Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 36 (UTT)

Mohd. Sahjaad v. State of Uttarakhand

2016-02-01

U.C.DHYANI

body2016
JUDGMENT : U.C. DHYANI, J. 1. By means of present writ petition, the petitioner seeks to quash the impugned FIR dated 22.01.2016, lodged by the respondent no. 3 being FIR No. 3 of 2016, under Sections 323, 504 and 354 of IPC, PS Kaladhungi, District Nainital. 2. An FIR was lodged against the petitioner for the offences punishable under Sections 323, 504 and 354 of IPC, PS Kaladhungi, District Nainital. It is the statement of learned counsel for the State that the petitioner is also wanted under Section 8/11/12 of the Protection of Children from Sexual Offences Act, 2012. It is further stated by learned AGA that the investigation of the case is under progress and it will take sometime to complete the same. 3. Learned counsel for the petitioner submitted, among other things, that Section 8 of the aforesaid Act entails punishment upto 5 years along with fine and Section 12 of the Act carries imprisonment of either description for a term which may extend upto three years and also shall be liable to fine. It is, therefore, the submission of learned counsel for the petitioner that the petitioner should be granted benefit of Arnesh Kumar vs. State of Bihar and Another, (2014) 8 SCC 273 . 4. Considering the facts of the case, it will be of no use keeping the present criminal writ petition pending for disposal, inasmuch as, the investigation is going on and ultimately, the investigation will come to its logical conclusion only under Section 173 of the Criminal Procedure Code either by a final report or by a charge-sheet. The same is accordingly being disposed of in view of the judgment rendered by Hon’ble Apex Court in Arnesh Kumar vs. State of Bihar and Another, (2014) 8 SCC 273 , wherein it was held as below:- “7.1 From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2 The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3 In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or more purposes envisaged by Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr. P.C.” 4. Needless to say that the Investigating Officer of the case shall abide by the aforesaid directions of Hon’ble Apex Court, before affecting the arrest, if any, of the petitioner. 5. The petitioner shall contact the I.O. of the case on 8th February, 2016 and on such subsequent dates as may be directed by the Investigating Officer. 6. The investigating officer is requested to complete the investigation without unnecessary delay in terms of sub-section (1) of Section 173 Cr. P.C. 7. If the petitioner does not appear before the Investigating Officer on 08.02.2016 as directed or respondent no. 6. The investigating officer is requested to complete the investigation without unnecessary delay in terms of sub-section (1) of Section 173 Cr. P.C. 7. If the petitioner does not appear before the Investigating Officer on 08.02.2016 as directed or respondent no. 3 is otherwise aggrieved with this order, liberty is granted to the respondent no. 3 for recalling of this Order. 8. Criminal Writ Petition is disposed of with the directions as above. 9. Let a copy of this order be supplied to the learned counsel for the petitioner today itself on payment of usual charges.