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2016 DIGILAW 445 (UTT)

Girdhari Lal Sahu v. State of Uttarakhand

2016-08-05

UMESH CHANDRA DHYANI

body2016
JUDGMENT : Umesh Chandra Dhyani, J. 1. By means of present criminal writ petition, the petitioner seeks following reliefs, among others: "i) Issue a writ, order or direction in the nature of certiorari to quash the first information report dated 01.08.2016 in FIR No. 206 of 2016, under Sections 420, 506 IPC, at police station Kichcha, District Udham Singh Nagar. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 2 not to arrest and not to harass the petitioner in FIR No. 206 of 2016, under Section 420, 506 IPC at police station Kichcha, District Udham Singh Nagar." 2. An FIR was lodged by respondent No. 3 against the petitioner on 01.08.2016 for the offences punishable under Sections 420, 506 IPC. The relevant portion of said FIR reads as under: "...I (read informant/reporter) had purchased one plot 30 X 40 ft. in Bankhandinath Colony, adjacent to National Highway No. 74, situated at Village Chutki Deveria, P.S. Kichha, District Udham Singh Nagar from Sri Girdhari Lal Sahu @ Pappu Girdhari s/o Ram Swaroop, r/o Jogi Nawada, P.S. Baradari, District Bareilly (U.P.) and Satendra Singh Rathore s/o Sri Hari Prasad, r/o Jog Nawada, P.S. Baradari, District Bareilly (U.P.) for a total consideration of Rs. 3,33,000/-, the registry of which was executed on 21.01.2012 in the office of Registrar, Kichha by Mr. Mahendra Singh Bisht s/o Sri Umed Singh Bisht r/o village Satkhol, Tehsil and District Nainital, original khata holder of the plot, on being asked to do so by the said persons. After registration, I (reporter) took possession of the above plot/land and started constructing house over it, which was scheduled to be completed in one year, but in the meanwhile, some unknown persons demolished said construction. Thereafter, I (reporter) informed the G.L. Sahu and Satendra Singh Rathore over phone that some unknown persons have demolished certain portion of my house, who were saying that this land is not yours. On this, G.L. Sahu and Satendra Singh Rathore told me that we had some dispute with the original khata holder of the land, and due to this reason you have to wait for some days and we will resolve the matter. But, after a lapse of four years, despite my continuous efforts, neither any result has come out nor did the said plot came in my possession. But, after a lapse of four years, despite my continuous efforts, neither any result has come out nor did the said plot came in my possession. In the name of resolving the dispute and on the pretext of giving possession at the rate of Rs. 400/- per square yard, G.L. Sahu in the presence of his second wife Rekha Arya, who happened to be the MLA of Someshwar and, the then, S.H.O., P.S. Kichha, as also his Advocate, received the total consideration from me and gave assurance that the mistake in the registry would be rectified, but till date neither the possession of the plot was handed over to me nor the mistake got rectified. On the other hand, a case was registered against me in the court of Addl. District Magistrate (Finance), Udham Singh Nagar. I (reporter) also want to inform you that G.L. Sahu and his associates had also sold the land of the said Bankhandinath colony allocated for the purpose of park. On being asked to handover the possession of said plot, G.L. Sahu along with his son and nephew Satendra Rathore are threatening us with dire consequences...." 3. Section 420 IPC speaks about cheating and dishonestly inducing delivery of property. The same reads as under: "420. 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. Section 506 IPC envisages that whoever commits the offence of criminal intimidation shall be punished. 5. On a bare reading of FIR, offences punishable under Sections 420 and 506 IPC are prima facie made out. In other words, the allegations, prima facie, attract Sections 420 and 506 IPC, besides civil remedies which are available to the reporter. When a criminal intention is fastened in the transaction, civil dispute turns into a criminal dispute (offence). Foundation of criminal offence is laid. 6. The question is - whether the petitioner is entitled to be given the benefit of Section 41 Cr.P.C.? When a criminal intention is fastened in the transaction, civil dispute turns into a criminal dispute (offence). Foundation of criminal offence is laid. 6. The question is - whether the petitioner is entitled to be given the benefit of Section 41 Cr.P.C.? The law on the subject has been beautifully summed up by the Hon'ble Apex Court in Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273 . It is the bounden duty of this Court to reproduce the directions issued by the Hon'ble Apex Court in the said decision of Arnesh Kumar (supra). The same reads as under: "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 terms 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 office 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 present 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. 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." 7. The petitioner is, therefore, entitled to interim relief on this ground alone. 8. In the sequence of events, the petitioner has tried to give political colour to the incident. Learned Government Advocate has placed a list of criminal cases to show that the petitioner has criminal antecedents. The first case was registered against the petitioner in the year 1981, followed by others in 1982, 1983, 1985, 1986, 1990, 1991, 1993, 1995, 1996, 1997, 1998, 1999, 2002, 2003, 2004, 2006, 2007. The range of criminal activities of the petitioner varies from simple case of assault/abuse to Goonda Act, attempt to murder and even murder, besides cheating and forgery. In reply, learned Senior Counsel for the petitioner submitted that the petitioner has been acquitted in all cases, but for one which is under Section 302 IPC, which has been stayed by Hon'ble Allahabad High Court. 9. It may be noted here that the State of Uttarakhand was carved out from the erstwhile State of Uttar Pradesh only on 09.11.2000. The person against whom an attempt has been made to level accusations was not at the helm of affairs of the State in 1981 or, for that matter, till 2014. It, therefore, cannot be said that the person against whom accusations have been levelled in the writ petition was instrumental in lodging FIRs against the petitioner, which relate to incidents as far back as 1981 till 2007. It, therefore, cannot be said that the person against whom accusations have been levelled in the writ petition was instrumental in lodging FIRs against the petitioner, which relate to incidents as far back as 1981 till 2007. The Court is, therefore, of the opinion that the petitioner is not entitled to relief on those grounds, which have been narrated in the sequence of events, but he is entitled to interim relief on the basis of law propounded by Hon'ble Apex Court in Arnesh Kumar's case (supra). There appears to be no question of quashing the FIR at this stage. 10. The interpretation of Section 41 Cr.P.C. is unambiguous. It does not say that the petitioner cannot, at all, be arrested. It only empowers the Investigating Officer to arrest the wrongdoer only when the Investigation Officer has reason to believe, on the basis of information and material collected, that the accused has committed an offence. Before making the 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 Cr.P.C. It will not be based upon the ipse dixit of the Police Officer. If the conditions stipulated in Sub-Clauses (a) to (e) of Clause (1) of Section 41 Cr.P.C. are satisfied, the Investigating Officer is at liberty to arrest any wrongdoer/offender, but if the material is not found by him, then the law stipulates that the accused should not be arrested. 11. Petitioner is, therefore, directed to contact the Investigating Officer of the case on 12.08.2016, and on such subsequent dates, as may be instructed by him. The petitioner shall not leave the State of Uttarakhand without prior permission of this Court, till the investigation is completed. 12. When the investigation of the case will be conducted, it will either culminate into filing of charge sheet or submission of final report. This Court has no occasion to interfere in the investigation in between. Therefore, it will be of no use keeping the present criminal writ petition pending. Criminal writ petition is, accordingly, disposed of at the admission stage itself. 13. Since present writ petition is being disposed of without issuing notice to respondent No. 3, therefore, respondent No. 3 is granted liberty to move for recall of this order, if he feels aggrieved with the same. Criminal writ petition is, accordingly, disposed of at the admission stage itself. 13. Since present writ petition is being disposed of without issuing notice to respondent No. 3, therefore, respondent No. 3 is granted liberty to move for recall of this order, if he feels aggrieved with the same. [Stay application No. 7980 of 2016 also stands disposed of.]