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2016 DIGILAW 630 (UTT)

Bhimsen Verma v. State of Uttarakhand

2016-09-26

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 quashing the impugned FIR dated 07.07.2016 registered as case crime no. 155 of 2016, under Sections 420, 467, 468, 471, 120B IPC, relating to P.S. Sahaspur, District Dehradun. (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 connection with case crime no. 155 of 2016, under Sections 420, 467, 468, 471, 120B IPC, P.S. Sahaspur, District Dehradun. (2) Heard learned counsel for parties and perused the documents brought on record. (3) An FIR was lodged by the complainant/respondent no.3 against the petitioner and two other accused, in respect of offences punishable under Sections 420, 467, 468, 471, 120B IPC. (4) It is the submission of learned counsel for the petitioner that, earlier also an FIR, being case crime no. 62 of 2011, was lodged in respect of the same property and in relation to the same sale deed against the same accused persons, but by different complainant under Sections 419, 420, 467, 447, 511, 504, 120B, 506 IPC with police station Sahaspur and in said FIR, final report was submitted by Investigation Officer after completion of the investigation. It is also submitted by learned counsel for the petitioner that protest petition is pending adjudication in relation to the said final report. Subsequently, the second FIR has been lodged by different informant/complainant in relation to the same landed property and which relates to the same sale deed with the addition of two more accused. It is also the submission of learned counsel for the petitioner that Section 467 IPC, prima facie, is not made out and if that offence is ignored then the other offences are covered by the judgment rendered by Hon’ble Supreme Court in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 8 SCC 273 . (5) Learned A.G.A. for the respondent State submitted that both the FIRs have been lodged by different complainants and their grievances are also different in nature. Learned A.G.A. further submitted that liberty of Section 41 Cr.P.C. should be granted to the petitioner only subject to his co-operation in the investigation of the case. (5) Learned A.G.A. for the respondent State submitted that both the FIRs have been lodged by different complainants and their grievances are also different in nature. Learned A.G.A. further submitted that liberty of Section 41 Cr.P.C. should be granted to the petitioner only subject to his co-operation in the investigation of the case. (6) It is provided that 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. (7) 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 petitioner. (8) Petitioner is directed to contact the Investigating Officer of the case on 03.10.2016, and on such subsequent dates as may be instructed by him (I.O.) for interrogation and investigation. (9) 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 at the admission stage itself with the consent of learned counsel for the parties present today. (10) 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. Still, liberty is granted to him to move for recall of this Order, if he feels aggrieved with the same. (Stay application no. 9013 of 2016 also stands disposed of).