Shamim Ansari vs State Of Uttarakhand & Anr.

Lok Pal Singh, J.

This writ petition has been filed by the petitioner seeking the following reliefs:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 12.10.2018 registered as Case Crime No.495 of 2018 under Section 420 of IPC and Section 103 and 104 of Trade Mark Act 1999 P.S. Kotwali Gangnahar Roorkee District Haridwar.

ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioner in Case crime no.495 of 2018 under Section 420 of IPC and Section 103, 104 Trade Mark Act 1999 P.S. Kotwali Gangnahar Roorkee District Haridwar till the pendency of present petition.

The allegations in the F.I.R. are that on 11. 10.2018 respondent no.3 received an information that in Quality Paints Ramnagar Industrial Area Roorkee, fake Birla White Wall Care Putty is being manufactured and sold. On this information, the complainant along with one other official of his Company reached Roorkee and with the help of police went to the said factory where some empty bags of Birla While Wall Care Putty and some bags filled with fake putty were recovered. It is further alleged that on seeing the complainant and police, the owner of the factory (petitioner herein) fled away from the spot. His servant Manoj was found at the spot. On being asked, he disclosed the name of owner of the factory as Shamim Ansari (present petitioner). He also informed about a factory at Saliyar near Tata Show Room at Dehradun road but when they reached at the said factory it was found that in said factory the product of complainant factory is not being manufactured.

I have heard learned counsel for the parties and have gone through the contents of the F.I.R.

It is well settled that in exercise of powers under Article 226 of Constitution of India or inherent powers under Section 482 of Cr.P.C. the High Court would have to proceed entirely on the basis of allegations made in the complaint or the First Information report. The Court has no jurisdiction to examine the correctness of the allegations otherwise. Hon'ble Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 SCC (Cri) 426 has categorized cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice :-

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private or personal grudge.

In view of the illustrations given by the Hon'ble Apex Court, this Court has to see whether the first information report lodged by respondent no.3 falls in any of the above categories.

A perusal of the first information report would prima facie suggest commission of cognizable offence. Moreover, the petitioner has not rebutted the allegations made in the F.I.R. Petitioner has also not mentioned anywhere in the pleadings under which brand name he is manufacturing alleged item, only this much has been pleaded that the petitioner is having a proprietorship firm namely M/s Quality Paints Company which is registered with GST having registration no.05GIAPS1520K1ZC. That apart, there is no whisper in the pleadings that the police is trying to arrest the petitioner without issuing notice u/s 41-A of Cr.P.C.

Since the allegations made in the FIR have not been rebutted in pleadings, the Court cannot infer anything in favour of the petitioner. Further the allegations made in the FIR also do not appear to be absurd; it also does not appear that the FIR has been maliciously instituted with an ulterior motive. In such circumstances, this Court is of the opinion that the case of the present petitioner does not come under any of the category illustrated in Bhajan Lal (supra) case, therefore no ground is made out to quash the impugned FIR.

Now, the next question which arises for determination by this Court is whether in a petition filed by the petitioner for quashing of the FIR the petitioner is entitled for any interim protection or not. There is no pleading by the petitioner that the Investigation Officer without issuing notice u/s 41-A of Cr.P.C. is trying to arrest the petitioner. Though the jurisdiction under Article 226 is extra ordinary jurisdiction to protect the liberty of the petitioner as guaranteed under Article 21 of the Constitution of India but the fact remains that this Court has observed in preceding paragraphs that it is not a fit case to quash the FIR, thus, in view of this Court, if the petitioner is apprehending his arrest, the petitioner has a legal right to approach the court concerned by filing an application u/s 438 of Cr.P.C. for seeking anticipatory bail.

State of Uttar Pradesh had enacted the U.P. Act 16 of 1976. The provisions were made in Section 9 whereby the Section 438 of Cr.P.C. was omitted w.e.f. 28. 11.1975. The State of Uttarakhand carved out on 9. 11.2000. The law applicable on the appointed date in the State of Uttar Pradesh is applicable in the State of Uttarakhand. The Parliament in its wisdom has amended the provisions of Section 438 of Cr.P.C. and has enacted Act No.25 of 2005 in Section 38 whereby the provisions of Section 438 of Cr.P.C. has been amended which is extracted hereinunder:-

"438. Direction for grant of bail to person apprehending arrest- [(1) Where any person has reason to belief that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge or a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice]"

The law made by the Parliament and provisions made for anticipatory bail in Cr.P.C. have not been omitted by the State of Uttarakhand by enacting a specific law in this regard. Thus, in view of this Court, the provisions of Section 438 of Cr.P.C., as amended by Act No.25 of 2005, are applicable in the State of Uttarakhand. Notice of the provisions of Act No.25 of 2005 has not been taken by the Court earlier. Since, the provisions of Section 438 of Cr.P.C. are applicable in the State of Uttarakhand, therefore, the remedy is available to the petitioner to avail the benefit of anticipatory bail, if he apprehends his arrest, before the High Court or court of Sessions.

With the aforesaid observation, writ petition stands disposed of. No order as to costs.