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2016 DIGILAW 457 (UTT)

Satendra Singh Rathore v. State of Uttarakhand

2016-08-09

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 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 31.07.2016 in FIR no. 205 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. 205 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 31.07.2016 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 60 ft. in my and my wife Smt. Soni Yadav’s name 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 (petitioner), Satendra Singh Rathore s/o Sri Hari Prasad, r/o Jog Nawada, P.S. Baradari, District Bareilly (U.P.) and Mr. Dev Narayan s/o late Shri Gendan Lal r/o Baba Deep Singh Nagar, near Excise Officer, Rainital Road, Civil Lines, Rampur, P.S. and District Rampur (U.P.) for a total consideration of Rs.5,40,000/-, the registry of which was executed on 07.05.2012 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 the registry, when I (reporter) reached on above plot/land for taking possession of the same, I came to know that it was not the same plot registry of which was done, and keeping me in dark and by misleading me, registry of some other plot was done in my and my wife’s name. Thereafter, I (reporter) informed G.L. Sahu, Satendra Singh Rathore and Dev Narayan over phone that I have been cheated and you people by keeping me in dark registered some other plot in my and my wife’s name, mutation of which has already been done. Thereafter, I (reporter) informed G.L. Sahu, Satendra Singh Rathore and Dev Narayan over phone that I have been cheated and you people by keeping me in dark registered some other plot in my and my wife’s name, mutation of which has already been done. On this, G.L. Sahu, Satendra Singh Rathore and Dev Narayan 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. 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 through cheque from me, but despite paying the double amount, the possession of the plot was not handed over to me by the aforementioned persons. Aforementioned land mafias have cheated us and they had also sold the land of the colony allocated for the purpose of park. Now, 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). 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.? The law on the subject has been beautifully summed up by the Hon’ble Apex Court in Arnesh Kumar vs. 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? 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.” 7. The petitioner is, therefore, entitled to interim relief on this ground alone. 8. 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. 9. Petitioner is, therefore, directed to contact the Investigating Officer of the case on 16.08.2016, and on such subsequent dates, as may be instructed by him. 10. 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. 11. 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. 11. 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. 8140 of 2016 also stands disposed of.]