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2016 DIGILAW 619 (UTT)

Mohammad Saeem v. State of Uttarakhand

2016-09-22

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioners pray for the following reliefs, among others: “Issue a Writ, order or direction in the nature of certiorari quashing the impugned FIR No. 264 of 2016 dated 19.09.2016 under Sections 363 and 506 of IPC, PS Kotwali Kiccha, District Udham Singh Nagar lodged by the respondent no.3 and also be pleased to stay the arrest of the petitioners during the pendency of this Writ Petition before this Hon’ble Court, failing which the petitioners will suffer irreparable loss and injury (Annexure No.1).” 2. Heard learned counsel for the petitioners, learned counsel for the State, perused the documents brought on record and considered the grounds taken up in the writ petition. 3. An FIR was lodged against petitioner no. 2 and others for the offences punishable under Sections 363 and 506 of IPC. Learned counsel for the petitioners submitted that petitioner no. 1 is although not named in the FIR, but, the Police is also trying to apprehend him, inasmuch as, he has married to petitioner no. 2. The allegation against the petitioner no.2 in the FIR is that she kidnapped petitioner no.1, whose date of birth is 01.04.2001 and is a student of class XI. The report was lodged by father of petitioner no.1. 4. Learned counsel for the petitioner submitted that the offence punishable under Section 363 IPC complained of against the petitioner no. 2, in the FIR, entails punishment which may extend up to 7 years and shall also be liable to pay fine. The same is the punishment for the offence punishable under Section 506 IPC, unless threat is caused to death or grievous hurt. Learned counsel for the petitioners submitted that no ingredients of offence punishable under Section 506 IPC are made out on a bare reading of the FIR. 5. Although on bare reading of the contents of FIR, offence punishable under Section 363 IPC is made out, but, the fact remains that petitioner no. 1 has married to petitioner no.2 at Rampur on 31st August, 2016. Nikahnama has been filed to show that they married at Khattowala Maszid at Rampur according to Muslim rites and religion. According to Adhar Card, date of birth of the petitioner no.2 is 05.02.1992. By that analogy she is a major. 1 has married to petitioner no.2 at Rampur on 31st August, 2016. Nikahnama has been filed to show that they married at Khattowala Maszid at Rampur according to Muslim rites and religion. According to Adhar Card, date of birth of the petitioner no.2 is 05.02.1992. By that analogy she is a major. So far as the date of birth of petitioner no.1 is concerned, it is 01.01.1997 as per his Adhar Card. By that analogy, petitioner no. 1 is also major. But, it has been indicated in the writ petition itself that the date of birth of petitioner no. 1 according to High School certificate is 01.04.2001. It has been mentioned in para 3 of the writ petition that such date of birth has wrongly been recorded. 6. Mohd. Saeem and Shahjahan alias Shazia, are present before this Court duly identified by their counsel Mr. Piyush Garg, Advocate. Both appear to be major. Learned counsel for the petitioners submitted that a writ for protection from respondent no. 3 and his associates was filed by the petitioners before the Hon’ble Division Bench of this Court, being WPCRL No. 1297 of 2016, and the Hon’ble Court has been pleased to grant interim protection to them against respondent no. 3 and his associates. Mohd. Saeem submitted in the Court that his father/respondent no. 3 is unhappy because he (petitioner no.1) has married to respondent no.2, who is a divorcee. Petitioner no.2 stated that she was divorced seven months ago. 7. Considering the facts narrated above, this Court is of the onion that in view of the judgment rendered by Hon’ble Apex Court in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 Supreme Court Cases 273, the petitioners should be arrested only when the Investigating Officer has reason to believe, on the basis of information and material collected, that they have 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 petitioners 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. 8. In other words, the petitioners 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. 8. 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 of the petitioners. 9. Petitioners are directed to contact the Investigating Officer of the case on 29.09.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. 10. When the investigation of the case will be conducted, it will either culminate into filing of the charge-sheet or submission of final report. This Court has no occasion to interfere in the investigation in between. 11. 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, with the consent of learned counsel for the parties, who are present. 12. In the given facts and circumstances of the present writ petition, this Court does not feel it necessary to issue notice to the private respondent/respondent no.3. Still, liberty is granted to him to move for recall of this Order, if he feels aggrieved with the same. 13. Let a copy of this order be supplied to the learned counsel for the petitioners today itself on payment of usual charges.