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2016 DIGILAW 308 (UTT)

Dharmendra v. State of Uttarakhand

2016-07-04

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. There is delay of 9 days in filing this appeal. We have heard the learned counsel for the parties. In the circumstances, the delay will stand condoned. The Application for condonation of delay is, accordingly, allowed. 2. Appellant is the writ petitioner. The writ petition was filed as Writ Petition (Criminal) No. 556 of 2016. The reliefs sought in the said writ petition are as follows:- “i. issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 15.04.2016 being case crime No. 69 of 2016 for the offence punishable under section 406, 420, 467, 468, 471 of IPC, P.S. Nehru Colony, District Dehradun (contained as annexure no. 1 to the writ petition). ii. issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no. 1 & 2 not to harass and arrest the petitioner in view of the impugned FIR till the collection of any credible evidence against the petitioner till the submitting the report U/s 173 of CrPC.” 3. The learned Single Judge took the view that, considering the nature of the offences (FIR was under Section 306, 420, 467, 468, 471 I.P.C.), no interference was called for at that stage. Appellant was to cooperate in the investigation. It was further directed that the appellant would be at liberty to appear before the court below and, in case, appellant moves an application before the court concerned for bail, the court shall consider the same, as far as possible, on the same day itself in accordance with law. The writ petition stood disposed of. 4. Under Rule 5 of Chapter VIII of the Rules of the Court, 1952, no special appeal will lie against an order passed in the exercise of criminal jurisdiction. Faced with this aspect of the matter, learned counsel for the appellant relied on the judgment of this Court in Rakesh Kumar vs. State of Uttaranchal and others, reported in 2013 (2) U.D. 7 . There, the learned Single Judge, after allowing the writ petition to be withdrawn, had made certain statements. It was found that there was no record before him, after having permitted withdrawal, to record a prima facie view that Section 420 of the Indian Penal Code was not made out. More importantly, the Division Bench proceeded, however, to hold as follows:- “2. It was found that there was no record before him, after having permitted withdrawal, to record a prima facie view that Section 420 of the Indian Penal Code was not made out. More importantly, the Division Bench proceeded, however, to hold as follows:- “2. …..Learned counsel for respondent no. 3 cited a judgment of a Division Bench of this Court, rendered in the case of Upendra Singh Maniyari Vs. Jagmohan Singh and others reported in 2010(1) U.D. 139 , for the purpose of demonstrating before us that an Appeal against an order passed on a petition filed for quashing a First Information Report is not maintainable. A look at the judgment would show that, after having had failed to obtain an order on the writ petition, writ petitioner cannot prefer an Appeal for the purpose of obtaining from the Appellate Court the order, prayed for in the writ petition. This judgment has no application to the present case. In the instant case, the Appeal is against an order, which has no existence in law at all. An appeal against such action is always maintainable.” 5. Far from assisting the appellant, this decision actually goes against the appellant. Here also, appellant sought to quash the FIR and sought other reliefs. The same has not been granted. Appellant seeks the reliefs sought for in the writ petition. The position is more similar to a decision in the case of Upendra Singh Maniyari vs. Jagmohan Singh and others, reported in 2010 (1) U.D. 139 . Therefore, the appeal would not be maintainable in view of the law laid down in Upendra Singh Maniyari’s case (supra), as the order passed is one which is passed in the exercise of criminal jurisdiction. 6. Secondly, learned counsel for the appellant also sought to derive assistance from another judgment of this Court in Special Appeal No. 103 of 2014 (Vivek Swaroop vs. State of Uttarakhand and others). There also, it is noted as follows:- “3. We personally feel that mere lodgment of an FIR does not, ipso facto, authorises an Investigating Officer to arrest a person accused in the FIR. In the circumstances, the matter must be left to the discretion of the Investigating Officer and only if the Investigating Officer is of the view that the case is such that arrest should be made, he shall be entitled to arrest.” 7. In the circumstances, the matter must be left to the discretion of the Investigating Officer and only if the Investigating Officer is of the view that the case is such that arrest should be made, he shall be entitled to arrest.” 7. We do not think that the principle laid down in Upendra Singh Maniyari’s case (supra) have been departed from as such. The question of jurisdiction is one, which goes to the root of the matter and, if an appeal is not maintainable, then that would be the end of the inquiry and no further orders can be passed as such. 8. Therefore, we would think that the appeal is not maintainable and it is, accordingly, dismissed without any order as to costs.