered already by this Court in two cases. THE earlier of the two has been referred to by the High Court already. THE more recent case is P. V. Jagannath Rao v. State of Orissa. (1968) 3 SCR 789 = AIR 1969 SC 215. It hardly needs any authority to stattf that the inquiry will be ordered not by the Minister against himself but by some one else. When a Ministry goes out of office, its successor may consider any glaring charges and may, if justified, order an inquiry. Otherwise, each Ministry will become a law unto itself and the corrupt conduct of its Ministers will remain beyond scrutiny ": We therefore do not attach significance to the fact that another Criminal Writ Petition No. 12300 of 2007 had been filed by the petitioner seeking stay of his arrest against an FIR at case Crime No. 189 of 2007 under section 364/323/504/506 IPC, Police Station Kydganj, district Allahabad lodged by one Om Prakash Pal who was the driver of the vehicle, which was following Raju Pal at the time of his murder and who had been taken by the petitioner to the house of M. P. Atiq Ahamd and told to give evidence as he directed otherwise he would be murdered and had been subjected to similar treatment as the informant of the present case and had thereafter deposed as directed by the M. P. and his supporters in Court. Even though a bench consisting of consisting of Hon'ble K. S. Rakhra and Hon'ble B. A. Zaidi, JJ. , by an order dated 1. 9. 2007, had stayed the arrest of the petitioner in that writ petition on the ground that the report was lodged with delay and no criminal complaint was filed in the meanwhile, we are not inclined to follow the said interim order in this writ petition, as we do not think that delay in such circumstances can provide a ground either for quashing the FIR or for staying the arrest of the accused police officer. In this view of the matter, we find no force in this writ petition, which is dismissed in limine. .;