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2016 DIGILAW 397 (UTT)

Pradeep Kumar v. State of Uttarakhand

2016-07-27

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. The writ petitioner, by means of present Writ Petition, seeks to quash the impugned FIR No. 13 of 2015 (Case Crime No. 09 of 2015), under Sections 467, 468, 471 and 420 of IPC, lodged by respondent no. 3 at Police Station Pati, District Champawat. 2. A first information report was lodged by respondent no. 3 against the accused/writ petitioner for the offences punishable under Sections 467, 468, 471 and 420 of IPC on 11.09.2015. The petitioner was sitting comfortably in his house since then. He chooses to file the present writ petition only on 26.07.2016 and claimed interim protection from arrest. The allegations against him are not so simple. Those are grave. The allegation against him is that he committed forgery in UTET-I of year 2011. On the basis of some fake documents he succeeded in getting the job of Assistant Teacher. The first information report has been lodged by none else than the Deputy Education Officer. The First Information Report itself shows that the document was found forged after due inquiry. Relevant documents have been brought on record. 3. The question which arises for consideration of this Court is – whether the petitioner should be granted protection from arrest? “467. Forgery of valuable security, will, etc. – Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, moveable property, or valuable security, or any document purporting to be an acquaittance or receipt acknowledging the payment of money, or an acquaittance or receipt for the delivery of any moveable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 468. Forgery for purpose of cheating.- Whoever commits forgery, intending that the [document or Electronic Record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 471. 468. Forgery for purpose of cheating.- Whoever commits forgery, intending that the [document or Electronic Record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 471. Using as genuine a forged [document or electronic record].- Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]. 420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 4. Since the combined reading of the allegations levelled against the petitioner carries punishment of more than 7 years, therefore, this Court has no hesitation in coming to the conclusion that the decision held in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 SCC 273 is not attracted in this case so as to grant interim protection from arrest to the petitioner. The Hon’ble Apex Court gave following directions in the said decision of Arnesh Kuamr (supra) : “The petitioner should be arrested only when the Investigating Officer has reason to believe, on the basis of information and material collected, that he has committed an offence. Before making arrest, the Investigating Officer is required to satisfy himself 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. It will not be based upon the ipse dixit of the Police Officer. In other words, the petitioner shall be arrested only when the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. are satisfied.” 5. In other words, the petitioner shall be arrested only when the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 of Cr.P.C. are satisfied.” 5. Learned counsel for the petitioner has relied upon a decision of Hon’ble Apex Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in (2011) 1 SCC 694 . The said decision was given by the Hon’ble Apex Court on anticipatory bail which is not applicable in this State. But, it does not mean that any accused is remediless. He and every will file a criminal writ petition for obtaining stay from his arrest during the investigation and only, therefore, the present criminal writ petition has been filed by the writ petitioner. 6. Learned counsel for the petitioner drew the attention of this Court towards para 89, 90, 112 and 113 of Siddharam Satlingappa Mhetre (supra) case, which are excerpted herein below for convenience: “89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. 112. 90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused 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; (iv) The possibility of the accused’s likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available martial against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and the there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” 7. The accused-petitioner was alleged to have committed forgery in his UTET-I certificate and succeeded in getting the job of Assistant Teacher on the basis of said fake document. The nature and gravity of the accusation therefore suggests that the petitioner should not be granted protection from arrest. Since he himself has allegedly done it, therefore, he cannot plead that somebody else did it. He himself is beneficiary of such an illegal act. The first information report has been lodged by an officer of the Education Department. Why would he lodge a wrong first information report? Why would he levell wrong allegations against a Teacher of his own department. It, therefore, does not appear that the accusation have been made against the petitioner with the object of injuring or humiliating the petitioner by arresting him. If protection of arrest is granted to the petitioner in such a case, it will have bearing a large magnitude effect but does not appear to be a case of over implication of the petitioner with the aid of Section 34 and Section 149 IPC. There is no IOTA of doubt in the mind of the Court that the first information report is not frivolous. The Counter affidavit has not yet been called from the State. The observations made by this Court are based on the factual information of the first information report and copies of the documents which have been brought on record by the petitioner. In a nutshell, if a Teacher, who succeeded in getting the employment by making a forgery for UTET-I certificate is granted interim protection from arrest, the same will not serve the interest of justice. The Court is of strike a balance between the individual interest and societal interest. When the societal interest overweighs private interest, it will not be advisable to grant interim protection from arrest. 8. The Court is of strike a balance between the individual interest and societal interest. When the societal interest overweighs private interest, it will not be advisable to grant interim protection from arrest. 8. Since learned counsel for the petitioner wanted by this Court to give a final verdict in criminal writ petition, therefore, considering the aforesaid grounds, it is held that the petitioner is not entitled to any relief as claimed in the criminal writ petition. 9. The Criminal Writ Petition is, therefore, dismissed as the threshold.